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Fairness in Asbestos Injurty Resolution Act of 2005

Location: Washington, DC

FAIRNESS IN ASBESTOS INJURY RESOLUTION ACT OF 2005 -- (Senate - February 08, 2006)


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

Mr. DURBIN. I will be happy to yield.

Mr. SPECTER. Is the Senator from Illinois aware of the fact that the Judiciary Committee, on which he serves, issued a subpoena and has the names of the companies that are going to be contributing to the trust fund.

Mr. DURBIN. I know the chairman made that statement yesterday, and I am hoping he will share that information.

Mr. SPECTER. Mr. President, I am advised by staff, since I posed the question, in a note to the effect that Senator Durbin's staff did come to look at the list. Is the Senator from Illinois aware of that?

Mr. DURBIN. May I respond to the chairman by stating that I understand this information on the list has been characterized as confidential information before the committee and cannot be shared publicly.

Mr. SPECTER. The pending question--and I will be glad to answer his--is, Does the Senator from Illinois know that his staff came to look at the list?

Mr. DURBIN. I am aware of the fact they reviewed it, but I am also aware of the fact this has not been made public as part of this conversation and part of this record.

Mr. SPECTER. Mr. President, with all due respect, the issue isn't whether it has been made public, the issue is whether it is in existence, and the issue beyond being in existence is whether it is available to Members who have to vote on the bill. So when the Senator from Illinois asserts that you don't know who is making contributions, it is simply not so.

The issue of confidentiality is true. It has been raised by the companies because they are concerned that if it is disclosed how much they have contributed or are proposing to contribute that they may be targets for more litigation.

I don't wish to interrupt the Senator from Illinois further. I simply wish to make the point that he is wrong when he says we don't know who is going to contribute the money, and his own staffer has taken a look at the list.

Mr. DURBIN. Let me respond, if I may. Why is this cloaked in secrecy? Why is this a secret conversation? How can we have confidence that the $140 billion figure has any validity? How can we have confidence that the businesses that will be called on are going to be able to contribute to this fund if this is cloaked in secrecy and confidentiality? Most of these lawsuits are open, public record. It is hard for me to imagine that a business is going to be sued because someone has identified them as a potential contributor to this trust fund.

Nevertheless, if we are expected to replace the court system in America with this new trust fund system, how can we do it with any confidence if all the information is not on the table? Why the secrecy? What are we concealing? What we are concealing, frankly, is the most controversial elements of this bill: a question of whether $140 billion will actually pay the victims--and I doubt that it will--a question of whether companies are going to be asked to pay into this trust fund who shouldn't be asked to pay into the trust fund and, subsequently, may be forced into bankruptcy, closing their doors because of it. These are questions of great moment. To say a staff person can have access to secret files in an office hardly gives any comfort in the midst of a public debate about an issue of this magnitude.

Mr. SPECTER. Mr. President, will the Senator from Illinois yield further?

Mr. DURBIN. I will yield for a question.

Mr. SPECTER. Is the Senator from Illinois aware, putting it in the form of a question, that he has made a shift in positions, first asserting that we don't know who is going to contribute the money, then finding out that we do know who is going to contribute the money, that, in fact, his staffer has looked at that list, and he is now raising a different issue as to what is the need for secrecy?

That is not the point about which I raised the question. When he talks about litigation, there are many confidential matters in litigation which remain confidential on a showing of cause. So my question to the Senator from Illinois is, does he realize that he has shifted his position from objecting to the status where nobody knows who is contributing, changing to why the reason for the secrecy?

Mr. DURBIN. I say to the Senator from


Mr. SPECTER. As a couple of experienced trial lawyers and debaters, or at least he is an experienced trial lawyer and debater.

Mr. DURBIN. As the Senator from Pennsylvania is as well. In response, unless and until we put this information out to be reviewed in a comprehensive and honest way, I don't believe we can stand before the American people and say this is a good replacement for the courts of America.

Let me tell the Senator what happened. A member of my staff was invited to the Senator's office to view the secret list. He was warned ahead of time not to take any notes, not to make any copies, and not to disclose the nature and substance of the secret list because they were treated as committee confidential. My staffer went to view the list and reported to me the information wasn't very helpful in answering the most basic questions about the companies, their liability, and, of course, the impact on each company and whether they can survive the contributions to the trust fund.

Under the committee confidential rule the chairman has imposed on all staff members reviewing this list, I am not sure I can say much more about this secret list on the floor, but I will say this is a highly unusual process to have secret lists, secret information, and confidentiality, when we are literally talking about people's lives and health. I don't think the Senator can come forward and meet his burden of proof, to go back to the language of trial lawyers, that we should replace the court system in America based on secret lists kept in his office. That strikes me as a far cry from the kind of public debate which we should invite for this bill.

Mr. SPECTER. Mr. President, will the Senator yield further for a question?

Mr. DURBIN. I have been more than happy to yield, and I will continue to yield.

Mr. SPECTER. How can the Senator call it a secret list when it is available for his inspection?

Mr. DURBIN. I say to the Senator, when he makes it available for the inspection of all Members and the American people, it is no longer a secret list. Mr. President, is the Senator prepared to do that? That is my question, without yielding the floor to the Senator.

Mr. SPECTER. I will review the matter with the view to see if we can make it public. I am open to any modification which is reasonable. I am not bound by any protocol, and I will go back to the providers of the list to see if it can be made available. But when the Senator from Illinois asserts that it is secret, he is simply wrong. It is not secret. He can look at it. I think he raises a good point when he says that nobody can make a copy of it.

Offhand, on horseback, on one foot, I think staffers should be able to make a copy of it. Take the copy and show it to the Senator. I think that is reasonable, with the agreement of the staffer and the Senator that if we decide to retain the confidentiality, they will respect that. I trust Senator Durbin and I trust his staff to honor confidentiality if we stick with it.

As I say, I will review that as well. But Senator Durbin has to make a decision. I am sure Senator Durbin has an open mind on this question. Now that I reflect on it, I am not so sure he does have an open mind on this question, and he doesn't have to have an open mind on this question. I think he raises a good point when he says we ought to know who contributes the money. I raised hell to get the information and finally had to raise a subpoena to get the information. We have it so that it is available for those who have to make a decision.

When he carries the point further that he would like to see it made public, if I can accommodate that, I will.

Mr. DURBIN. I was happy to yield again to the Senator, whom I respect very much. I tell him, for the record, on May 25 of last year, we sent a letter to him about Goldman Sachs, asking that we have some information about the $140 billion figure, how it was arrived at, and how it will be paid for. So this is not the first time this issue has come up.

It is curious to me that we are writing a bill that is going to change the laws of all the States of America, and if we are going to close those courtrooms across America. Yet the Senator from Pennsylvania had to issue a subpoena to obtain a list of the names of the companies that are going to contribute to the trust fund. This is a very strange process.

Usually, legislation emanates from within Congress and affects the outside world. It appears that the secret list at issue emanated from the outside and whoever created it wasn't anxious to share it. So if there is skepticism by those of us critical of the bill, I think there is good reason.

We never received a reply to our May letter of last year. It is an indication to me that this whole process has been very unusual and very different from any process I have seen.

Somewhere, someone has come up with a number as to how much we need to compensate these victims, and someone has come up with a source on how that number will be arrived at, and the chairman had to go to the lengths of subpoenaing the information that was the basis for this bill that will affect hundreds of thousands of Americans and their lives.

Mr. SPECTER. Mr. President, will the Senator will yield further?

Mr. DURBIN. I will be happy to yield.

Mr. SPECTER. When he says I haven't responded to his letter, I have responded to his letter by getting him the information. The Senator from Illinois is diligent, resourceful, and raises lots of questions. I would challenge him to say I haven't responded to all of them.

Mr. DURBIN. I say to the chairman, he is the

most responsive Member I can think of, and I thank him for his service and friendship. I have shared with him my concerns on this issue, and he has gone so far as to issue a subpoena.

The point I wanted to make to the chairman is raising this issue was not sua sponte. I started asking this question long ago as to why we couldn't get the most fundamental----

Mr. SPECTER. Parliamentary inquiry: Does sua sponte apply to this discussion? I withdraw the parliamentary inquiry.

When the Senator from Illinois says the chairman had to issue a subpoena, I consider it a compliment. I have had to deal with stakeholders on all sides who have been recalcitrant. We haven't--I, we, Senator Leahy and I--haven't left any stone unturned. If people who want this bill and are obligated to provide money won't give the information I want, if they are for the bill and they are for the position I am sponsoring, I am going to get tough about it. I am going to get a subpoena so that Senator Durbin knows what is going on, and I think the American people, through their elected representatives, will know what is going on.

Does the Senator want me to yield? If I can get wider distribution, I will.


Mr. SPECTER. Madam President, will the Senator from Illinois yield for a question?

Mr. DURBIN. After I finish my sentence, I will yield. I concede this bill is a clash of special-interest titans on both sides. I think proponents of the bill have invested a lot more in its passage than those who oppose it. Maybe we will never know the true figures, but the interesting thing is that the first bill of this Senate session is not a bill to address the Medicare prescription drug crisis, it is not a bill to provide affordable, accessible health care to Americans, it is not a bill to deal with the energy crisis and the heating bills that are killing us in the Midwest and the Northeast, it is not a bill to deal with pension security for workers who are losing a lifetime of pension investment to a merger or a bankruptcy or corporate sleight of hand. It is a bill that is brought by lobby groups and special interests that have invested tens of millions of dollars trying to force this issue and bring this matter before us on the Senate floor.

Mr. SPECTER. Madam President, parliamentary inquiry: Has the Senator from Illinois finished that sentence?

Mr. DURBIN. I just finished. That was a period.

Mr. SPECTER. There are a lot of semicolons in that sentence, then.

Mr. DURBIN. I am not yielding the floor unless the Senator wishes to ask a question. Then I will be happy to yield.

Mr. SPECTER. There is a lot of competition for the floor. There are three of us on the floor. A lot of competition for it.

When the Senator from Illinois talks about special interest groups, there are others involved in this legislation and they are the victims. They are thousands, tens of thousands of victims who are suffering deadly diseases. Those are the people about whom this Senator is concerned.

Yesterday I put into the RECORD an article from the front page of the Hill about $3 million being spent by lobbyists to defeat this bill. Today the New York Times has a detailed story about how much money is being spent to defeat this bill.

It is true there are some who want this bill--the manufacturers and some insurance companies. But the people who really want this bill are the victims.

I take just a little umbrage at one sentence, one statement made by the Senator from Illinois when he says that because I have to subpoena material, it raises a question about who is writing the bill, that somebody else is writing the bill.

Let me assure you, Madam President, and anybody who may be watching on C-SPAN--if we had anybody, we lost them a long time ago--no special interest has written this bill. It is a non sequitur. I have to respond in some way to sua sponte. It is a non sequitur to say that because it was necessary to subpoena information that somebody else wrote the bill.

Mr. DURBIN. Without yielding the floor, would the Senator please tell us what Government agency he subpoenaed for the information to produce the secret list?

Mr. SPECTER. I will be glad to respond. I didn't subpoena any governmental agency. We subpoenaed the companies who were obligated to provide the money.

Mr. DURBIN. Without yielding the floor, would the Senator please state for the RECORD the names of the nongovernment agencies, private companies he had to subpoena to understand the underlying basis for this trust fund and how $140 billion was arrived at?

Mr. SPECTER. I didn't have to subpoena anybody to understand the underlying basis for this bill. This is my bill. I understood it when I thought it through and when I wrote it. Will I provide the names of those who are to be contributors? I do not have them at my disposal, and I certainly don't have them in my mind. But the staffer from the Senator from Illinois has already seen them and I would be glad to personally take the Senator from Illinois to look at the list.

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