Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, we have been trying to set a vote here on the amendment offered by Senator Cornyn since about 2, 2:15. I had hoped to vote at 3, and then I had hoped to vote at 3:30. The Senator from Illinois advised me a few moments ago that his preference would be to vote at 4:15. We are willing to accommodate that preference unless there is some inclination to vote sooner than 4:15. Therefore, I ask unanimous consent that we set the vote on the Cornyn amendment for 4:15, with the time equally divided between now and then.

Mr. SPECTER. Mr. President, after lots of discussion, as usual around here, I ask unanimous consent that at 4:45 I be recognized for a motion to table Cornyn amendment No. 2748, and that the time between now and then be equally divided between the two managers or their designees.

Mr. SPECTER. I agree.

Mr. SPECTER. As the Senator from North Dakota outlines the situation, CBO is incompetent, grossly incompetent. When the Senator from North Dakota shows different conclusions which his staff has reached, why wouldn't it be sensible to disband the Congressional Budget Office and just rely on his staff?

Mr. SPECTER. Mr. President, I thank the Senator from Montana for those comments and for his leadership in structuring the bill now on the floor, S. 852. He has accurately described the very serious situation in Libby, MT, where many people have been exposed to asbestos in a dreadful situation, a situation where the W.R. Grace Company sent this deadly substance into the atmosphere knowing its dangers. The bill which has been structured would compensate the people there. The Senator from Montana accurately and forcefully articulates the reasons why the pending amendment for medical criteria is totally insufficient. It simply does not cover people such as those in Libby, MT. It does not cover the thousands of people who worked for companies which were bankrupted--77 of them. It does not cover the veterans of America who are suffering from exposure to asbestos. It does not cover the real core of the issue and the problem at hand. I have talked to Senator Cornyn about scheduling a vote. We would like to have a vote reasonably soon. A vote is always a salutary method of getting Senators to the floor to move the bill along in other respects. Senator Cornyn wanted to have some time for discussion and argument. And a few minutes after 2, I said I would try to accommodate him on what he wanted to do in that respect. But I hoped we could have a vote no later than 3 o'clock. That is still my hope, and to get there, I am going to be brief. I see Senator Leahy on the floor, and I yield to him.

Mr. SPECTER. Will the Senator yield for another question?

Mr. SPECTER. Isn't it true that following the sentence I just read, which was ``there is some likelihood that the fund's revenues would be sufficient to meet those needs,'' the next sentence reads: The final outcome cannot be predicted with great certainty. Isn't that pretty much standard CBO, where they are making projections, and the thrust of what CBO has said and the Senator from North Dakota has cited is that you don't know ``with great certainty''? And isn't it true that in any projection of this sort you cannot have ``great certainty,'' that you don't even have that on proof for the death penalty in a first-degree murder case where it is only proof beyond a reasonable doubt? Isn't it true that CBO in the letter which they sent to me, dated August 25, made a projection that the cost would be between $120 and $150 billion, and the final line on page 8 was $132 billion which is well within the $140 billion figure?

Mr. SPECTER. Mr. President, I have noted the chart. If you could put the chart back up, please.

Mr. SPECTER. Mr. President, I move to table the Cornyn amendment and ask for the yeas and nays.

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. Senators receive lots of letters; relatively few are read. My question to the Senator from North Dakota is, isn't it true that the two sentences which you left off following the chart you have read: There is some likelihood that the fund's revenue would be sufficient to meet those needs. Isn't it true that that is the next sentence in the letter?

Mr. SPECTER. If the Senator will yield further, as to what happened in today's maneuvering and negotiations on the floor, where we have had initially the trial lawyers being against this amendment. If people were wondering what all the maneuvering and negotiation was about, why we could not have an up-or-down vote, but a tabling motion, that is because the trial lawyers think that the amendment offered by Senator Cornyn may be better for them, but they want to change it around so that if this motion to table is not defeated, they will have time to rework it to their satisfaction. That is the way the system works, and if that happens--this is now Thursday afternoon at 16 minutes to 5--there will be frantic negotiations between now and Tuesday, when we come back to work on this bill--or perhaps Monday afternoon--to come to an alliance. I won't call it an unholy alliance, but it will be an alliance in very curious ways, where people who oppose the bill do so out of the mistaken notion that it is going to cost the Government money. This bill is ironclad not to cost the Government money. People on my side of the aisle who are opposed to it don't want to have the Government undertake an obligation, and I agree with that. This bill accomplishes that, with no governmental obligations. Now the issue is whether sufficient trial lawyers on your side of the aisle may come to a majority.

Mr. SPECTER

Mr. SPECTER. Mr. President, the answer to the first question is no. The answer to the second question is yes. OK?

Mr. SPECTER. Mr. President, there are a number of issues to be discussed, but the distinguished Senator from Utah has been awaiting recognition. I yield now to Senator Bennett so he can make his comments. We managers will be here all day and can speak later and not tie up the Senate.

Mr. SPECTER. I do not know if it is possible for this Senator to give a few words. I will try. The answer is no, those are not the only options. The answer is yes, there is another option. The ``yes'' answer is to go back to the tort system. Senator Biden offered that amendment in July of 2003. I am on it because it seemed to me that claimants should not bear the risk of the failure of the trust fund, and in this bill you go back to the tort system. So the claimants are no worse off than they are now. Mr. President, these letters may be part of the Record, but I want to be sure they are. I ask unanimous consent that the letters from the Congressional Budget Office, dated August 25, 2005 and December 19, 2005, be printed in the Record.

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, 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. I do.

Mr. SPECTER. Mr. President, I had hoped to engage in a short colloquy with the Senator from Texas on his amendment, but I had to leave the floor for a moment or two. I want to make a couple of very brief points--and I will elaborate on them more extensively later--and that is the medical criteria bill does not do anything for the employees of companies which have gone bankrupt. There are some 77 of those, and more imminently, so that we have a large group of people suffering from mesothelioma and other deadly, serious diseases who will not be compensated. Then we have the veterans who have had exposure to asbestos in a variety of ways, a lot through Government work, where they do not have anybody to sue. So a medical criteria bill will not help them. Then we have basic consideration of the medical criteria bill that does not really take these cases out of the court system. It does not stop the suits from being filed. It does not stop the extensive discovery process, the depositions, the interrogatories, the medical examinations. When we deal with the question as to injury, it is subject to contest and subject to litigation. So the medical criteria bill is a diversion--I wouldn't call it a poison pill because I don't want to engage in any inflammatory language, but it does not do what the trust fund does, and that is provide a remedy for compensation for thousands of very seriously ill people. While I am on the Senate floor, I want to take up one other point briefly while the Senator from Illinois is on the floor. He has made an argument--an extensive argument--about knowing who is going to put up the money. When I pointed out yesterday that the lists were available to him to know who is putting up the money, that his staff, in fact, had looked at them, he then shifted his ground from not knowing who was putting up the money to the specious argument that they were secret from the public in general and that there is some effort to conceal something which, of course, is not the case. Then on a mutation, he moves from that to a contention that these people who had to be subpoenaed have written the bill because somehow they have provided some information as to how much money is going to be put up, which goes into the bill. I don't think I require any extensive reply to that. I think of my sister Shirley in Elizabeth, NJ, who likes the Senator from Illinois, as I do--sometimes--pointed out to me that she could see through those arguments. But not making the materials available beyond the Senator and the staff--and I can see they ought to be able to copy them--I will stand by that--so that Senator Durbin doesn't have to look at them, his staff can look at them, copy them, and show them to Senator Durbin, all within the range of confidentiality. But that doesn't mean there is some secret being kept from the American people, not as long as Dick Durbin knows what they are; he will protect the American people. Frankly, so will Arlen Specter protect the American people. But it doesn't mean these sinister forces have written the bill because the bill was written by the committee. Senator Durbin is on the committee. He helped write the bill. He made amendments. I think some were even adopted. I won't swear to that. I know one was and then it was changed when we finally understood what it was. We adopted one in about 4 minutes one day--right?--and then we had to change it when we found out what it really was. We do that from time to time. I have taken a look at the issue of confidentiality because I reserved that yesterday during the discussion. I find there are a couple of provisions that are very problematic. One is section 1905 of title 18 of the United States Code which makes it an offense--and I am not sure what, with the abbreviated version I have here, the penalties are, but it prohibits any officer or employee of the United States to divulge information--I will have this printed in the Record--``which information concerns or relates to trade secrets, processes, operations, style of work, or apparatus,'' et cetera. It is hard to interpret it without doing some more research, but I think it may well cover this. There is also a Senate rule, rule XXIX(5), which relates to prohibition against any Senator, officer, or employee of the Senate disclosing secret or confidential business proceedings of the Senate. It does not appear on its face to conclusively cover these kinds of records, but it may. It may be part of the records of the Senate. But I think there is more than a colorable prohibition against disclosure on confidentiality. At least at this time, I wouldn't rule it out completely. I would like to have maximum disclosure, frankly, if it can be done consistent with the law and consistent with the rules of the Senate and consistent with fairness to the companies which provided the information. Mr. President, I ask unanimous consent that this document entitled ``FAIR Act Transparency,'' which includes the references to which I just alluded, be printed in the Record at the conclusion of my remarks.

Mr. SPECTER. Yes.

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

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