F. Sensenbrenner

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Regular order, Mr. Chairman.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. I thank the gentleman for yielding. Mr. Chairman, this amendment is a killer amendment, and it is a killer amendment because it goes back from the principles stated in the bill that the party who is at fault pays and the party who is not at fault does not pay. The bill provides for several liability for noneconomic losses. That means that if a person or a party is determined by the jury to be 1 percent at fault, that party will pay 1 percent of the noneconomic losses, not 100 percent, if the party who is found more negligent by the jury ends up not having any assets or not having any insurance to pay for the judgment.

Mr. SENSENBRENNER. I have a limited amount of time. I think it is only fair, the gentlewoman from Colorado, that the opponents use their time to lay out the case and not horn in on the opponents' time and take all of the time in support of it. Second, what the gentlewoman from Colorado's amendment also proposes to do is to limit the cap on punitive damages. Punitive damages are not compensation for anything. It is designed to be punishment for the party or the parties that are at fault. And the bill provides an elastic ceiling on punitive damages of $250,000, or three times the actual damages, whichever is greater. damages, then the punitive damages cap goes up. Punitive damages are not compensation for anything, whether it is an economic loss or a noneconomic loss. So the gentlewoman is now trying to increase punitive damages awards, which will end up, of course, enriching not only a plaintiff for not what they actually lost but also manufacture's attorney. I would hope, for these two reasons, that this killer amendment would be defeated.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Chairman, I think to close debate it is important for us to focus on what a statute of repose is. A statute of repose is a limit during which period a lawsuit can be filed alleging negligence in the manufacture of that product. The statute of repose here that is proposed is 15 years. That means that the product will have to be on the market and be used for 15 years, during which period of time a lawsuit can be filed and the manufacturer exposes himself to liability. Is not 15 years long enough? If the product is defective, should not that defect become apparent within a 15-year period of time? I think the answer to that question is yes. The gentleman from Ohio [Mr. Oxley] has correctly stated that the 15- year statute of repose that is proposed in this bill is the longest of the State statutes of repose. So by federalizing this issue, we are in effect extending the time for which lawsuits can be filed in most States. The amendment that the gentleman from Illinois is proposing is one that is very important, and that is taking out this last sentence, which was put in the statute of repose section by mistake, that says that if there is a penny of copayment or a penny of a deductible, then there is no statute of repose whatsoever, no limitation on when the lawsuit can be brought. That will mean much higher product liability insurance premiums that manufacturers will have to pay. Who pays those product liability insurance premiums? We all do, as consumers, because those premiums are a cost of doing business. They are folded into the cost of the product. By passing this amendment and establishing a standard of repose, we can lower those premiums, and thus lower the cost to our constituents. I urge an ``aye'' vote.

Mr. SENSENBRENNER. Mr. Chairman, I would like to make two points. First, under the present procedure, whether or not court records are sealed is a matter of judicial discretion. I believe it ought to be kept that way. The judge who presided over the case, and assuming that there is a settlement offer that is coming before the court for approval, makes a determination on whether or not sealing the records is a reasonable request, and I think we ought to, in this instance, trust the judges to represent what is in the public interest. This has to be done on a case-by-case basis. That is not to say that all records should be sealed, but it also is not to say that all records should be open, which is what the gentleman from New York is proposing. The second problem with this amendment is, I think, what the gentleman from New York is trying to do is to do the work for lawyers in subsequent lawsuits on the same issue. Rather than doing their own discovery and findings out their own facts, they can simply go to the courthouse and rummage through the records that are already on file. Consequently, they end up not having to do as much work. Mr. Chairman, we all know that most of these types of cases are taken on a contingency fee basis. By opening up the records and not having the lawyers do the work that they would have to do, they are going to end up spending less time, but their fees are not going to be reduced, because the fees are a certain percentage of the amount that is recovered. For all these reasons, I think this amendment is a bad one, and ought to be defeated. Mr. Chairman, I yield back the balance of my time.

Mr. SENSENBRENNER. Mr. Chairman, the people who support this amendment would have everyone believe that unless the amendment is adopted, we are taking away peoples' rights to sue. That is not the case. There is a constitutional right to sue, and even if we wanted to take that away, which we do not, that could not be taken away under the Constitution. Second, those who support the amendment would have everyone believe that there is a different standard of justice that is applied. That is not true either. The jury makes the determination of economic damages based upon the evidence that is placed before it. That jury cannot discriminate based upon race, based upon age, or based upon gender. It is based upon the evidence that is introduced in that trial and admitted into evidence. And they make the determination on what the economic damages are, and they issue a verdict that will make a plaintiff who has been a victim of the negligence of another, whole. What we are talking about here is punitive damages which are over and above making the injured party whole, damages are not intended as compensation, they are intended to be punishment. In the case of Browning Ferris Industries versus Kelso, 1989, all nine members of the Supreme Court of the United States expressed concern regarding punitive damages. Those justices are not extremists, those justices are not Republicans, those justices look at the law in the cases that come before them. Justice Brennan, who is hardly a rightwing extremist, and countless other members of the Court have stated time and time again that punitive damages are for punishment of aggravated conduct and are a windfall to the plaintiffs. The impact of such a windfall recovery is both unpredictable and at times substantial, said the court in Newport versus Fall Concerts, 1981. ``Juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused,'' said the Supreme Court in Gertz versus Robert Welsh, Inc., 1974. Let us put some sense in this area. Let us reject the Furse amendment.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Chairman, the current system of product liability law in the United States is detrimental to our Nation's economic prosperity. The cost of insurance and litigation causes manufacturers to increase prices, provides a disincentive for business to create new products, and impedes interstate commerce. Tort liability costs are substantially higher in the United States than any other country and currently represent 2.3 percent of U.S. gross domestic product. For the past 20 years, the Democrat-controlled Congress has refused to seriously consider obvious problems inherent in our product liability laws. I am pleased that the new Republican majority has made product liability reform a priority and I enthusiastically support H.R. 956, The Common Sense Product Liability and Legal Reform Act. H.R. 956 will enact several important reforms. It ensures that product sellers will receive reasonable protection against liability for manufacturer error. A plaintiff whose use of drugs or alcohol is partly responsible for an accident will be prohibited from collecting damages from defendants with lesser degrees of responsibility. Limits are established regarding a defendant's liability for non-economic damages to a proportionate share of responsibility. A 15-year limitation for brining most liability actions will also be enacted. The bill also makes important reforms to the system of awarding punitive damages. It addresses burden of proof, proportionality of awards, and bifurcation of proceedings. In addition, I support the Cox amendment to H.R. 956 which expands the legislation to include reform of the medical malpractice system. Congress has spent a great deal of time debating elaborate proposals that would control skyrocketing medical costs. This amendment provides a simple first step to reducing the cost of medical care. In my State, Wisconsin, the average physician pays $40,000 a year in medical malpractice insurance premiums, and specialists pay more. If you assume that the average doctor works 2,000 billable hours per year and charges $20 per hour, then the first $10, or the average cost of the first half-hour of the office visit, is the patient's share of the medical malpractice insurance premium. Medical malpractice premiums have been the fastest growing component of physician's costs. This amendment will reduce frivolous malpractice suits and the corresponding increases in insurance premiums. In my opinion, reforming medical malpractice is an essential start to reforming America's health care system. In the coming months, Congress will debate significant cuts in Government spending for research and development, small business programs, and export promotion. Enactment of this legislation will reduce tort liability costs for American companies and enhance American competitiveness in the world marketplace.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Chairman, I rise in support of H.R. 728. Last Saturday President Clinton in his weekly radio address came out strongly opposed to this bill, saying that it would do away with the commitment that he and Congress made on the 100,000 cops on the beat that were promised in last year's crime bill. Unfortunately, the President is sorely misinformed on how much money is available in his own crime bill, and I believe he ought to apologize to the American people for spreading such misinformation around. Let us look at the numbers in last year's crime bill and what is proposed in H.R. 728, and the American people will see that H.R. 728 has the potential of putting more cops on the beat than the crime bill that President Clinton signed into law last year. Last year's crime bill provides $8.8 billion for community policing over a 6-year period. That is $1.47 billion a year. If the President says that that will pay for 100,000 police on the beat, that means that there is an average Federal payment of $14,700 per police officer. The average cost of a police officer is about $70,000 a year, including the training and equipment expenses, as well as the expenses of hiring a new employee. That means that only about 21 percent of the total commitment of 100,000 cops on the beat will end up being funded by the Federal Government. So 21,000 cops is in the Democrat crime bill, which is a far cry from the 100,000 that the President and the supporters of last year's crime bill are claiming. If you put it another way, if you subtract the Federal funding of the $8.8 billion from what it would cost to put 100,000 cops on the beat, the local communities will have to come up with $33 billion more in property tax revenue in order to put that number of police officers on the beat. So the numbers that the President talked about simply do not add up, and I think that he and those who are using the 100,000 number ought to withdraw those claims quite promptly, because the money from the Federal Government simply is not there. Now, with all of these figures on the table, why is H.R. 728 a better approach? First, it increases the block grant for police to a potential of $10 billion over 5 years. It takes away the strings that local governments have to put property taxpayers' money into paying for some of those expenses. The $10 billion a year is on the assumption that the local communities would spend all of the Federal money on more police and none of it on prevention programs, such as midnight basketball and prisoner self-esteem. Second, it is the local communities that decide how this money should be spent. What is true in New York City and what the needs are in Detroit is not necessarily what the needs are in Menomonee Falls, WI, or Orlando, FL, or some districts that are completely rural. The beauty of block grants is that each community makes that determination for itself following a review of the advisory committee that was outlined by the gentleman from Florida [Mr. McCollum]. Now, I think that the advisory committee and the types of public hearings that have to be held before the actual expenditures are made is the perfect check against money being wasted by local government. But even if it is, that determination can be made by the voters in each local jurisdiction when they go to vote to reelect their mayors or town chairmen and their council members, because come election time, the mayor that has fettered away Federal law enforcement funds on things that do not make any sense at all would be hard pressed to explain to the voters of his or her community why the decision was made. So that accountability and that responsibility to the voters of a particular community is the best check against the dissipation of the Federal funds to things that are not effective that there is. Let us face it: Press and public scrutiny of government decisions at all levels of government is much stronger now than it was during the terrible years of the LEAA. I want to put my faith in local government. This whole question and this whole debate is a question of money and a question of control. I think that local government will do a much better job in spending this money wisely than keeping the control in Washington and the U.S. Department of Justice.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Chairman, the balanced budget amendment is a question of discipline. It is a question of financial discipline on a Congress which has had none. Amending the U.S. Constitution is strong medicine, and in past history has occurred only to correct deficiencies in the Constitution, which was adopted in 1787, to abolish slavery, to give women the right to vote, and in other important matters such as the Bill of Rights. I would submit the strong medicine is in order to force Congress to put America's fiscal house in order. Congress has tried and failed in the past to put discipline on itself in a statutory manner. In 1990 we had the Bush budget agreement with discretionary spending caps and firewalls. That lasted 3 years before it was replaced by the 1993 Clinton agreement. In 1985 we had the Gramm-Rudman law, which was amended twice before it was repealed, because the shoe started to pinch too hard. In 1981 we had the Gramm-Latta, and in 1978 we the Harry Byrd law that required Congress to balance the Federal budget by 1981. To my knowledge that law still is on the books, and since 1981 the national debt has increased by almost $3\1/2\ trillion. So we do need a constitutional amendment to force the people who serve in this Chamber and the one down the hall to start reducing the Federal budget deficit to zero so that we do not mortgage our children and grandchildren's future. It is no secret that many of the most vocal opponents of the balanced budget amendment have big-spending records on issues of taxing and spending, and they are the ones that do not want to put this constitutional discipline on the House of Representatives so that they can go on spending as usual. The time has come to put a stop to that, and that is why House Joint Resolution 1 should pass. Now, tomorrow the biggest item of controversy will be the three- fifths vote that would be required both to raise taxes and to increase the national debt. I favor a three-fifths supermajority in both cases and hope that the House of Representatives will approve it. Why should we not make it harder to increase taxes on the American people and to raise the national debt? We ought to do that so that a balanced budget amendment simply is not complied with by increasing taxes. But also a three-fifths supermajority will require bipartisanship for future tax increases and national-debt increases. No longer will a partisan majority be able to ram a tax increase down the throats of the American people such as happened in August 1993. It will require a consensus in order to achieve a tax increase or in order to increase the national debt. The President last night called for consensus. We have not had consensus in these areas in the past. We ought to have consensus in the future, and the three-fifths vote will require that consensus to be had. I would hope that this amendment would pass and be sent to the States with the three-fifths vote.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, yes, today has been a debacle, and a debacle because I think of people not the reading the rules that we have been living under for as long as I have been been voted upon today and the Speaker's rulings have been in the precedent book of the House of Representatives for decades. It has never been in order for one Member to impugn the motivation of another Member. Speakers throughout the years, whether they be Democrat or Republican, have always enforced that rule in a uniform manner, and that is what happened today. I do not see why my friends on the other side of the aisle object to that. They should not, because their Speakers enforced their rules just like our Speaker today has enforced the rules that we adopted in the first day of the session. Let us get down to legislation instead of talking about this.