Asbestos Legislation

ASBESTOS LEGISLATION -- (Senate - January 04, 2005)

Mr. SPECTER. Mr. President, I have sought recognition to discuss briefly the status of efforts to have asbestos tort reform legislation, a matter which has been before the Congress of the United States for more than two decades.

I had my first contact with the issue back in 1984 when then-Senator Gary Hart of Colorado brought in a constituent to talk about asbestos. It has been an issue which we have labored with long and hard, and in the last Congress, Senator HATCH, Chairman of the Judiciary Committee, advanced legislation with the concept of a trust and a schedule of payments to avoid the costs and risks of litigation and to treat asbestos injuries very much like workers' compensation.

A bill was passed out of the Judiciary Committee last July, pretty much on a party-line vote, as the distinguished Presiding Officer, Senator CORNYN of Texas, knows because he was and is on the Judiciary Committee and did a prodigious amount of work on this issue. The bill was passed out with a number of problems. I voted for it to move it along. I then enlisted the assistance of the former Chief Judge of the Court of Appeals for the Third Circuit, Edward R. Becker, who was in senior status. Judge Becker convened a large group of so-called stakeholders in his chamber. For two full days in August, he met in his chambers with representatives of the manufacturers, representatives of the AFL-CIO, representatives of the insurance industry, the reinsurance industry, and trial lawyers to start to work through a large number of problems which appeared to be intractable. We have worked through many of those problems, but some still remain.

There had been some talk about a draft bill being offered, but it is not appropriate to offer legislation until later this month under the procedures established by the majority leader, and the proposed draft legislation is not quite ready, although a great deal of work has been done on it.

There have been major issues raised as to what the total amount of the trust fund should be. There have been issues raised as to how much money should be in the startup fund; how long the trust fund ought to function before giving the claimants the right to revert to the judicial system because the legislation necessarily takes away their right to jury trial in consideration of a certain amount of money to be paid under the trust fund; and the problems that many victims are having where they are unable to collect from anyone--people with mesothelioma, a deadly disease, with cancer, with many ailments from the exposure to asbestos.

This would be the offset to giving up the right to a jury trial.

We have adopted an approach of reverting back to the right to jury trial if the elaborate system does not work. I think the system is realistically calculated to be successful.

Following the meetings in Judge Becker's chambers last August, there have been some 32 sessions held in my conference room, presided over by Judge Becker with myself in attendance for most of those meetings.

To repeat, a lot of progress has been made. It is my hope to be able to circulate a draft bill as a vehicle for discussion. I call it a discussion draft bill. My hope is that it could be circulated before the end of the week, but it is not possible to make any firm commitments because candidly every time we come upon a sequence of negotiations, other problems arise. If there is any way to reconcile them and to have a consensus before going into print, we are trying to do that.

It had been my hope last year, as we worked through the process, to have a bill by consensus. Senator FRIST and the then-Democratic leader, Senator DASCHLE, did a great deal of work and exchanged letters. At one point we thought we were on the verge of a consensus, but it did not work out.

In order to pass a bill, as we all know, in the last stages of a legislative session, it has to be by consensus because any single Senator can hold up a bill in its final stages. That consensus was not possible, and although we were very close on many issues, there are some issues where there is still some difference of opinion. The differences have been narrowed, and we have come a long way.

It is my hope to circulate a draft discussion bill, and there likely will still be some blanks. We will fill in as many of the blanks as we can, and then Judge Becker and I will be available to meet with the stakeholders in my conference room on Monday to talk about the areas where there has been agreement, to talk about the specifics on a draft discussion bill, and to talk about the areas where there are still differences as to how we might bridge that gap.

I have worked with Senator LEAHY. I commend him for his work with Chairman HATCH on this matter. We have talked about having a hearing next Tuesday on January 11. I am not unaware of the fact that it is not a convenient time, but Senator LEAHY will be present and I think there will be some other Senators present. We have given several weeks notice. We are aware it is a difficult time, but there are many hearings held in the Senate with just a few Senators, the chairman, and the ranking member present. I think it is important to move ahead.

At that time, it is the expectation that we will hear testimony from Judge Becker to lay out the draft discussion bill and then to hear testimony from the stakeholders identifying the parts of the bill which they choose to comment about where there are agreements or where there are disagreements. We know from experience that the early part of a legislative session is necessarily slow, but that early on in February, certainly in March, sometimes by mid-February, we begin to move ahead and the calendar begins to be crowded.

There are many items which the President has identified as legislative priorities. We will have confirmation hearings starting with White House Counsel Gonzales on Thursday and there will be other confirmation hearings. So it is my hope to be able to present a bill through markup at a very early date. Whether that can be done in late January or early February, frankly, remains to be seen.

When we marked up this bill the last Thursday of July of 2003, it was a very long markup. It lasted more than 12 hours, as the distinguished Presiding Officer will recollect. In a sense, we had the longest markup in the history of the Senate with the sessions in Judge Becker's chambers and the 32 sessions in my conference room. I thought it would be useful to briefly describe where we have been and in a sense where we are going so our colleagues will know what the status is as fully as it can be described without actually circulating a draft discussion of the bill, which will be done at the earliest possible time.

I thank the Chair. I commend him for his lonely vigil. This was a thriving Chamber three hours ago with standing room only and suddenly the business of the Senate is not quite so pressing with only the Presiding Officer and this Senator present. So in the absence of any other Senator, I suggest the absence of a quorum.

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