Fritz Hollings

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, I thank the distinguished Senator, first, from Massachusetts, for his presentation this morning, in a most meaningful way and, of course, the Senator from California. She really keynoted the issue as it should be in a very cogent and persuasive fashion. When we say consumers, that is the people versus those making a profit on defective products, with shoddy manufacturing. America is the safest place in the world to live. That is part and parcel, as mostly I would say, I guess, because of our State legislatures. The State legislatures have acted on the need of product liability provisions. They have acted and they have maintained their laws. But it now becomes an assault in the name of a cost of a hotel room, or a ski lift, and such nonsense as that, trying to really move the attention, I guess, of the Senators, thinking they, frankly, do not have much sense and will go along with that kind of nonsense. Thinking that Senators will not understand what the Senator from California is trying to emphasize--these are real life injuries, and the more we get into them in a very meaningful way, as we do in trial law practice, the less danger and injury has been caused. So I could not express my gratitude enough to the Senator from California. I wish we could go ahead and vote right now, but I will retain the balance of my time.

Mr. HOLLINGS. I will be delighted to yield the distinguished Senator 15 minutes.

Mr. HOLLINGS. Mr. President, that ``Suing for Safety'' gives case after case after case where it had not been good for the consumer. The consumer had to get a trial lawyer, had to go before 12 jurors in his community, had to go up on appeal and pay all the court costs and finally get a verdict. Why is it good for the consumer and good for the business? On account of product liability. We have it at the State level, and it is working. That is why I put that case in the Record. We know what business does. Some businesses will cut corners, they will not give warnings, they try to save money. Everybody knows there were a few dollars in the Pinto case. Now we see time and again, week after week, recalls. They just recalled one of my cars to put another safety device on. Why do you think that was done? On account of the trial lawyers. Product liability. That is why they have done it, and everybody in the Senate knows it. But the little poll says get rid of the lawyers, like Dick the Butcher in Henry VI, ``Kill all the lawyers.'' That is a popular thing. So that is what we have. I reserve the remainder of my time. Exhibit 1 [From U.S. News & World Report, Mar. 18, 1996] Stupid Court Tricks (By John Leo) Some judges and some judges' decisions are better than others. Here are some others: In New York City, a movement is under way to impeach Criminal Court Judge Laurin Duckman. A 33-year-old woman sought court protection from a former boyfriend, a convicted rapist, who had attacked her three times. Despite the beatings, Judge Duckman coolly noted that the woman was ``bruised but not disfigured,'' lowered bail in the case and suggested that the man would stop bothering the woman if she gave back his dog. Three weeks later, the man shot her to death. In another domestic violence case, Judge Duckman allowed a beater to go free hours after a jury had found him guilty. Last month, the man was charged with another attack on the same woman. North of the border, the loopiest judicial decision of the year came when the Canadian Supreme Court ruled that drunkenness was a defense against rape charges. It ordered a new trial for a Montreal man who had been convicted of sexually assaulting a 65-year-old woman in a wheelchair. The court predicted that the alcohol defense would be rare, but within weeks drunks and addicts were being acquitted across Canada. Sanity prevailed, however. Parliament passed a law banning the drunkenness defense. Judge Rosemary Barkett, a Clinton appointee, has brought sexual harassment litigation into the fifth grade. Writing for the majority on the 11th Circuit Court of Appeals last month, she said that the mother of a fifth grader who was repeatedly pestered by another fifth grader could sue the school district under Title IX of the 1972 Education Amendments. In a recent dissent in another case, Barkett implied that a statute requiring drug tests for some state jobs in Georgia may violate the First Amendment by seeking to keep persons ``who might disagree with the current policy criminalizing drug use'' out of government. Another Clinton appointee, Judge Harold Baer, caused a spreading uproar with his colorful botching of a drug case. Police in a high-activity drug area at 5 a.m. noticed a slowly moving car with out-of-state plates. The car stopped, the driver popped the hood of the trunk and four men placed two large duffel bags inside. When police approached, the men moved away rapidly in different directions. One ran. Police searched the trunk and found 80 pounds of cocaine. The driver, a Michigan woman, confessed in a 40-minute videotaped statement, saying that this was just one of more than 20 large drug buys she had made in Manhattan. But Judge Baer ruled that police had conducted an unreasonable search. What about the men bolting from the scene? Since residents in the area regard cops as corrupt and abusive, opined the judge, it would have been unusual if the men hadn't run away, so fleeing was no cause for a search. In other words, the perps had reason to be suspicious of police, but police had no reason to be suspicious of the perps. Since the confession stemmed from the search, Baer threw it out. The prevailing New York opinion: Judge Baer is an idiot. Can the state legally confiscate the property of innocent people? The U.S. Supreme Court said yes this month in a Detroit case. A 5-to-4 ruling allowed confiscation of a 1977 Pontiac half-owned by a woman after her husband was arrested for having sex with a prostitute in the car. The Wayne County prosecutor's office had sued to confiscate the car under Michigan's public nuisance statutes. In a dry dissent, Justice John Paul Stevens said that until this case, no state had ``decided to experiment with the punishment of innocent third parties.'' In a notably tortured decision, the federal 10th Circuit Court of Appeals ruled that a male prisoner who wishes to become a female is not entitled to get hormone injections at public expense under the 14th Amendment, but he may be entitled to them under the Eighth Amendment, which bans cruel and unusual punishment. Much egg on is on the faces of federal judges of the Fourth Circuit Court of Appeals for their handling of the Rodney Hamrick case. While serving prison time for threatening the life of President Reagan, Hamrick built five bombs and threatened to blow up a courthouse, an airplane and NAACP headquarters. While serving more time for threatening to kill the judge in his case, he built and mailed a bomb to a U.S. attorney who had prosecuted him. The bomb fizzled, scorching the envelope but not detonating. Hamrick was convicted, but a three-judge panel of the Fourth Circuit reversed the conviction on grounds that the bomb was not a deadly or dangerous weapon because it had been badly built. This decision flew in the face of a relevant Supreme Court ruling that even an unloaded gun could be considered dangerous. For some strange reason, Solicitor General Drew Days did not request a rehearing on the Hamrick ruling by all the judges of the entire Fourth Circuit. But the judges decided to do so on their own, and they narrowly upheld Hamrick's conviction. Eight judges thought that the faulty bomb qualified as dangerous, while six judges disagreed. No word yet from Drew Davis. Is anybody in charge here? Exhibit 2 [From the Trial magazine, November 1983] Suing for Safety (By Thomas F. Lambert, Jr.) It has been well and truly said, ``If you would plant for a year, plant grain; for a decade, plant trees; but if you would plant for eternity, educate a man.'' For nearly four generations, ATLA has been teaching its men and women, and they have been demonstrating to one another, that you can sue for safety. Indeed, one of the most practical measures for cutting down accidents and injuries in the field of product failure is a successful lawsuit against the supplier of the flawed product. Here, as well as elsewhere in Tort Law, immunity breeds irresponsibility while liability induces the taking of preventive vigilence. The best way to make a merchant responsible is to make him accountable for harms caused by his defective products. The responsible merchant is the answerable merchant. Harm is the tort signature. The primary aim at Tort Law, of the civil liability system, is compensation for harm. Tort law also has a secondary, auxiliary and supportive function-- the accident prevention function or prophylactic purpose of tort law--sometimes called the deterrent or admonitory function. Accident prevention, or course, is even better than accident compensation, an insight leading to ATLA's longstanding credo: ``A Fence at the Top of the Cliff Is Better Than an Ambulance in the Valley Below.'' As trial lawyers say, however, ``If you would fortify, specify.'' The proposition that you can sue for safety is readily demonstratable because it is laced and leavened with specifics. They swarm as easily to mind as leaves to the trees. accident prevention through successful suits in the products liability field (1) Case for Charcoal Briquets Causing Death from Carbon Monoxide. Liability was imposed on the manufacturer of charcoal briquets for the carbon monoxide death and injury of young men who used the briquets indoors to heat an unvented mountain cabin. The 10-pound bags read, ``Quick to Give Off Heat'' and ``Ideal for Cooking in or Out of Doors.'' The manufacturer was guilty of failure to warn of a lethal latent danger. Any misuse of the product was foreseeable because it was virtually invited. Next time you stop in at the local supermarket or hardware store, glance at the label on the bags of charcoal briquets. In large capital letters you will find the following: ``WARNING. DO NOT USE FOR INDOOR HEATING

Mr. HOLLINGS. We are all disturbed about the criminal court system. But not, where the distinguished Senator from Connecticut served as the majority leader in the State legislature of Connecticut, he acts-- ``walking down the street,'' that he is the only one walking down the street talking. Come on. We even had one former member went up as Governor and pull an income tax on the people of Connecticut, Governor Weicker. The people of Connecticut will respond, with leadership. And they do have a product liability statute in that State. But these folks come and talk about fair. ``Yes, I hope I can certainly get this shot so I can continue breathing.'' I mean, grown folks, men and women in the U.S. Senate, acting like this? That case would be thrown out. Talking about what is not good for the consumer, good for business. I ask unanimous consent to have printed in the Record ``Suing For Safety.'' It is by Thomas Lambert, Jr. I ask to have this printed in the Record, included with the ``Stupid Court Tricks.'' Include them both.

Mr. HOLLINGS. Mr. President, I yield the distinguished Senator from Alabama 15 or more minutes, as he may require.

Mr. HOLLINGS. Mr. President, my distinguished colleague from West Virginia just thanked a group of people. I wondered who they were. I knew no lawyer who had ever tried a case in a courtroom would ever put up a bill of this kind. So, having sponsored this measure, they would have to have some extraneous help of some kind to fashion an abortion as this ``conspiracy''--not conference--report. I emphasize ``conspiracy,'' Mr. President. The distinguished Senator from West Virginia says when you work with him, it is very close and everything else. Of course, he did not thank the Senator from South Carolina because we never got close because we never conferred and we never were told about a meeting. We could not see the draft. We heard first about this so-called conference, or conspiracy, report, with Richard Threlkeld on CBS at 7:20 last Thursday evening on the evening news, when he said it was coming up. I had yet to get a copy, even though I am a member of the conference, struggling around on Friday to try to find out what we were going to have. The story down in the local press, the way they politically work it, was that the Senator from South Carolina was going to filibuster. We had not had a chance to debate. We had not had a chance to debate. But the point of the matter is that, as the Senator from West Virginia talks about small business, small business--look at the chart. That is not small business. I think he ought to talk more closely with the distinguished Senator from Washington, whom he has been working with, because they are not quite in step. These heart pacemakers at $3,000, motorized wheelchairs, hotel bills, tonsillectomies, maternity stays, and all--maybe somebody is selling a baseball. We will let that one go by--18 cents. I hope we are not finding a Federal need up here, with all the States rights atmosphere, to all of a sudden pass a Federal law on account of 18 cents on the cost of a baseball. We go through, and it is really sad, because, going right to the chart, we have never seen that before. I guess that is the option of those who do not have a case, to try to do it by sheer surprise. They came in first years ago--I will never forget it--and said there was a litigation explosion. You do not hear them arguing about the litigation explosion anymore. They said there was an insurance crisis. We have here in the record that insurance companies are making billions and billions of dollars, so there is not that. Their reserves are up to an all-time high. They are doing great. So the insurance company is doing well, so you do not have that. Then they had the matter of uniformity. Mr. President, they were going to get all the States together and have uniformity, but it is quite obvious that the many splendored thing, the test tube of federalism at the State level, clashed with that uniformity. And they created specific exemptions for those States who had more stringent requirements of an injured party. Those State laws could hold. Those who had less stringent laws would have to come under the stringent restrictions of this particular measure. So on the face of it, it showed absolutely no uniformity. So they gave up on uniformity, in a fashion. Then they went to the matter of global competition. That is a sort of mystique around this Congress. We in Washington have discovered global competition. The matter of losing your job is psychological--the ``anxiety society'' they write about. ``Downsizing.'' It is all so polite. Heck, they have been fired, and they moved the jobs overseas. Who has moved them? It is not global; it is us. It is like the Spanish Civil War with the fifth column. Over half of what we are importing in here are American multinational generated. I used the figure that they had researched back in the late 1970's. It was 41 percent. I know over 50 percent of the imports are by 200 companies of the Fortune 500. They are the big, powerful people who can afford it. Small business cannot move overseas, but big business has moved overseas and continues, in a veritable hemorrhage. We explained it to everyone so they could understand the cost of manufacture. It was 30 percent of volume for the associates or workers, employees--you can save as much as 20 percent. It is a given, if you move to a low-wage country, a $500 million company can save $100 million if they just keep their executive office here, their sales force, but move their manufacture to a low-wage country. They can move offshore and get rich, or they can continue to stay and work their own people and go broke. That is the trade policy of this Congress. These companies are not greedy. If I ran the company, if you ran the company, we would do the same thing. Competition has moved. So are we going to sit around here and wonder--what? That Congress is running around in a circle about term limits and all these other little funny things they can think of, including product liability that the States have long handled. The distinguished Senator from Rhode Island got up and said ``15 years, 15 years'' the Congress has considered this issue. But the State of Rhode Island has responded. That is the mystery to me, that the proponents come around and act, all of a sudden, like they have discovered these things. Assume everything is true on that chart next to the Senator of Washington. What has the legislature of the State of Washington done about it? They have acted. The State of Georgia has acted. The State of South Carolina had product liability reform back in 1988. It was fully debated. But all of a sudden, we in Congress discover things. Why? Because we take a poll. None of these pollsters has ever served in public office, but they get the hot-button items, six or seven of them--and you have Victor Schwartz, that is a good one--saying how they went after the lawyers. They go after the doctors. Everybody is against the doctors, until they need one. Everybody is against the lawyers, until they need one. That is a given in society. But you do not just pass Federal laws to vitiate the laws of the 50 States on a statute of repose. Take the referendum they had in the State of Arizona. The proponents of this measure say, ``Forget about your referendum.'' They want to get back to the people, but ``we are going to tell you from Washington what to do, State of Arizona, regardless of your referendum.'' So what is going on up here? Now they come with the shunt. We are used to trying cases. You are limited to the record and the proof that you have, but this crowd just makes it up at the last minute. They have gone back to the products that have been kept off the market, and the shunt. I had not heard about the shunt, so we called up the Food and Drug Administration and they said there is no problem. Yes, Dow has been cited by our distinguished colleagues from Connecticut and Washington as going broke. It ought to go broke. They will never make--and a lot of other companies will never make--those implants like that again and try to sell them like hot cakes. Yes, sirree, that is what happens in our society, and we repair that kind of nonsense that goes on. Innocent women going in and thinking they are getting a health cure and instead they are ending their lives. So Dow does not sell them anymore, but Applied Silicon sells silicon, Neusal sells silicon. And we get another list of those--that little bit of material that goes into the shunt that takes the water off the brain. The inference of the Senators here trying to use that argument is that children and individuals are going to die unless we pass product liability at the Federal level. Come on. Take that chart next to the Senator from Washington. If a pacemaker costs $3,000, that has far more intricate materials than a shunt. They would take pacemakers off the market if you followed the logic of their argument. You could not afford $3,000 for that. I question that figure, to tell you the truth. I wish I had a chance to try it. My mother passed on just a few years ago, dying at 95 years of age, but she had four pacemakers and we never paid that. Maybe it is cheaper in Georgia and South Carolina than up here in this land--$18,000. But let us assume the truth. If the truth is there, then pacemakers have to get off the market, using the logic of the argument about the shunt and a little bit of silicon material that goes into it. Come on. It is available. It is a false argument. We are going to have to have a legislative congressional committee appointed on ski lifts, because it is only $2. It is way more dangerous than $2. I have been on them. The Presiding Officer has been on them. Get on one of those things and find out they are only spending $2 for safety. We have to get that up. That is the real Federal problem. Their little charts. They had the coffee chart yesterday. They took down the coffee chart. At least they have some shame. We proved that punitive damages award had been cut. The judges in New Mexico have sense, but the coffee case had no sense. When the proponents finally found that out, they took the chart down. What do they do here? Assuming all of that, as I say, is true, they act like the States have never acted before. I wanted to emphasize, too, coming in with this thing. Now let me read you this particular ad by the American pharmaceutical research companies, which appeared on the Federal page of the Washington Post on March 27, 1995. Here is what the American pharmaceutical group of manufacturers advertise in this ad: Drug companies target major diseases with record R&D investment. Pharmaceutical companies will spend nearly $15 billion on drug research and development in 1995. New medicines in development for leading diseases include 86 for heart disease and stroke, 124 for cancer, 107 for AIDS and AIDS-related diseases, 19 for Alzheimer's, 46 for mental diseases, and 79 for infectious diseases. In this ad the pharmaceutical companies include a bar graph showing their steady increase in R&D investment since 1977. They spent $1.3 billion in 1977, $2 billion in 1980, $3.2 billion in 1983, $4.7 billion in 1986, $7.3 billion in 1989, $11.5 billion in 1992, and an estimated $14.9 billion in 1995. Maybe they will go out and research a new kind of silicon--they spent almost $15 billion on overall research in 1995. But if you listen to the Senator from Connecticut and the Senator from Washington, you would think you cannot get the drugs on account of product liability; the drug companies are all going out of business. In fact, the foreign drug companies are all coming from Europe over here like gangbusters and investing. I will have a list before we end this debate this morning of the pharmaceutical companies joining in and they are not complaining. They are coming from Switzerland to South Carolina and Hoffmann-La Roche is not complaining about product liability. Wellcome is coming in with Glaxo in North Carolina. They are not complaining about product liability. We have product liability laws in our States. What they do in this measure, Mr. President, if you read it, goes way too far. We see this the more we now have a chance to look at it and wonder why. For example, I wondered why MADD came out against this bill, and then when I read that provision about punitive damages and substances--let us have all the drunk drivers not worry about punitive damages, do not worry about punishment, go ahead, drive drunk. Here we have the finest movement under MADD at the Federal and the State level. But this crowd now wants to write a bill so zealous about punitive damages and getting rid of it--at least one Senator said he did not even believe in punitive damages--that I can tell you now that they said tell the drunk drivers to go ahead, do not worry about punishment, drive. Tell the trial judge that you are obligated under the common law to charge the jury with the law, but keep it a secret. The Senator from West Virginia said we do not have a cap. I guess that is the part he is reading in the bill, because as far as the jury knows, there is no cap. Why? Because that is the law under the common law, but they have a provision in here where the judge does not tell the jury about the law. Now come on, what kind of laws are we passing here? Tell the drunk drivers, ``Go ahead, drive drunk.'' Tell the judge who has the responsibility to stay out of the facts of the case, to, by gosh, keep the law secret and then come around and have a new hearing on the facts in violation of the Constitution. The Cessna crowd, tell them now with the statute of repose, ``Don't worry about it, as long as the part would last for 15 years.'' Most of the planes I have been flying in are more than that. When you fly around in a State in small planes, you will find they are more than 15 years old. But tell Cessna that they can go like gangbusters, do not worry about the parts. There, shoot the Maytag man. Put him out of business. He does not have to stand there and say, ``My refrigerator is not going to catch fire. It is 30 years old, and they still haven't called me to repair it.'' Shoot the Maytag man. Blow up the furnaces. I went through a textile plant just the other day. It is 100 years old, but the machinery is brand new. They are competitive. When I first started, the shunts, as they call them, in the weaving machines used to be about 200; then they got to 400, then 1,500. The Japanese made machines up above that, I do not know how many thousands. They have the newest machinery. Yes, somebody in the plant may have been hurt. But now, hereafter, when you have to put all that investment in there, do not worry about the cost of the safety of the worker after the machine is 15 years old. I think they will close down the textile show we have in Greenville for new machinery because we are going to pass the law that after 15 years you can forget about how safe a machine is. There is no more product liability. They will take the hindmost. Just get hurt. Do not worry about it. Let society take care of the injuries and everything else because the national Congress, in the face of the State laws and provisions that are working extremely well as of now, decided exactly what to do. The utilities, oh, heavens, we had a good half-hour show on yesterday about the utilities. The utilities, now they did not want to write strict liability, so they wrote a double negative in the particular provision. Of course, the distinguished Senator had a difficult time trying to answer the questions because you could tell the lawyers downtown wrote this thing, not the staff. If the staff had written it, you would have seen somebody getting cussed out for writing that kind of thing. But the lawyers downtown were writing that thing up. They did not want to mention what they really meant. That is, for the utilities, do not worry about the highest degree of care we require in Georgia, South Carolina and the States of America because now we have a provision in here to tell the utilities to go ahead, forget about the highest degree of care. Then, the corporate head was riding with his worker after work in the evening. They get into a wreck. A big trucking company runs the red light. The corporate head can get $16 million--no, excuse me, it says double economic damages. We had one corporate head making $16 million, so he could get a $32 million verdict. But the poor fellow sitting in the front seat with him has got a cap--the gentleman said it ``ain't no cap'' --but he gets $250,000. He is capped. That is how the workers and consumers got this. The proponents of the bill discriminate against the people they say they are trying to help. They cannot name an organization of workers, consumers or others who are not affluent that favors this nonsense. The proponents come around and discriminate against those of modest means--the senior citizens, women, children. Oh, on pain and suffering, well, they are compensated. They have to have another hurdle. We put in another hurdle for them regarding joint and several liability. Mr. President, they come right down to the wire. I was watching this morning when the distinguished majority leader was on TV. He was talking about guns and the second amendment. Let me read two other amendments. In suits at common law [amendment VII], where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of common law. They absolutely mandate it be reexamined by the trial judge. That is in violation of amendment VII. Then amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to States respectively, or to the people. The distinguished majority leader always comes and says, ``Look, I have got here in my pocket'' the 10th amendment--some carry around the contract. The distinguished senior Senator from West Virginia carries around the Constitution. The distinguished majority leader carries around the 10th amendment, until this. When it comes to Medicaid, let the States handle it. When it comes to education, abolish the Department; that is a function of the States. When it comes to welfare, the Governors come in and say, let the States handle it. When it comes, by cracky, to crime, we have had a 2-year intramural around here trying to make sure that we get back to a program that we know did not work. President Nixon put in LEAA, block grants, to the States. The next thing you know, they had a tank down in Hampton, VA, to protect the courthouse. I do not know what was going to attack the courthouse in Hampton. They had the Governor of Indiana buying a plane, a Beechcraft, so his wife could go and buy her clothes in New York. They were buying planes and buying tanks and everything else. Trying to get the money down to the officer on the beat was like delivering letters by way of a rabbit; you could not get it there. At the time the city, the council, got it, the State, whatever, a politician got his hands on it. It was all for law enforcement, but law enforcement never saw it. But they say, ``Oh, no, we've got to have block grants.'' After the experience where we had to abolish the LEAA, they come with this one on account of the political poll. Lawyers. They have two giants, they say, the consumers and the trial lawyers, consumers and trial lawyers. The Senator from California emphasized what needs to be emphasized, and that is that we are looking out for individuals and individual injuries. It is not easy to try these injury cases. As we all know, less than 4 percent of all civil cases are product liability, less than 1 percent get to the courts, and product liability accounts for less than 1 percent of the cost of any of these products. They can keep on putting up charts, but the Conference Board refuted that. They said less than 1 percent of the cost of any of their articles were attributable to product liability. So what did we do? What did we do? We pass a totally unconstitutional measure. But more than anything else, Mr. President, the word ``greed'' has been used around here. I could not, in conscience, come and say, now, let us apply this all to injured individuals but not to injured businesses. Oh, no. No, no. I see where United Airlines wants to sue that manufacturer of the baggage handler. It got loose up in Denver, that machine. We had one of those machines, Mr. President, when I was in college. It had the laundry where you sent your clothes over there, and it had a machine that ripped the buttons off your shirt and shot them through your socks. I know that machine now is up at the Denver airport. It tears up the package, rips into the bags, and skirts it into the gears, stopping everything. So now, Mr. President, we have the business that can go ahead and get its way on punitive damages--do not worry about any $250,000, keeping it a secret, and then tell the trial judge later to start on his own factual findings and everything else like that in violation of the Constitution. Do not worry about any of that. Sue, like Pennzoil did Texaco--get a $10 billion verdict, $10.2 billion. That is more than all the product liability verdicts for injured matters in the last 20 years put together--$10.2 billion. Add them up. One business. The overwhelming majority of product liability is businesses suing businesses. They believe when they get a bad product misrepresented, they ought to have a cause of action. But they have done everything in the world to put hurdles in this thing, unconstitutional provisions, separating the injured parties, separating the businesses out, making sure that the corporate heads and those of affluence get big economic damages. They can get big verdicts; not women, not children, not senior citizens who have retired. They have all of a sudden become second class citizens. That is the bill. It is a shame. I yield the floor.

Mr. HOLLINGS. I thank the distinguished Chair. I want to reserve time for the distinguished minority leader, the Senator from South Dakota, who just notified us he would like a little time here. Mr. President, I rise to urge my colleagues to reject this legislation. The only thing that stands in the way of an act of Congress overturning 200 years of State law and placing severe restrictions on the civil rights of American citizens is the vote on this conference report. Some try to simplify this issue as a debate between trial lawyers and manufacturers. But this issue is larger than that. This matter goes to the heart of our Nation's constitutional federalism. I am convinced that to the extent Congress can selectively preempt State law, override State constitutions, overturn State legislative decisions, and dictate to State judges and juries the standards they must follow on matters that have nothing to do with Federal constitutional rights, then States essentially have lost their sovereignty. Maintaining an independent civil justice system is the essence of a free state. This freedom, however, would be seriously eroded by this bill. i. state sovereignty/dual federalism The stated purpose of this bill is to erect barriers regarding the use of the civil justice system for redress of injuries caused by dangerous products. However, I would remind my colleagues that, unlike the judicial systems of other countries, the American judicial system is rooted in democratic principles of individual redress, the right to a jury trial, and reliance on the people to resolve disputes. These were principles established by the Founding Fathers when they adopted the 7th and 10th amendments to the Constitution. Surely, issues such as whether to limit access to courts, limit redress remedies, or penalize citizens for merely bringing suits were considered by the Founding Fathers, as well as the judges and State officials that have administered our system of justice for over 200 years. But they decided against such measures, and opted instead to maintain a system that features free access to the courts, common law, and giving the people the ultimate authority to resolve conflicts. The supporters of this bill, however, are seeking to overturn this longstanding American history and judicial precedent. They would prefer to ram through this sweeping and unprecedented legislation. I am, indeed, confounded that the Senate is even considering this legislation. At the beginning of this Congress, Member after Member came to the floor during consideration of S. 1, the unfunded mandates bill, to declare that this would be the Congress of States' rights, where Government would be returned to the people. The Jeffersonian democracy of government was revived. If we've heard it once, we've heard it a million times, that State and local governments know best how to protect the health and safety of their citizens, and that they do not need Congress telling them what to do. How many times did we hear that the one clear message sent by the voters in November 1994 was that the people wanted to get the Federal Government off their backs and out of their pockets? The 10th amendment, lost in the shuffle for many years, was given new light. The majority leader himself, in his opening address to the new Congress, proclaimed: . . . America has reconnected us with the hopes for a nation made free by demanding a Government that is more limited. Reigning in our government will be my mandate, and I hope it will be the purpose and principal accomplishment of the 104th Congress. . . . We do not have all the answers in Washington, D.C. Why should we tell Idaho, or the State of South Dakota, or the State of Oregon, or any other State that we are going to pass this Federal law and that we are going to require you to do certain things . . . The majority leader went on to say: . . . Federalism is an idea that power should be kept close to the people. It is an idea on which our nation was founded. But there are some in Washington--perhaps fewer this year than last--who believe that our states can't be trusted with power. . . . If I have one goal for the 104th Congress, it is this: That we will dust off the 10th Amendment and restore it to its rightful place. If we are going to respect the 10th amendment, Mr. President, then we must be consistent. But consistency is not something in which this Congress seems to be interested. The same Congress that has championed States rights regarding welfare is now advancing the power of the Federal Government over State civil courts. It appears that some believe the States have all the answers when it comes to welfare and education, but for some reason are incapable of running their own courts. To the extent any reforms are needed, the States already have instituted such measures. Since 1986, over 40 States have enacted tort reform legislation. This includes my home State of South Carolina, which enacted a major tort reform measure in 1988. The States--through their work with members of the bar, the chamber of commerce, the insurance industry, and consumer groups--have addressed concerns about the tort system, and have crafted legislation they believe is in the best interest of their citizens. The proponents of this bill, however, would override the enormous and commendable efforts and time the States have devoted to this issue, and force their own brand of reform on the States. Ironically, during the 1994 elections, when many of those who now so vehemently champion States rights were elected, the people of Arizona considered a State-wide tort reform referendum that consisted of many of the initiatives in this conference agreement. By a 2-to-1 vote, the people of Arizona rejected the referendum. Now some Members would like to reward them by using their Federal power to force on the citizens of Arizona the initiatives they soundly rejected at the ballot box. II. Refutation of Claims Regarding Need of Legislation The conference report contains a number of ``findings'' regarding the need for this legislation. Most of the findings are repeats of the various claims that have been made over the last decade. Nevertheless, it is necessary again to set the record straight with the facts. Finding No. 1 states: Our nation is overly litigious, the civil justice system is overcrowded, sluggish, and excessively costly and the costs of lawsuits, both direct and indirect, are inflicting serious and unnecessary injury on the national economy. Rebuttal: This is the old litigation explosion claim. However, there has never been any evidence of a litigation explosion as the following data demonstrate: A 1991 Rand study found that only 2 percent of Americans injured by products ever file a lawsuit. A 1994 report by the National Center for State Courts found that product liability cases are less than 1 percent of all civil filings. A 1995 study by the National Center for State Courts found that, of the 2 percent of lawsuits that are filed, 90 percent are disposed of by nontrial, such as dismissals or settlements. In June 1994, the New York Times featured a front page story on how juries are growing tougher on plaintiffs. Citing the latest research by Jury Verdicts Research, Inc., the Times stated that plaintiffs' success rates in product liability cases have dropped from 59 to 41 percent between 1989 and 1994. A 1995 report by the National Center for State Courts shows that tort filings have declined 6 percent since 1991. Profs. James Henderson, a supporter of State product liability reform, and Theodore Eisenberg of Cornell University released a study in 1992, which showed that product liability filings had declined by 44 percent by 1991. They concluded that by ``most measures, product liability has returned to where it was at the beginning of the decade,'' beginning in the 1980's. business litigation Where is the real litigation explosion? It is in the corporate board rooms. According to professor Marc Galanter of the University of Wisconsin Law School, the real litigation explosion in recent years has involved businesses suing each other, not injured persons seeking redress of their rights. He found that business contract filings in Federal courts increased by 232 percent between 1960 and 1988, and by 1988 comprised the largest category of civil cases in the Federal courts. In August 1995, the National Law Journal released the findings of its study of judicial emergencies in Federal courts. The study found that 33 percent of the judicial emergencies involved business litigation. Between 1989 and 1994, of the 83 largest civil damage awards nationwide, 73 percent involved business suits. Between 1987 and 1994, just 76 of the top business verdicts alone accounted for more than $10 billion. They included: Litton Systems versus Honeywell, a patent infringement dispute--$1.2 billion; Rubicon Petroleum versus Amoco, a breach of contract dispute--$500 million, including $250 million in punitive damages; Amoco Chemical versus Certain Lloyds of London, a breach of contract dispute--$425 million, including $341 million in punitive damages; Avia Development versus American General Reality Investment, a breach of contract--$309 million, including $262 million in punitive damages. Of course, this does not include the greatest verdict of them all--the $10.5 billion awarded in 1985 in the Pennzoil versus Texaco case. Notwithstanding the excessiveness of business suites, however, the bill specifically exempts business litigation from the legislation. ii. competitiveness Finding No. 2 of the conference report states: Excessive, unpredictable, and often arbitrary damage awards and unfair allocations of liability have a direct and undesirable effect on interstate commerce by increasing the cost and decreasing the availability of goods and services. Rebuttal: To refute these unfounded claims about competitiveness, I simply cite the comments of Mr. Jerry Jasinowski, president of the National Association of Manufacturers [NAM], that appeared in the Washington Post editorial section on Sunday, March 17, 1996. Mr. Jasinowski severely decried those who have criticized American business competitiveness. According to Mr. Jasinowski: the American industrial renaissance over the last 4 years has restored the United States ``to the top spot among the world's economies.'' While some are ``busy berating our capitalist system, the U.S. economy has become the envy of the industrialized world.'' ``The American economy has quietly grown richer--gaining 8 million new jobs since 1992 and putting the unemployment rate at an historically low 5.5 percent.'' ``In the past 25 years''--during the midst of the so-called product liability crisis--``U.S. employment has increased 59 percent and we have created more than 5 times as many net jobs as all the countries of Europe combined.'' other studies on competitiveness Mr. Jasinowski's editorial affirms other studies which have found no evidence relating product liability to U.S. competitiveness. A 1987 Conference Board survey of risk managers of 232 corportions shows that product liability costs for most businesses are 1 percent or less of the final price of products, and have very little impact on larger economic issues such as market share or jobs. The Rand Corporation found that less than 1 percent of U.S. manufacturers are ever named in a product liability lawsuit, and that ``available evidence does not support the notion that product liability is crippling American business.'' In 1991, the GAO released a study of the effects of product liability on competitiveness, and stated that it could find ``no acceptable methodology for relating product liability to competitiveness.'' findings on insurance costs Finding No. 7 states: The unpredictability of damage awards is inequitable to both plaintiffs and defendants and has added considerably to the high cost of liability insurance, making it difficult for producers, consumers, volunteers, and nonprofit organizations to protect themselves from liability with any degree of confidence and at a reasonable cost. Rebuttal: The claim that there was an insurance crisis was one of the first justifications put forth by supporters of the legislation in the 1980's. However, there is ample evidence that there never was, and is not currently, a product liability insurance crisis. A study released in March 1995 by Bob Hunter of the Consumer Federation of America, who was formerly the Texas Insurance Commissioner, shows that product liability insurance costs for U.S. businesses amount to no more than 26 cents for every $100 of total costs. In January 1995, the National Association of Insurance Commissioners reported that between 1989 and 1993 product liability insurance premiums declined by 26 percent. According to the Insurance Information Institute, insurance companies' surplus, assets minus liabilities, rose from $29 billion to over $230 billion between 1977 and 1995. Surplus is the money available after all losses and bills have been paid. These figures show that, to the extent there was an insurance downfall, it sure was not felt by the insurance industry. Additionally, according to the testimony of the American Insurance Association [AIA], the legislation will have no effect on insurance rates anyway. uniformity Finding No. 10 states: The rules of law governing product liability actions, damage awards, and allocations of liability have evolved inconsistently within and among the states, resulting in a complex, contradictory, and uncertain regime that is inequitable to both plaintiffs and defendants and unduly burdens interstate commerce. Rebuttal: This finding is part of the proponents' claim regarding uniformity. However, contrary to the proponents' claims, the bill does not, and is not intended to, create uniformity. State law is preempted in this bill only to the extent it favors defendant corporations. For example, with respect to punitive damages, the legislation would not disturb the law in the State of Washington since that State prohibits punitive damages, but would preempt the law in South Carolina, which permits punitive awards. The Chief Justices of the States have indicated that the legislation is likely to create considerable confusion, and lead to more litigation, as a result of the varying interpretations and applications of its provisions by different State courts. The bill imposes its own set of rules on State courts without imposing the same rules directly on the Federal courts. Because of the absence of a Federal cause of action, Federal courts will hear cases involving the legislation only if there is diversity of citizenship or location of the parties.

Mr. HOLLINGS

Mr. HOLLINGS. I yield 15 minutes to the distinguished Senator from Iowa.

Mr. HOLLINGS. I reserve the remainder of my time.

Mr. HOLLINGS. Will the Senator yield?

Mr. HOLLINGS. I will yield on my own time just a minute. I say to Senator Dorgan, he is right on target. In the zeal to avoid using what is intended--namely, the expression of strict liability and nuisance-- for utilities, as put in the juxtaposed position in this language, where you have two exceptions, almost like a mathematical case of two negatives making a positive. Yes, positively, utilities are covered, wherein they have strict liability on nuisance tests. I have here in my hand a majority of States that do have it. I ask unanimous consent to have this printed in the Record.

Mr. HOLLINGS. This particular article refutes the statement by the Senator from Connecticut. Big business is doing fine. They are not worried about new products. They are competitive. They are making the biggest profits. It goes right back to the official hearings we had with the conference report, risk managers. Over 432 risks managers sat there and said it was less than 1 percent of the cost of the product. So we can hear these statements that this is the No. 1 thing they are worried about, and everything of that kind and holding things back, but under the Cornell study, product liability cases are diminished by 44 percent in the last decade and, yes, industries are suing industries like Pennzoil suing Texaco for a $10 billion verdict. Those things occur. But this is not the No. 1 interest of business. The No. 1 interest of business, that I have been trying to defend in the Commerce Department and ask what they are interested in, they say they are interested in capital gains. ``We are not going to really spread our influence around. On the contrary, we are going to fight for capital gains and let the Commerce Department and the President take care of that.'' I yield 7 minutes to the distinguished Senator from Minnesota.

Mr. HOLLINGS. Mr. President, I ask unanimous consent to have printed in the Record a letter dated only yesterday from Mothers Against Drunk Driving in opposition to the bill.

Mr. HOLLINGS. Mr. President, I yield 10 minutes to the distinguished Senator from Hawaii.

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

Mr. HOLLINGS. I yield 7 minutes, 22 seconds to the distinguished Senator from California.

Mr. HOLLINGS. Mr. President, I read the law, and it is properly quoted by MADD. We doublechecked because we heard some rumors. So checking it out, we found that the MADD position in opposition to this legislation is the same as I included in the Record, you can read the exact language which says ``any several action brought, or any theory of harm caused by a product or product use''--period, end quote. So they know what they are talking about. Now to the confusion. You saw that 30-minute demonstration we had out here about strict liability and utilities. They wrote that in the double negative fashion because they did not want to say we are going to exempt strict liability. So they have done so by covering it in this bill. Right to the point, they tell the gas company to go ahead and get reckless and not worry about punitive damages for the simple reason that now, having been written that way, you have to have malice. I could cover a plethora of things. The solution is within the States. The Senator from Rhode Island was correct. We have been on it for 15 years. The State of Tennessee has acted. The State of South Carolina has acted. When we say it is a moderate, bipartisan bill, the opposition is moderate and bipartisan. There is bipartisan opposition because this goes totally against the grain. When I was sent up here some 29 years ago standing for States rights, here comes the crowd finally saying let us have education back to the States; Medicaid, let us have it back to the States; crime and block grants back to the States; welfare, the Governors say, come, give it to us, back to the States. The States are doing the job. The majority leader runs around with a tenth amendment in his pocket and pulls it out, and says we have government going back to the States. But the business crowd downtown wrote this sorry measure. It is not bipartisan with respect to the conference. We were never asked into that conference; never considered. That had not happened. That had not happened. I found out about this on CBS when they talked about the silly case of women going into the men's room.

Mr. HOLLINGS. Mr. President, I yield 10 minutes to the distinguished Senator from Michigan.

Mr. HOLLINGS. Mr. President, I am sure the distinguished Senator from Connecticut would also include me in his thanks but, of course, not being in the conference and not making any contribution I am not due any thanks at all. We just could not participate. I was rather interested to hear for the first time that the House gave in on all of these things because we never conferred on any House giving into anything. Just highlighting, of course, the nature of this endeavor, the fact is this Senator spoke and shepherded over a 3-year period a communications bill that passed this Senate on a bipartisan vote of 91 Senators. So I know how to work in a bipartisan fashion. But this thing is a hijacking, if I have ever participated in one. I yield 10 minutes to the distinguished Senator from Louisiana.

Mr. HOLLINGS. Mr. President, I yield 25 minutes to the distinguished Senator from Alabama.

Mr. HOLLINGS. I yield so much time as will be necessary. I am thoroughly bemused by my friend from the State of Washington starting off on aircraft with the very categorical statement that no one ever got on a plane saying that Cessna's planes were unsafe or the manufacturer was negligent. If they thought so, they were not going to get on the plane. They would not have to say it. Come on. Who are we kidding? By coincidence, just last Thursday, I saw it reported that a Cessna plane down in Florida took off with the Blackburn family from my hometown and it had barely gotten off, I observed, to fly over the waters, and it turned and went down in about 5 to 10 feet of water at the most. We saw the pictures of them trying to save the family. The husband and wife and two of the children were lost, the pilot was lost, and the little 11-year-old hangs on as we talk. Being an observer, I wondered what had happened. Stories have come again and again that the pilot was most experienced. Someone saw the engine streaming smoke. I cannot tell. You cannot. No one can at the moment. But it appears that it is a product liability situation. There is not any question in my mind. It occurs again and again. It brings me right to the point, Mr. President, of the shabby nature of this whole proceeding. I say that because we passed this bill in the Senate last May and finally agreed to a conference on the House side in November. They had one short, brief meeting. Under the rules in the House, you have to at least have a meeting. But thereafter there was nothing. It really bemuses me when the distinguished Senator says we are now to consider the conference report. We now consider the conspiracy report. It is not a conference. I never conferred. I was appointed by the distinguished Presiding Officer of the Senate as a member of the conference but was never told, never consented, never conferred, and not any on our side of the aisle or our staff were invited other than the distinguished Senator from West Virginia. Here is what is happening in the Congress of the United States. I am going on my 30th year now, and this is the first time I have ever seen this happen this year and last year where they fixed the jury; namely, they get together on what they want and, since they are the majority party, can pick up a vote or two. They then go and bicycle around: Now, Senator, will this please you if we change this little word? And you have a ``gerrybuilt'' bill in front of you that never would pass muster in a conference. Having fixed the vote, they went ahead and we heard last week that something was happening. In fact, I could tell it. On Thursday night Richard Threlkeld on CBS came in at 7:20 and he said the U.S. Congress is about to consider these dastardly, ridiculous lawsuits, and he went on to talk about a man in the men's restroom where women came in and he was insulted. The proponents talk about the coffee case from McDonald's, and they have these anecdotal, nonsensical matters that never tell the complete facts. And the truth of the matter is, since we mention the coffee case, I have the finding right here that confirms that the jury did award $3 million. But the judge reduced that. After all, judges do have sense. Jurors do have sense. All wisdom is not vested in the Senate. And they reduced that amount to $640,000 and the lady who was hospitalized with third-degree burns, requiring skin grafts, settled for even a lesser amount. But you hear on CBS national news, ``All you have to do is spill coffee and run up and get your money.'' Come on. Regarding all the planes, now they are back in business and everything. We always allocate to ourselves that everything begins and ends right here with the wisdom of the U.S. Senate. They want to tell how we passed a good budget bill that has corporate America going like gangbusters, the stock market through the roof, and, yes, people are buying planes, but they do not want to talk about the budget we passed that none of them ever voted for. Categorically, one Senator on the other side of the aisle said, just 2 years ago, that if we pass this budget they would be hunting us down like dogs in the street and shooting us, the economy would collapse, there would be a depression; everything would go wrong. Here now the stock market sets record levels, corporate America is as affluent as it has ever been, and they are buying airplanes. And my colleagues want to attribute that to themselves passing a bill? Come on. The next thing the proponents say is the present system costs too much. Mr. President, it is like a college education. A college education is most expensive. The only thing more expensive is not having a college education. If product liability costs, which it does very little, the worst would be to not have product liability, because injuries occur. We have a safe America. I wish I had time to go down through a list of these injuries. When I say the conference was ``a shabby procedure,'' I mean that last week I was struggling on Friday to try to find the bill. The bill's supporters were changing words down to the last minute. They filed a cloture motion at the time they filed the bill, which means they have the votes for cloture, and the jury is fixed before they hear any arguments. And thereby they can come in with the fixed jury and say, bam, bam, they have cloture--today I was limited to an hour postcloture. They could have called for the cloture vote in the next 20 minutes, since we came in at 10 o'clock. So you are under the gun when they offer you only a few hours of debate. You are not allowed to talk sense. Oh, boy, we could spend an afternoon pointing out the good that product liability has done. We do not get blown up by that Pinto gas tank. Cars all have antilock brakes. That elevator is checked. The steps are marked. Little children do not burn up in flammable pajamas. The women of America are not threatened with Dalkon shields. And football helmets are much safer--yes, we have had some wonderful decisions against their unsafe nature. When you and I played football, Mr. President, we ran into the line and there was just a piece of leather and what you would get, many, many a time, was traumatic cataracts. That does not occur now in high school and college ball, because of the better construction of football helmets--and product liability. We could go all afternoon and try to explain the wisdom of a tort system that is working at the State level. But the proponents do not give you time to do that. They come up here with the anecdotal stuff, that it is costing too much. Let me cite some reports about what it costs, because the Rand Corp. and the Conference Board have studied these matters. The Rand Corp. said that less than 1 percent of product liability injuries ever result in a lawsuit. Over 50 percent of civil cases are business suits, incidentally. Business is suing business, like gangbusters. Pennzoil against Texaco, a $10.2 billion verdict, that one business against business result is more than all the product liability for personal injuries in the last 20 years, that one case. And they are talking about, ``It costs too much.'' But what did the Conference Board do? They interviewed 232 risk managers. We have it in the Record. The Conference Board interviewed 232 risk managers, of the blue chip, Fortune 500 companies, who said that less than 1 percent of the cost of the product was due to product liability. It was not a problem. The proponents knew this. They come in here because they have Victor Schwartz and there is still a movement against lawyers. This is pollster driven. We all come here per political poll. Lawyers get rid of the lawyers. Ah, Mr. President, ``the trial lawyers have paid them off.'' Yes. The proponents had a news conference even before the bill was called up. You see they have radio, TV shows, news conferences, before we even call the bill, and before those who oppose it have even a chance to say so. That is why I say it is a shabby operation. But I will quote, because you have to get the news clips about how two of the Senators: . . . who will appear on the ballot with Clinton in West Virginia this fall responded angrily to Clinton's weekend threat to veto the House-Senate compromise of a bill that limits damage awards in product liability cases. The two gave an ``unusually harsh accusation'' to the President, saying Clinton was ``rewarding'' the trial lawyers who are ``bankrolling his reelection bid.'' That is from the Baltimore Sun. Come on, it takes a bankroller to find a bankroller. Let us go to the individual Senators, namely this Senator. I hope I have gotten some contributions from the trial lawyers. I have been one. But I have been a business lawyer, too. I have handled antitrust cases. I have sued a corporation before the Securities and Exchange Commission. When you come from a relatively small town like I grew up in, you represent all sides. And look at the record. I have been elected six times to the U.S. Senate. I will guarantee I have gotten more business contributions than trial lawyer contributions. So let us dispel this notion about what you are doing for the trial lawyers. We are thinking of the Constitution in this case. That is one of the big reasons the American Bar Association opposes it. We are thinking of that seventh amendment. We are thinking of what the bill's supporters said in the original instance about simplicity, transactional costs, but how this particular measure now increases the transaction cost and makes complex the so-called simplicity, if there ever one was. More than anything else, let us go to the original doctrine of the Contract With America crowd, from the 1994 election. Oh, they won on account of the contract. Did you not get the message of the contract? They have a bunch of children Senators running around, hollering, ``The contract,'' and ``We gave our pledge.'' This Senator was elected, too, on a pledge: To stop a lot of this nonsense if he possibly could. None other than the distinguished majority leader said, at the beginning of this particular Congress: America has reconnected us with the hopes for a nation made free by demanding a Government that is more limited. Reining in our government will be my mandate, and I hope it will be the purpose and principal accomplishment of the 104th Congress. Senator Robert Dole, now the Republican nominee for the Presidency here in November. I further quote Senator Dole: . . . We do not have all the answers in Washington, DC. Why should we tell Idaho, or the State of South Dakota, or the State of Oregon, or any other State that we are going to pass this Federal law and that we are going to require you to do certain things . . .? The majority leader then went on to say. . . . Federalism is an idea that power should be kept close to the people. It is an idea on which our nation was founded. But there are some in Washington--perhaps fewer this year than last--who believe that our States can't be trusted with power. . . . If I have one goal for the 104th Congress, it is this: that we will dust off the 10th amendment and restore it to its rightful place. Those powers not reserved under the Constitution are hereby delegated to the several States. Here we go with the devolution group. We started off with unfunded mandates. They said we had to give everything back to the States. Every measure that has come up here says, ``Send welfare back, send the health problem back''--of course, it is all political pap. It is trying to get rid of responsibility. They do not want to pay the bill. We have been spending $250 billion more than we have taken in each year and both budgets--the President's and the Republican budget--will call again for another $250 billion in expenditures with less than $250 billion in revenues. So they do not want to speak the truth. They want to get boiled up into term limits, and we have gotten the lawyers now because this says ``kill all the lawyers,'' as the butcher said in Henry VI. People do not realize how he said it. He said anarchy cannot predominate unless we get rid of all the lawyers. The lawyers, Mr. President, have been the bulwark of this great democracy. Every President from Washington up to Lincoln was a lawyer. They are the ones who founded this country, gave thought and wisdom and direction and growth. I hearken the words of Patrick Henry: ``I know not what course others may take, but as for me, give me liberty or give me death.'' A Virginia lawyer. Another Virginia lawyer, a 34-year-old lawyer sitting there and penning, ``All men are created equal.'' Thomas Jefferson. James Madison foresaw our problem right here this minute 200-some years ago. He said, ``But what is Government save the best of reflection on human nature. If man were angels, there would be no need for Government, and if angels governed man, there would be no need for controls over the Government. The task in formulating a government to be administered by a man over man is first frame that government with the power to control the governed and thereupon oblige that same government to control itself.'' James Madison, the lawyer. This Government is out of fiscal control, and no one wants to talk about it. I wish you would pick up the business section this morning. They do not talk about that. They said, ``Well, the idea of deficits now has gone sort of out of style.'' Why? I can tell the Washington Post why. For all last year the Republicans had a fraudulent budget, 7 years to balance. It was a fraud. It did not balance. Finally, President Clinton said, ``Well, monkey see monkey do. I will put out a fraudulent budget, too.'' So when he put one out, they said, ``Ah-ha, fraud.'' He said, ``No, that's what you have,'' and that is why they stopped talking, because neither side can possibly balance the budget without an increase in taxes, and both sides are trying to buy--trying to buy-- the vote in November with a tax cut. Sheer nonsense, but that is what is going on. That is why they do not talk about deficits anymore, because you cannot realistically talk about it and give a tax cut at the same time. So they are moving on to abortion, immigration, they pick up lawyers--term limits--any kind of sidebar that is not a national problem to get by the election. It is all applesauce. It is all Presidential politics. We are spinning our wheels, and it is a shabby process to come and bring this without any debate, limited as we are to talk about a national need that every one of the States over the years has addressed--the distinguished Senator from Rhode Island got up on the floor and talked about the years we have been discussing this. He is right. We have been discussing it for years and years, and the reason it has not passed is because the States have long since taken care of the problem, whether the problem was the inability of finding insurance, whether it was trying to get uniformity, whether it was international competition--you can go down the list, like Sealtest ice cream, the flavor of the week, they had a different reason every time. Every time that the law professors looked at it, they came en masse and testified, ``For Heaven's sake, don't pass this measure.'' Every time the State legislators came, or the State attorneys general came, they said, ``Look, we're doing the job. It's a nonproblem.'' Every time the chief justices of the States--the States that they revere so much in devolution but that are totally repudiated here--the Association of State Chief Justices came and said, ``Don't pass this.'' The American Bar came and said, ``Don't pass this.'' I do not know who they represent other than themselves trying to get reelected on a pollster hot button. That is all it is. We can go down the list of those who oppose this measure still. The AFL-CIO, do you not think they represent working Americans? Find me a working American who says this is a good bill. The Coalition for Consumer Rights; the Consumer Federation of America; the National Conference of State Legislatures; Public Citizen--I can go right down the list. Mr. President, I challenge the supporters of this bill to say what group, other than the Business Advisory Council and Victor Schwartz, wants it. I represent people in business, and I can tell you about the cost of it. So the Senator mentions the cost. Then he gets into the amount of lawyers. Since we are talking about the lawyers, I should have completed my thought. Again, it was a lawyer, Abraham Lincoln, who made the Emancipation Proclamation. Franklin Roosevelt in the darkest days of the Depression, a lawyer, said: ``All we have to fear is fear itself.'' I was admitted to practice before the U.S. Supreme Court in December 1952, Mr. President. We had then the school segregation cases. Brown versus Board of Education of Topeka--actually the lead case was Briggs versus Chaney. We had John W. Davis, the former Solicitor General, argue on behalf of the State. Thurgood Marshall, the lead attorney arguing not the Kansas case but the Briggs versus Chaney case. I can see Justice Marshall, a lawyer, standing there now talking about freedom and bringing this Congress and the people in this land to equal justice under law. ``Get rid of the lawyers,'' they say. I can go to Ralph Nader, I can go to Morris Dees, and all the others. I can go down and then I can come to the 60,000--did you hear the figure?--60,000 registered to practice downtown in the District, all on billable hours, hardly any in a court, all fixing us politicians, $200 an hour, $400 an hour. I have talked to some with ethics charges, and they have gone broke. They have not paid their bills yet. They got rid of the ethics charge, but to go back to all the records, they had to pay lawyers $400 an hour to come and just look over the records in the office. The billable hour crowd is behind this bill. That is one group. They do not want to mention it. Lawyers, yeah, they have the Persian rugs, mahogany desks, and the drapes. They never worked. The trial lawyers have to convince 12 jurors in their community, all 12--all 12--and have to withstand judicial review, as the coffee case did where it was cut. They did not get paid anything. The presumption is, on the amount to the lawyers, that these injured parties without a lawyer would get the money. That is why they are having a product liability case, because they are denying payment. They are denying payment. But, yes, we had in the committee--I will read about who gets what, and that this is just a plaintiff's lawyer--people ought to know about defendants' lawyers and about the billable hours thing. It is wonderful. We are talking about the time it takes and the backlog. Who is interested in time and backlog? Then there is the insurance company lawyer out there on the 20th or 30th floor, and the Persian rugs. He could care less. He gets his money. If the insurer can put the claim off and never pay it, at least when they do pay it, it will be in inflated dollars. The insurance lawyers are the ones who are asking for continuances and motions and who call their secretary and tell her to put 52 interrogatories in. Then, they get the discovery going. All they do is just sit there and answer the phone and go out to the club and eat lunch and have their martinis and say how smart they are. And they get paid. Plaintiffs' lawyers, the defendants' lawyers. I read from the committee report: According to calculations derived from the survey conducted by the insurance services officer of the Institute for Civil Justice, for every dollar paid to claimants, insurance paid an average of an additional 42 cents in defense costs. While for every dollar awarded to a plaintiff, the plaintiff pays an average contingent fee of 33 cents out of that dollar. Thus, in cases in which plaintiffs prevail, out of each $1.42 in total litigation costs, including damages, about half of that goes to attorney's fees, with the defendant's attorneys on average paid better than the plaintiff's attorneys. Of course, defendant's attorneys are paid regardless of the outcome of the case, while the plaintiff's attorneys are paid only if they win their case; otherwise, they take a loss for the time and expenses they have incurred. Mr. President, coming to the Senate, I left a lot of money on the table. I can say that poor person now in the Boland case--this guy had broken down between Georgetown and Charleston. As he went back to get the spare tire out of the trunk, the bus rammed him, dead. The family did not have any money, whatever it was. I said, ``Well, I'll take it.'' We spent quite a bit of time and money, won the case, took the case on appeal, trying to chase down to Florida the particular defendants in that case, everything else of that kind. We just had to leave that. Plaintiff's attorneys understand that is the cost of doing business. Otherwise, how is poor America ever going to be represented? I take my hat off to trial lawyers. Heavens above, yes, if they make it, some are making in these class actions, I guess, healthy amounts. But the experience is otherwise. As we have heard in the hearings and everything else like that, the cost is not trial lawyers, the cost is because of the defense lawyer. The cost of the enactment of this particular so-called conference, what I call conspiracy, report, is that individual rights would be seriously, seriously inhibited. There is not any question about the matter of the studies that we have had. In 1991, the Rand Corp. showed that only 2 percent of product liability cases are ever filed. The majority of the 2 percent are business; 90 percent never get to court. I have already mentioned the Conference Board. The Rand study said that less than 1 percent of corporate America is ever named in a particular lawsuit. Of course, Cornell University's most updated study shows that in the decades of the 1980's, coming into the 1990's, there has been a decline of litigation. There used to be what they call, I forget now, but they had a panic that they just had a plethora of suits. Actually under the Cornell study the suits have declined 44 percent. The States have moved in. They have moved in a responsible fashion. And here we come--in the State of Arizona, for example, they had a referendum on this. This bill abolishes the public vote of the people of Arizona. If that is not senatorial arrogance, if that is not congressional arrogance, if that is not Washington Government at its worst-- everybody's campaigning on the stump, Republican and Democrat, that we are going to get rid of that kind of Washington Government--if that is not it, I do not know what is. I could go on, Mr. President, into the matter of the bill itself. The very interesting thing is that they are talking, oh, so reasonable, about how they are struggling and how it works and how they have balance. I hope they do not use that word ``balance'' because I heard that in the caucus yesterday. Balance, my Aunt Edith. This does not apply to the business of the majority of people bringing product liability cases. Oh, no. Hum-mm. No. It does not apply to coming back on punitive damages and having a separate hearing nor to joint and several liability. None of this balance talk is about pain and suffering, none of this at all-- Oh, look through this obstacle course they have here for the poor, injured party. Not an injured business, no. United Airlines is looking at suing the Dallas manufacturer, I take it, of the baggage handler out there in Denver. No. This bill will not apply to them. That is a corporation. No, siree. That military airplane that crashed--oh, boy, I think we have had 31 of those F-14's in a period of a few months or years. We put those planes on line 23 years ago. That last crash killed, I think, two or three people on the ground there in Nashville. No case under this bill. No case because they have been exempted. You have to read this thing. I am proud to stand here and tell the truth and expose this nonsense, this conspiracy, that has taken on, on the one hand, a political poll hot button issue, that is a nonproblem, and expose the movement that is in behind it and continues and continues because who is paid, when they talk about the trial lawyers and being bankrolled, who is paid and bankrolling this? So you have two classes of injured parties. If you are a business injured, do not worry. If you are instead an individual who struggles because you not only have to get the investigation cost, you have to get your medical cost, you have to get it all assumed by that rascally trial lawyer, and he is assuming the plat to be made, the diagrams, the photographs and everything else to bring the truth to the 12 men and women on the jury and suffer all the legal motions and everything else. The trial lawyers are bankrolling injured parties, for an average, I would say, of anywhere from 1\1/2\ to 2 years at least on these cases. If they do not prevail with all 12 or with the supreme court of the State on appeal, they are goners. They are goners. That has happened time and time again. But you have two classes. There the bill's supporters have been very, very careful to talk about fairness and trying so long. You have two classes of individual parties: the CEO and the fellow who is working in the plant. The CEO makes $5 million. Ask AT&T; I think the CEO got up to $16 million. If he comes in and he gets an injury, he can get twice times the economic damages. So, if he is out for a year, he can get $32 million in punitive damages. But if the same fellow in the car that is driving with the CEO--if the CEO will give him a ride--that fellow will only get $250,000 in punitive damages. Oh, boy, what a fair bill. It is so studied, so nice, so pleasant. We have been holding it up because trial lawyers have been bankrolling everybody, and everything else of that kind. I wish this crowd would sober up and read this thing. You have the poor women. You have two classes there. If you have the breadwinner, the man in the family, he can get all his economic damages and everything else, but she can be expecting a baby and lose that baby and never be able to produce a child again, but that is not economic damage, that is pain and suffering. So there is going to be a separate hearing there. Mr. President, later, if the time permits, I want to get to the uniformity and the global competition that they talk about, because with respect to, say, the State of Washington which does not have punitive damages, this law would not apply. To my State of South Carolina that does have punitive damages, this law shall apply. They call that uniformity. They call that uniformity. Interstate commerce is a many splendored thing and the lawyers are bolixing it up. As for global competition--I have foreign industries coming in like gangbusters. I have been in the game at least 35, nearly 40 years. This is why I challenged the distinguished Senator from North Carolina; I know his State; we compete together. We have never had the blue chip corporations that we have today--I have Firestone, several GE's, I have several DuPont, American industries. Right here in the last 2 or 3 months, we have BMW, we have roller bearings, Hoffmann-La Rouche, the most wonderful pharmaceutical firm that you have ever seen. Companies from everywhere--Hitachi, in the TV industry. I want to thank publicly the Washington Post for that Outlook article on Sunday. I have been trying to bring this trade issue to the U.S. Senate now--this is the 30th year, this so-called protectionism. President Ronald Reagan, under section 301, started moving in these cases and got voluntary restraint agreements. As a result of the voluntary restraint agreements in things like Sematech--protectionism, if you please--we are not only holding on to the old jobs but we are getting new jobs. I remember the Republican primary campaign in South Carolina, when the former Governor said, ``Free trade, free trade. Look at this, BMW taking Senator Dole through its new plant. It was there on account of free trade.'' It was there on account of protectionism. When we got voluntary restraints, that is how we got Honda, how we got Toyota, how we got BMW. Who is kidding whom? When the distinguished Senator from Alaska, Senator Stevens and I, put into the defense bill the Buy America provision on roller bearings, we got Koyo and INF up in York County. That is why they are there. Voluntary restraint agreements on steel, voluntary restraint agreements with respect to semiconductors, Sematech, Hitachi. You can go down the list, Mr. President. Trial lawyers, protectionism. Competition is what America is interested in at this particular moment, not the tort system being handled by the States, not term limits and all the other fanciful games played in political polls. They want America. They want this Congress to get competitive. There is nothing wrong with the industrial work of America. The industrial work of America is the most competitive. What is not competing is us up here, where we have a failed policy of the cold war that we had to enact trying to keep the alliance together. Now with the fall of the wall is the time to build up our economy. Now is the time to go forward with the protectionism that we have for the environment that they are trying to get rid of--clean air, clean water, proper trial at the State level. I have to read aloud the seventh amendment because I do not believe they have ever read it. You ought to see what it says. The seventh amendment to the Constitution: In suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, according to the rules of the common law. They have reexamined the amendment in here where they say, ``Mr. Trial Judge, do not tell the jury about that $250,000 cap, but if they come in, then you go and you factually proceed in violation of the Constitution and come out with your trying of the facts in your decision.'' Come on. They say now they have worked over the many years to pass a product liability bill, and the general aviation bill lets manufacturers sell airplanes that are working so well. Global competition, we have to get into the global competition. I am going to write a follow-up piece for publication. Over half of what is coming in here in imports is American multinational generated. We are competing with ourselves. The multinationals that have lost their country as far as business imports are concerned have gone overseas and they are coming back in and the foreign entities, foreign governments are coming in here with a historic chant. It is devastating our economy. Everybody can see it but us politicians. Everybody can see it but us politicians. It is a given in manufacturing that 30 percent of volume is the cost of the employees, the workers; now we call them the associates. It is a given, further, that you can save as much as 20 percent of sales volume by going to a low-wage country in manufacturing. So if you have $5 million in a sales corporation you can keep your executive office, your sales force, but move your manufacturing offshore to a low-wage country and save $100 million, or you can continue to work your own people and go broke. That is not greedy corporations. That is a stupid Congress that allows that to happen. If I ran a corporation and my competition headed overseas and started cutting his costs that much, I am forced to leave. We have a veritable hemorrhage of industries leaving. I pointed out that Baxter Medical that I brought here years ago, with 830 workers, has just gone to Malaysia. Secretary Reich says, and the Congress says, now what we have to do is retraining, retraining, retraining. Come on. I have skilled training coming out of my ears. We can train them to do anything. We do not need a Federal program. We have BMW without a Federal retraining program, and all these other industries. But assume they are right and they are retrained into wonderful computer operators, 830 of them, the next day. The average age is 45. Do you think they will hire the 45-year-old computer operator or the 25-year-old? With the cost of retirement, with the medical costs and everything, the answer is obvious. What we are dealing with here is not a cost of doing business. I am identifying our injury. Our injury is the failure to, as Lincoln said, ``disenthrall'' ourselves from free trade, free trade, free trade. There is no such thing as free trade. In the 1930's, we had reciprocal trade, and tariffs as the instrumentality--protectionism. Everybody wants to flatten the income tax--flat tax, flat tax, flat tax, is something else going on. Well, we lived on tariffs and protectionism from the beginning of the republic up until 1913. A country, an economic giant, built on protectionism. But they are all running around here like children and hollering, ``Protectionism, protectionism, free trade, free trade. Product liability is such a weight on doing business.'' And all of the business statistics, findings, insurance company results and everything else of that kind show otherwise. I reserve the remainder of my time.

Mr. HOLLINGS. Mr. President, I yield 10 minutes to the distinguished Senator from Wisconsin.

Mr. HOLLINGS. Mr. President, before I yield to the distinguished Senator from Minnesota, I ask unanimous consent to have printed in the Record an article entitled ``In Defense of Big (Not Bad) Business'' from the Washington Post.

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, I rise for the purpose of engaging in a short colloquy with the distinguished Senator from Pennsylvania and the Senator from Arizona regarding the Medicare-Medicaid databank.

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, I would like to take a moment to talk about a book I recently read, and to recommend it to anyone who seeks to learn more about Alhzeimer's Disease. The book is called ``He Used To Be Somebody'' and it is a poignant, soul-searching account of one couple's struggle with the disease as told through the eyes of the wife and caregiver. The author is an extraordinary woman, Beverly Bigtree Murphy. What made this story particularly moving for me is that I knew the man about whom the book is written. Tom Murphy was a good friend of mine. Even if you did not know Tom personally, however, you come to know him over the course of the book. And it is by watching the loss of his great spirit and personality little by little to this disease that the reader comes closer to understanding the reality of Alzheimer's. The book is made up of episodes that illustrate the process by which Alzheimer's disease takes away a loved one. Through her personal anecdotes and history, Beverly Bigtree Murphy conveys a larger picture of what life with an Alzheimer's sufferer is like in a way that no clinical account can. She manages to incorporate in the book her whole ordeal, describing problems caused by lack of understanding from family and loved ones, discouragement from doctors, legal battles and the financial strain. What other people would describe as a nightmare scenario--what is in fact a nightmare, the author accepts as real and shows how she has worked through it. In order to fight the fear, anger and sadness, she uses her strong resolve and her love for her husband. There is a lot to be learned in this book about the effects of grief and the emotional toll of the disease. In addition to being a love story and a very personal account, ``He Used To Be Somebody'' also addresses the larger social issue of Alzheimer's disease. It seeks to disabuse the public of the misconceptions and distortions in the media and in society that stem from a fundamental lack of understanding. In this way, Beverly Bigtree Murphy acts as an advocate for Alzheimer patients and their families. She asserts the power of positive thinking, and describes her realization that even in the face of a hopeless, unchangeable situation, people still have choices. They can choose how to respond. In ``He Used To Be Somebody,'' we see Beverly Murphy choose love over anger. Through her description of isolation, loneliness and feelings of being trapped, she achieves what she describes as: ``a mission to increase awareness of caregiver needs, and to work as an activist to improve the care of and attitudes towards the frail elderly in this country.'' Mr. President, I urge my colleagues to read this book. Whether or not you have a friend or loved one who suffers from Alzheimer's, this book is an excellent tool for understanding the nature of the disease. It is an informative guide and it is an inspirational story.