Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, whatever arguments are advanced by skillful advocates and skillful Senators, the underlying question of this budget point of order is whether the budget will be impacted and hurt. The fact is, there is no Federal money. So there is no substantive merit to the point of order. The Federal Government is implicated only because the Department of Labor is involved as a conduit. That is fact No. 1. Fact No. 2 is if this budget point of order is upheld, this bill is killed after 3 intense years of work, with hundreds of meetings, with numerous conferences, and 36 meetings presided over by Judge Becker and myself. And there will be no opportunity to have amendments to improve it. We may yet be able to pass a bill which will satisfy the critics. So let us have 3 more days as we have worked 3 years. It has been a process by the committee for three decades. But let us have 3 more days with all the work that has been done to bring it to this point. Everyone agrees with the need for a bill. Everyone agrees there are tens of thousands of asbestos victims who are dying without compensation because their companies are bankrupt, or because they are veterans who sustained their injuries in the service and have no one to sue. Everyone agrees it has a tremendous impact on the economy. So let us take 3 more days. This vote is razor thin. Nobody knows how it is going to come out. It may well be decided by a single vote, as so many votes are in this body. I ask each of my colleagues to ponder carefully--there are many, as last reported, undecided--and give us the benefit of the doubt. Give me the benefit of the doubt as chairman of the committee who has brought this forward. Give the Judiciary Committee the benefit of the doubt, and give the benefit of the doubt to substantially more than 50 Senators. We are at least in the high fifties--maybe higher. But give us the benefit of the doubt with 3 more days of the time of the Senate. I thank the Chair. I thank the Senator from Nevada for yielding.

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

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

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

Mr. SPECTER. I am willing to yield back the remaining time if the Senator from Nevada is.

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

Mr. SPECTER. Mr. President, the point of order which has been raised has no substance on the merits. The point of order has no substance on the merits because there is no Federal funding involved in the legislation which creates a $140 billion trust fund. All of the money comes from private sources, from manufacturers, and from the insurance companies under the agreement reached by Senator Frist, the Republican majority leader, and then-Senator Daschle, the Democratic minority leader, establishing this trust fund. The Congressional Budget Office filed a letter yesterday, February 13, on the substitute which was offered. Instead of having a managers' package of some 47 amendments, which could have been considered one by one, they were added to the original text of S. 852 as a substitute bill. The Congressional Budget Office letter made the essential conclusion that the substitute is budget neutral. The key paragraph reads as follows: CBO also estimates that, so long as the fund's administrator does not borrow amounts beyond the means of the fund to repay (as the bill would require), the government's general funds would not be used to pay asbestos claims. Furthermore, section 406 of the bill states that the legislation would not obligate the federal government to pay any part of an award under the bill if the amounts in the asbestos fund are inadequate. This is the crucial line: Thus, CBO concludes that the legislation would be deficit- neutral over the life of the fund. So as a matter of the merits, the point of order has no substance because there is no Federal funding involved. The argument which was made last Thursday by the Senator from Nevada, Mr. Ensign, was that some future Congress might obligate the Government to pay money. The obvious response to that, which I made on Thursday and repeat now, is that this Congress should not try to bind what some future Congress may do. It is difficult enough for us to decide what is the appropriate course of action in the year 2006, without trying to look ahead, as this budget point of order contemplates, for a 10-year period, from the year 2016 to the year 2055, on payments in excess of some $5 billion over a 10-year period. The underlying merits of the bill, I think, have been established. You have a chaotic situation today where litigation costs on asbestos claims eat up 58 cents on the dollar, so that claimants only get 42 cents on the dollar. This has resulted in some 77 companies going bankrupt. Some $70 billion has been expended. The courts are overburdened, leading the Supreme Court of the United States to ask the Congress, on several occasions, to deal with this problem. This legislation has been drafted and analyzed and amended and modified, I think, more than any bill in the history of legislative action. I know that is a grandiose statement. I made it last week, and I repeat it today. I would challenge anybody who knows of any bill which is as complicated to step forward. Shortly after the bill was reported out of the Judiciary Committee in July of 2003, I asked a distinguished senior Federal judge, Edward R. Becker, who had been chief judge of the Third Circuit, to undertake the mediation of the great many complex issues involved. For 2 days in August of 2003, Judge Becker and I met with about 20 so-called stakeholders in his chambers in Philadelphia, the stakeholders being the manufacturers, the insurers, the trial lawyers, and the AFL-CIO, to try to work through the problems. Since that time, there have been some 36 meetings held in my office. We reported a bill out of the Judiciary Committee last May 26. We have accepted a great many amendments and are here today to move ahead with the amendment process. I have urged my colleagues and have talked to most of the Senators on an individual basis, and visited many of my colleagues in their offices, talked to many more on the floor when we have had a break in between votes. When I have talked to people and explained to them the intricacies of this complex legislation, the responses have been good. There is a proposal for a medical criteria bill. I think that is not a preferable solution because it would not provide a fund for the employees of companies which have gone bankrupt, nor would it provide funds for the veterans who have sustained their damages at shipyards or in military service. But that is something which could be debated and voted upon before cloture is invoked, or perhaps a germane amendment can be drafted which would survive cloture, which is scheduled for tomorrow. But, in any event, it is my expectation that we ought to be ready to vote some time this afternoon. So I urge any of my colleagues who have anything to say about this budget point of order to come to the floor so we may debate the issue and be prepared to vote. In the absence of any Senator seeking recognition, I suggest the absence of a quorum.

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

Mr. SPECTER. Mr. President, I would like to comment briefly on the disagreement I had with the Senator from Illinois, Mr. Durbin. He has made the false representation that there is a secret list of who is going to provide the money. It is not a secret list. It has been made available, and I offered it to him on the floor. But under the law, when it contains confidential information, it is available for the Senators and their staffs and those preparing the legislation, but it is not available for the general public on trade secrets. When the bill is certified, then it goes into the public record and the public domain. But to say that it is a secret list is the purest form of demagoguery and a specious argument. On to the essential point of this budget point of order, it does not have any substantive merit because there is no Federal money involved. The Federal Government is implicated only because the Department of Labor is a conduit. That is the only reason the Federal Government is involved. The Congressional Budget Office has said flatly in the letter to me dated yesterday: CBO concludes that the legislation would be deficit-neutral over the life of the fund. CBO, in their letter today to Senator Conrad, repeated: CBO concluded in its February 13 letter to Senators Gregg and Specter that the proposed amendment would be deficit- neutral over the life of the fund. So there is no Federal money involved, pure and simple, and there is no basis to say that the budget would be impacted, so that on the merits, there is no basis for this point of order. The practical application is that if this point of order is sustained, this bill will die. This is an issue which has been before the Judiciary Committee for the better part of three decades, and it has been before the committee in the past 3 years on a very intense basis. The majority leader has set aside 2 weeks for the consideration of this bill. If this point of order is overruled, we will proceed to a cloture vote tomorrow, and we will proceed to take up amendments, and we have a realistic chance of concluding this bill yet this week. It is backed up against a recess period, and we have a chance to finish this bill. If this point of order is sustained, then the work which Judge Becker has done in presiding over some 36 meetings, attended by 20 to 50 to 60 representatives, countless meetings, will be in vain. If the point of order is upheld, the bill is gone. If it is rejected, there will be ample opportunity for amendments to be presented and for the bill to be improved. There are those who wish to offer an alternative of a medical criteria bill. I do not think a medical criteria bill is as good as the current bill because the medical criteria bill would not cover employees whose companies are bankrupt or veterans who have no one to sue. But at least that would be an alternative which would be preferable to the current system. I believe it is fair to say that the Presiding Officer might be attracted to a medical criteria bill, and certainly many who oppose the trust fund would prefer to have something such as a medical criteria bill rather than have nothing. If the point of order is upheld and the bill is dropped, you can't do anything. There is a question as to whether it is germane, but that is a matter for the Parliamentarian and that is a matter for ingenuity and that may be worked out. If you do not go to a medical criteria bill, there are germane amendments which could be offered to change the medical criteria. Here again, I am opposed to the modifications, but they could be made and the bill could be altered. The whole beauty about the Senate is that--when we have these complex issues and we have the synergism of 100 Senators and our staffs--with our experience, with our analysis of what we have done, we have a chance to establish public policy in the interests of Americans. Everybody agrees. Not one person who has taken the floor has disagreed with the enormity of the problem. Everybody agrees that it is horrible that people are dying of deadly diseases from exposure to asbestos and have no one from whom to collect. There is disagreement about how to handle it. There is no disagreement about the tremendous amount of work which has been done in this bill. On a strictly personal level, the committee, the staffs, and I have put in countless hours that ought not to go down the drain on a technicality. If we have this bill on the floor for 3 more days this week and if at the end of that time, or whatever time the bill is on the floor, there is a decision made that no bill is better than the bill we come to, then so be it. It is rejected. But to have it rejected on a technicality is a terrible waste of so much time and effort which has gone into bringing this bill to this position. I have made a statement which I believe to be true--although I can't prove it--that there has never been a bill subjected to more analysis and scrutiny than this bill. Or in the alternative of accepting that assertion--I know it is a grandiose assertion--can anybody point to any bill which has had more analysis or more scrutiny? What a waste it would be to have it dismissed on a technicality when the consequences are that thousands of victims of asbestos will continue to die without compensation, the 77 companies now in bankruptcy will be multiplied, and the economy will withstand a $300 billion loss. Let us take 3 more days, as we have taken the past 3 years, to see if we can produce a bill which will satisfy the critics of the present measure. We have done a count as to how the Senators are going to vote. It is impossible to say with certainty exactly what is going to happen. There are too many people who are still undecided. So as I talk to my 99 colleagues, I ask you to weigh very heavily this vote because this is a measure, as many are, which might be decided by a single vote. Why let it all go down the drain on a technicality when we might be able, in the course of 3 more days, to produce something which would be satisfactory to a majority of this body? Mr. President, how much time do I have remaining?

Mr. SPECTER

Mr. SPECTER. As Senator Leahy is aware, periodically the Sentencing Commission has sought to update the Federal sentencing guidelines upon the periodic directive of Congress to reflect and account for changes in the manner in which intellectual property offenses are committed. The recent amendments to which you refer were promulgated by the Sentencing Commission pursuant to the authorization in the Family Entertainment and Copyright Act of 2005, also known as FECA. These amendments to the Federal sentencing guidelines, which took effect on October 24, 2005, address changes in penalties and definitions for intellectual property rights crimes, particularly those involving copyrighted prerelease works and issues surrounding ``uploading.'' For example, these guidelines provide for a 25 percent increase in sentences for offenses involving prerelease works. In addition, the Commission revised its definition of ``uploading'' to ensure that the guidelines are keeping up with technological advances in this area. I would like to make it clear for the record that the directive to the Sentencing Commission in section 3 of H.R. 32 is not meant as disapproval of the Commission's recent actions in response to FECA. Rather, section 3 covers other intellectual property rights crimes that Congress believes it is time for the Commission to revisit. Specifically, section 3 directs the Commission to review the guidelines, and particularly the definition of ``infringement amount,'' to ensure that offenses involving low-cost items like labels, patches, medallions, or packaging that are used to make counterfeit goods that are much more expensive are properly punished. It also directs the Commission to ensure that the penalty provisions for offenses involving all counterfeit goods or services or devices used to facilitate counterfeiting are properly addressed by the guidelines. As it did in response to the No Electronic Theft Act of 1997 and FECA, I am confident that the Commission will ensure that the Federal sentencing guidelines provide adequate punishment and deterrence for these very serious offenses, and I look forward to the Commission's response to this directive.

Mr. SPECTER. At this point, I would like to take this opportunity to thank like to thank Representative Jim Sensenbrenner, Chairman of the House Judiciary Committee, and Representative Joe Knollenberg for their leadership in the House with regard to H.R. 32. In January of 2005, Representative Knollenberg introduced H.R. 32 in the House. When the bill was in Committee, he fostered negotiations between the Department of Justice, the U.S. Chamber of Commerce, and the International Trademark Association to ensure that it passed the House. I would also like to thank my colleague Senator Leahy, ranking member of the Senate Judiciary Committee, and Senators Alexander, Bayh, Brownback, Coburn, Cornyn, DeWine, Durbin, Feingold, Feinstein, Hatch, Kyl, Levin, Reed, Stabenow, and Voinovich for their cosponsorship of S. 1699, the companion legislation to H.R. 32. It is through the hard work of all of these Members that we were able to achieve truly bipartisan support for language that will ensure the protection of American-held trademarks.

Mr. SPECTER. Mr. President, I will to take a moment to speak about H.R. 32, the Stop Counterfeiting in Manufactured Goods Act of 2005, sponsored by Representative Knollenberg and 59 House cosponsors. The counterfeiting of goods bearing American held trademarks is an important problem that I am committed to fighting, as reflected by my sponsoring S. 1699, the Senate companion bill to H.R. 32, earlier this year with Senator Leahy and Senators Alexander, Bayh, Brownback, Coburn, Cornyn, DeWine, Durbin, Feingold, Feinstein, Hatch, Kyl, Levin, Reed, Stabenow, and Voinovich. H.R. 32, the Stop Counterfeiting in Manufactured Goods Act of 2005, addresses a problem that has reached epidemic proportions as a result of a loophole in our Criminal Code: the trafficking in counterfeit labels. Criminal law currently prohibits the trafficking in counterfeit trademarks ``on or in connection with goods or services.'' However, it does not prohibit the trafficking in the counterfeit marks themselves. As such, there is nothing in current law to prohibit an individual from selling counterfeit labels bearing otherwise protected trademarks within the United States. This loophole was exposed by the Tenth Circuit Court of Appeals in United States v. Giles, 213 F.3d 1247, 10th Cir. 2000. In this case, the United States prosecuted the defendant for manufacturing and selling counterfeit Dooney & Bourke labels that third parties could later affix to generic purses. Examining title 18, section 2320, of the United States Code, the Tenth Circuit held that persons who sell counterfeit trademarks that are not actually attached to any ``goods or services'' do not violate the Federal criminal trademark infringement statute. Since the defendant did not attach counterfeit the marks to ``goods or services,'' the court found that the defendant did not run afoul of the criminal statute as a matter of law. Thus, someone caught redhanded with counterfeit trademarks walked free. H.R. 32 closes this loophole by amending title 18, section 2320 of the United States Code to criminally prohibit the trafficking, or attempt to traffic, in ``labels, patches, stickers'' and generally any item to which a counterfeit mark has been applied. In so doing, H.R. 32 provides U.S. Department of Justice prosecutors with the means not only to prosecute individuals trafficking in counterfeit goods or services but also individuals trafficking in labels, patches, and the like that are later applied to goods. Congress must act expeditiously to protect U.S. held trademarks to the fullest extent of the law. The recent 10- count indictment of 4 Massachusetts residents of conspiracy to traffic in approximately $1.4 million of counterfeit luxury goods in the case of U.S. v. Luong et al., 2005 D. Mass., underscores the need for this legislation. According to the indictment, law enforcement officers raided self- storage units earlier this year and found the units to hold approximately 12,231 counterfeit handbags; 7,651 counterfeit wallets; more than 17,000 generic handbags and wallets; and enough counterfeit labels and medallions to turn more than 50,000 generic handbags and wallets into counterfeits. Although the U.S. Attorney's Office was able to pursue charges of trafficking and attempting to traffic in counterfeit handbags and wallets, they could not able to bring charges for trafficking and attempting to traffic in the more than 50,000 counterfeit labels and medallions. As such, these defendants will escape prosecution that would have otherwise been illegal if they had only been attached to an otherwise generic bag. This simply does not make sense and had the Stop Counterfeiting in Manufactured Goods Act of 2005 been in effect at the time of indictment, U.S. prosecutors would have been able to bring charges against the defendants for trafficking and attempting to traffic in not only counterfeit goods but also counterfeit labels. As Assistant Attorney General Alice Fisher said, ``Those who manufacture and sell counterfeit goods steal business from honest merchants, confuse or defraud honest consumers, and illegally profit on the backs of honest American workers and entrepreneurs.'' This point is underscored by the Bureau of Customs and Border Protection estimate that trafficking in counterfeit goods costs the United States approximately $200-$250 million annually. With each passing year, the United States loses millions of dollars in tax revenues to the sale of counterfeit goods. Further, each counterfeit item that is manufactured overseas and distributed in the United States costs American workers tens of thousands of jobs. With counterfeit goods making up a growing 5 to 7 percent of world trade, this is a problem that we can no longer ignore. To be sure, counterfeiting is not limited to the popular designer goods that we have all seen sold on corners of just about every major metropolitan city in the United States. Counterfeiting has a devastating impact on a broad range of industries. In fact, for almost every legitimate product manufactured and sold within the United States, there is a parallel counterfeit product being sold for no more than half the price. These counterfeit products range from children's toys to clothing to Christmas tree lights. More frightening are the thousands of counterfeit automobile parts, batteries, and electrical equipment that are being manufactured and placed into the stream of commerce with each passing day. I am told that the level of sophistication in counterfeiting has reached the point that you can no longer distinguish between the real and the counterfeit good or label with the naked eye. However, just because these products look the same does not mean that they have the same quality characteristics. The counterfeit products are not subject to the same quality controls of legitimate products, resulting in items that are lower in quality and likely to fall apart. In fact, counterfeit products could potentially kill unsuspecting American consumers. In addition to closing the ``counterfeit label loophole,'' the Stop Counterfeiting in Manufactured Goods Act strengthens the Criminal Code and provides heightened penalties for those trafficking in counterfeit marks. Current law does not provide for the seizure and forfeiture of counterfeit trademarks, whether they are attached to goods or not. Therefore, many times such counterfeit goods are seized one day, only to be returned and sold to an unsuspecting public. To ensure that individuals engaging in the practice of trafficking in counterfeit marks cannot reopen their doors, H.R. 32 establishes procedures for the mandatory seizure, forfeiture, and destruction of counterfeit marks prior to a conviction. Further, it provides for procedures for the mandatory forfeiture and destruction of property derived from or used to engage in the trafficking of counterfeit marks. When this legislation was sent over to the Senate from the House, concerns were raised to Senator Leahy and myself about the language in Section 2(b)(1)(B) of this bill pertaining to the forfeiture authority of the U.S. Department of Justice. In focusing our attention to this section, we discussed the scope of the facilitation language, which parallels the drug and money laundering forfeiture language in 21 U.S.C. 853 and 18 U.S.C. 982, respectively, and how it might relate to Internet marketplace companies, search engines, and ISPs. Specifically, we were aware of concerns regarding the potential misapplication of the facilitation language in section 2(b)(1)(B) to pursue forfeiture and seizure proceedings against responsible Internet marketplace companies that serve as third party intermediaries to online transactions.

Mr. SPECTER

Mr. SPECTER. Will the majority leader yield for a very brief discussion on this point?

Mr. SPECTER. Mr. President, I thank the leader very much for the comments he just made. I would like to pick up on just a couple of them. What is generally misunderstood, notwithstanding how many times we have said it, is that there is no Federal money in this bill. The bill is ironclad that the Federal Government will have no obligation at all, and even though it has been said repeatedly, talking to Senators in the well of the floor yesterday, it has not really sunk in. I can understand why it has not sunk in--because the bill is so complicated-- but it is worth repeating. There is no Federal money in the bill. The objection which is raised is that some future Congress may want to add money to the bill from the Federal Treasury. But that is not a valid consideration for this Congress. We are doing the best job we can here in the year 2006. But if some future Congress 20 years from now or 30 years from now or 15 years from now makes another decision, we have to respect that. We are not so smart to handle the current problems, let alone anticipate what is going to happen a decade or more from now. So when people raise the issue about more expenditures, they are not doing it because of this bill; they are doing it because of what some future bill may provide. There is another consideration which the leader and I were just discussing which is worth commenting about on the floor so others may hear it, and that is that out of respect for the committee system, this bill ought not to fall on a budget point of order. The Judiciary Committee has spent years--really working on it for decades but intensively for the past 3 years--and we passed it out 13 to 5, all 10 Republicans for it, albeit with some reservations, and 3 Democrats-- Senator Leahy, Senator Feinstein and Senator Kohl. It is bipartisan. People are surprised to hear that on the point of order, it is the Budget Committee which makes the determination and not the Parliamentarian. When I tell my colleagues that, they are surprised. But as I conferred with the Parliamentarian yesterday, he confirmed the fact that the practice here is not to have the Parliamentarian rule but to have the Budget Committee rule and really to have the chairman make the decision. After working intensively on this issue for the 25 years I have been here, and intensely for the past 3 years, it seems to me as a matter of basic equity that we ought not to have this bill pulled from the floor by a single vote when we are in the midst of adding amendments which may cure all of the problems people see. Senator Cornyn, for example, who proposed the medical criteria bill yesterday, has told me that he does not favor upholding the point of order, that he thinks the bill ought to go forward. Senator Cornyn has said he may have as many as four more amendments. Senator Kyl has an amendment on the floor now which will protect the smaller companies. Senator Coburn may have an amendment on tightening up the medical criteria. When we have worked for 3 years intently, why not let this bill stand for 3 more days next week to see if we can work out the problems? I submit to all of my colleagues, and especially my colleagues on the Budget Committee, this is not where it ought to be decided by a supermajority. This body had very intensive debate on when a filibuster ought to be allowed, and we came to the conclusion that it should be extraordinary circumstances. I think the analogy right on all fours, as we say in the law--on all fours. To defeat this bill by a supermajority, there ought to be some extraordinary circumstance, which there is not. This may be too strong a word, but, frankly, this is how I feel about it: I believe it is insulting to the Judiciary Committee to have these years of work at risk by a single vote because of what another committee says, when we have gone through this bill A to Z and we are still open for business to make changes. It is worth note, the editorial support which I think is a bit removed. We have already had the New York Times speak very forcefully. The Washington Post says, in part, ``legislation that serves the public interest'' in coming out for the bill. The Washington Times, which is noted for its more conservative view, endorses the bill today, saying, ``this bill should pass.'' One of the issues which the Washington Times raises is the key one raised by the Budget Committee as to what is going to happen in the future; that is, as they say: and how can one minimize the chances of some future Congress putting taxpayers on the hook for likely overruns? OK, we are still working on it. But the Washington Times faces up squarely to that consideration as to what a future Congress may do. I have found that, while talking to Senators individually and they begin to understand it, there is a good response. I have visited individually with many Senators on both sides of the aisle, and I intend to continue to do so when we have the time to do so. But it is my hope that my colleagues will look closely at respect for the committee system and what the Judiciary Committee has done here and will at least give this bill a few more days and will not superimpose a supermajority on legislation which ought to be decided, as our customary Democratic procedures are, by a democratic vote. I thank the distinguished leader of our party for all of his hard work on this, bringing it to the floor, and his steadfast support, and notify all of our Republican colleagues that the leader and Senator McConnell and Senator Sessions and Senator DeWine and maybe others and I will be talking individually, and I put my Democratic colleagues on notice, too, that I am about to call them up for a private meeting. I ask unanimous consent that the editorials I referenced from today's Washington Post and Washington Times be included in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I thank the Senator from Arizona for offering this amendment. This is a good amendment. There has been a great deal of concern that smaller businesses--although we are talking about businesses which are substantial, but they are smaller than many in the field--should not pay more than they can afford to pay. This amendment achieves that result. I add that Senator Kyl has been an outstanding member of the committee for many years, and in the past year and a half since I have become chairman, he has been a stalwart and has worked tirelessly on this bill. I don't know how many meetings he and I and others, including the presiding Senator, Mr. Cornyn, have had. This has been a matter very much on the Senator's mind and many others who have suggested many other provisions. It is a very good amendment. I thank and compliment the Senator.

Mr. SPECTER. I move to waive the point of order under the applicable provisions of the rules and statutes.

Mr. SPECTER. Mr. President, the essence of this issue is that the point of order should not be sustained because there is no Federal money involved. All of the money involved comes from private sources. This is a make-or-break issue for this bill. The Federal budget is not involved in this bill. To repeat, which I don't like to do, but for emphasis, the Federal budget is not involved in this bill. The money comes from private sources. It goes through the Department of Labor as a conduit. Technically, there is a Federal expenditure, but it is not the Federal Government's money. Now, the only issue which has been raised is that at some point in the future, the Federal Government might seek to bail out this trust fund. The bill is emphatic in a number of places that the Federal Government has no obligation to pay out any money. If the trust fund runs short, there are provisions to meet that situation. It is a complicated provision, but the administrator makes an analysis, and if he sees the necessity to make some modifications in the trust fund, he can take it to a committee and the committee can then make a recommendation to Congress. The Congress has to act. The real safety valve is the one provided by the Biden amendment in July of 2003 that if the fund runs out of money, claimants can go back to court. So the claimants are no worse off going back to court if the trust fund runs out of money than they are now. But in the interim, thousands of people who suffer from deadly diseases--mesothelioma and exposure to asbestos--will be paid where they cannot be paid now because their companies are bankrupt or they are veterans and there is no one to sue. The consideration that some future Congress, decades down the road, in the year 2030, might have a different view is up to the Congress in that year. We cannot bind them as to what they are going to do, nor should we try to bind them. But what we do here does not implicate or involve the Federal Treasury. To say that there may be a temptation in the future for some Congress to spend Federal funds is not something we should do. It is not within our purview. It is not within our responsibility. In fact, we ought to keep our hands off the future Congresses. We should not presume that we know enough in the year 2006 to tell the Congress in the year 2026 what to do. They will be elected. They may well be a lot smarter than this Congress. Perhaps it is hard not to be. But it is up to them at that time. This is a convenient maneuver to defeat the bill by requiring 60 votes. That is like the motion to proceed, the filibuster, to try to structure a vote for 60 votes, to try to find enough people who do not like the bill; only takes 41 who do not like the bill to defeat the bill on this kind of a maneuver, whereas it takes 51 to defeat this bill otherwise. The administration is for it. If this bill goes 50-50, the Vice President votes for it. The President issued a statement of support on S. 852. There are caveats in it. He said there are concerns. I don't know of any Member of this Senate who does not have some concerns about this bill. But that is what the debate is for. That is what we are here to consider. We will not be able to consider this if this point of order is sustained. I yield to the real expert on budgets, a man who was chairman of the Committee on the Budget for 73 years.

Mr. SPECTER. I thought he chaired it his entire life. Senator Domenici was the chairman of the Committee on the Budget the day I was sworn in. I have great respect for Senator Gregg, chairman of the Committee on the Budget today, but I yield to the chairman of the Committee on the Budget emeritus.

Mr. SPECTER

Mr. SPECTER. Mr. President, when the Senator from Illinois talks about doing it in an honest way--we have done that. We have been honest. When he talks about, if we make a mistake, there will be a lot of human suffering, there is a lot of human suffering right now. It would be hard to structure a substitute system which would have more human suffering than you have now. We are looking at a system which is totally debilitating and decimating, with the courts clogged and with thousands of people suffering from deadly diseases and not being compensated. When the Senator from Illinois makes a reference to saluting me for trying, I appreciate salutes of any kind, but I am looking to the possibility of a salute for succeeding. I don't know how this debate is going to turn out or what is going to happen in the final vote. But I do know that for more than 3 decades, nobody has been able to bring a bill to the floor and nobody has been able to move past a determined effort by the minority to block this bill with a filibuster. When that effort failed late in the afternoon on Tuesday, they wanted to withdraw the motion, and we defeated it very soundly. The Senator from Illinois says I have undertaken a Herculean assignment. It is a Herculean problem. I wish Hercules was around to handle it. I would be glad to defer to Hercules were he here. When the Senator from Illinois refers to cutting payments, that does not happen unless the Congress agrees. When the administrator evaluates the trust fund and finds that there may be insufficient funds to pay the claims, the administrator then reports to a committee of 20, selected by the leaders of the House and Senate, and then they make a recommendation to the Congress. So it isn't a cut without having congressional action. As wise as we may think we are today, there will be Senators here into the indefinite future; we hope forever. They will have the wisdom, they will make a judgment, and they will have the determination as to what payments are going to be made. So it is not an automatic or easy cut in payments. Bear in mind that the basic remedy is to go back to the tort system, to go back to court. So the claimants are no worse off under the tort system than they are today, if no plan is adopted. The Senator from Illinois has repeatedly challenged the establishment of the trust fund of $140 billion. Yesterday, he referenced a letter which he sent to me to which he has not gotten an answer. I checked about the letter and I checked about what we did about the questions raised in the letter, and the answer was we had a briefing 2 days later. We answered the questions, not by written letter but by a more detailed statement from a briefing. When the Senator talks about the $140 billion which was established, all the information was available in that briefing, and still is to the Senator from Illinois about projections based upon experience with asbestos. When we talk about the Bates White report, that has been thoroughly refuted. They took into account people such as manicurists and taxi drivers who did not have an occupational exposure to asbestos. The Congressional Budget Office came up with an analysis of Bates White, and left the Bates White report in ruins. We had a detailed hearing on that as we have had every time an issue has arisen. The Congressional Budget Office then issued a supplemental report showing that Bates White was wrong and their initial figures were correct. On page 8 of the report submitted by the Congressional Budget Office, dated August 25, 2005, they have a chart where it supplements their analysis that there could be costs in the range of $120 billion to $150 billion, and then they come to a net conclusion of the projection at $132 billion. These are projections; they are not guesses; they are not speculations; but they are not mathematics, either. They are based upon the best information available and they are judgment calls. In the letter from the Congressional Budget Office dated December 19, they included this statement after analyzing a great number of factors: The final outcome cannot be predicted with great certainty. I don't know what can be predicted with great certainty. I know for many years I was a district attorney prosecuting criminal cases and handled first-degree murder cases. The death penalty is imposed in America is if it is proved beyond a reasonable doubt. But on a level of great certainty, that is not an attainable level, and I would say almost in any field of human endeavor. I don't want to be too expansive in that assertion, but great certainty is not something you come by in the ordinary affairs of men and government.

Mr. SPECTER. Yes.

Mr. SPECTER. I am prepared to have the Senator told because I don't have it at my fingertips. But I am prepared to have that information given to the Senator from Illinois. Yes. I yield the floor. Exhibit 1 FAIR Act Transparency Funding is guaranteed. The $140 billion in defendant participant contributions to the Fund under the FAIR Act are guaranteed by the manufacturers and industry. Certification. The fund cannot be deemed operational until the Fund Administrator publishes a list of defendant participants and their required payments in the Federal Register. Senator Durbin's assertions that outside groups wrote the FAIR Act is flat wrong. S. 852 creates an allocation formula whereby contributions are based directly on a manufacturers ``prior asbestos expenditure'' in the tort system. This was a FORMULA created and drafted by SENATORS. Our Congressional subpoena was directed at the corporations to identify, by computing their ``prior asbestos expenditure'' what tiers of the funding formula they would fall into. Process. I have met with many Senators individually including, at different times, Senator Cornyn (4/12/05) and Senator Feinstein (5/10/05) on the issue of transparency. The Judiciary Committee issued three subpoenas in an effort to learn more about the companies likely to pay into the Fund created by the FAIR Act. The subpoenas were dispatched between September 30 and December 1 to groups representing companies on both sides of this bill. These transparency efforts led to the creation of a spreadsheet with the names and anticipated tier assignments of companies. The staff came up with their estimates based upon publicly available information included in SEC filings and data gathered through hundreds of phone calls. In light of this information, Judiciary Staff held at least two transparency briefings, the first of which occurred on October 7, 2005. All Senators and their staff can view a list compiled now. This list is confidential because it includes confidential information from businesses. Confidentiality. In issuing the subpoenas and making telephone calls, my office informed companies that the information obtained would be held confidential pursuant to Rule XXIX of the Standing Rules of the Senate and under 18 U.S.C. 1905. Rule XXIX (5) of the Standing Rules provides: ``[a]ny Senator, officer, or employee of the Senate who shall disclose the secret or confidential business or proceedings of the Senate, including the business and proceedings of the committees, subcommittees, and offices of the Senate, shall be liable, if a Senator, to suffer expulsion from the body; and if an officer or employee, to dismissal from the service of the Senate, and to punishment for contempt.'' Similarly, Section 1905 of Title 18 of the United States Code provides: Whoever, being an officer or employee of the United States . . . divulges, discloses, or makes known in any manner . . . any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; . . . . shall be fined under this title, or imprisoned not more than one year, or both; and shall be removed from office or employment. In light of the foregoing, the Senate Judiciary Committee reiterates what we have said from the beginning of this exercise: we are prepared to share the spreadsheet with any Senator or designated member of their staff. The staff may even make a copy of the spreadsheet so long as they sign an acknowledgement form indicating they understand the information is to remain confidential pursuant to Rule XXIX and 18 U.S.C. 1905.

Mr. SPECTER. Mr. President, I send an amendment to the desk.

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

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

Mr. SPECTER. I ask unanimous consent the reading of the amendment be dispensed with.