February 8, 2006

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. DURBIN. Mr. President, pending before the Senate is S. 852, which is a bill that has been written to address what has become a scourge in America: asbestos-related illness and death.

We understand that as early as 1934, some of the companies that were making products out of asbestos came to realize there was a danger, that some of the employees working around this asbestos ended up developing lung problems and some of them were fatal.

Rather than protect the employees or disclose the danger, some of these companies did nothing, said nothing. In fact, there is ample evidence that they covered it up. They didn't want their employees to know the dangerous situation they were in. They didn't want to end up with liability for their employees' illness and death, and they didn't want to lose their profitability. So this secret was kept for a long time, from the 1930s onward.

Through World War II, when men and women serving this country were busy building the ships and other vehicles necessary for our troops, they were exposed to asbestos in many different forms.

Asbestos became a very common element that was used in construction and a lot of different products, from brake linings to home insulation. It was considered to be a valuable resource that was fireproof and light in weight. It was somewhat revolutionary. But during this entire period of time, the development of asbestos product, the asbestos itself, and the fibers that were floating in the air, breathed in by workers and bystanders and innocent people, were creating mini-timebombs in the lungs of the people who were exposed. They didn't know it. They didn't sign up for it. They were not warned. They only learned much later in life that they had some exposure and it ended up killing them.

I wish the story of asbestos had started and ended long ago, but it continues to this day. People still turn up with this disease, mesothelioma, the most fatal form of asbestos exposure, similar to lung cancer, but much more virulent in terms of its devastation on the human body.

The persons diagnosed with mesothelioma have limited time to live. Some of them go through harrowing, extraordinary surgical procedures to buy the possibility of a few more months of life. It can strike anybody at any time, young and old alike, men and women alike. It can strike someone in your family, Mr. President. It can strike a friend. Asbestosis, which is a form of it, is a disease which limits your activities and limits your lifespan. Mesothelioma is a killer.

So hundreds of thousands of Americans have come to learn, because of exposure to this product, that they are sick and facing huge medical bills and the prospect of illnesses of great duration or death, and they ask who is responsible.

Occasionally, they will find an employer that used asbestos. In some cases, they will find a product they purchased that ended up creating asbestos exposure, and they try to seek compensation in court.
What they are doing is very common in America. People who are guilty of wrongdoing are held accountable in court. Drunken drivers are held accountable in court. People who sell defective products are held accountable in court. People who strike other people and cause injury are held accountable in court.

So over the years these hundreds of thousands, maybe millions, of people have asked for their day in court, asked for a judge or jury to decide whether they are entitled to compensation for medical bills, for lost wages, for the family they will leave behind if they are going to die.

It is not unusual. These are the types of lawsuits filed every day in America, and we trust our system. The system says that ultimately a judge and a jury will decide what is fair and what is right. A judge and a jury of the peers of the person who is in the courtroom will decide if compensation is something that should be given. In many cases, it is clear, and large verdicts are given; in some cases, the answers are no.

So over the years, as this asbestos exposure has become better known, many of the companies that were deeply involved in making profits with asbestos have faced huge lawsuits from numerous people who have been injured. Some of these companies, because of the lawsuits and other circumstances, have gone out of business.

Johns Manville was a big name 30 years ago in America. Now it is a trust fund created to pay asbestos victims. Johns Manville made its fortune, in some part, by using asbestos. But by using asbestos and creating asbestos products, they endangered and harmed a lot of people. Courts across America said: Johns Manville, you are responsible; you have to pay. That has happened over and over.

There are many corporations that wonder if they, too, will face many lawsuits. Some already have; others have not. The victims keep coming because so many people were affected by this product. And because of the concern of some businesses as to their exposure and liability, they started coming to Congress over 20 years ago, saying we have to close the courthouse door, we can't let these people come into the courtrooms anymore because they keep winning. They are winning because no one willingly exposed themselves to asbestos. They were innocent victims and their lives were changed dramatically.

So these businesses came to Congress and said: You have to take these cases out of the courtroom; you have to create some other way to deal with it.

We have been talking about it for a long time here on Capitol Hill. Finally, this week, S. 852 has come to the Senate floor in an attempt to create a system that will replace the courtroom in America. This bill creates a trust fund that is supposed to pay the victims.

Think about these victims for a moment. There are some, when you think about them, you might be surprised to know why they died. One of them we talked about earlier today was a great colleague of mine from the State of Minnesota, Bruce Vento. What a terrific guy. I believe he was formerly mayor of St. Paul, MN. He represented St. Paul in the House of Representatives. Bruce was a terrific fellow, an outdoorsman, physically fit. I would see him in the House gym every morning. His locker was down from mine.

Then came the day when they diagnosed him with mesothelioma, and that was, sadly, a death sentence. At some point in his life, something he had done had exposed him to asbestos. It was a tough situation. His family tried to face it, get the best of medical care, but it was hopeless. As a consequence, Bruce passed away.

Here is someone certainly the older people in the audience will recognize, actor Steve McQueen. He died in 1980

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from mesothelioma. Some exposure at some point in his life led to this deadly disease. This man who was so handsome, daring, and courageous in all the movies could not fight back when he was struck with mesothelioma.

Recently, singer Warren Zevon--I recall when he did his last CD. It was a big hit. He made that CD realizing it was the last one he would ever record. At some point in his life, he was exposed to asbestos. He has died.

Admiral Elmo Zumwalt, most people remember him, his service to America in the U.S. Navy during Vietnam. He is a well-known figure, spokesman. He, too, was exposed to asbestos at some point in his life and died of mesothelioma.

These are some of the big names who died of mesothelioma, but there are others.

Patricia Corona is a mesothelioma victim. I wish to tell you a little bit about her story.

Patricia, 72 years old, was diagnosed with malignant mesothelioma in the spring of 2001. Her exposure began when she was a young woman in the course of her employment as a sales manager at various automotive dealerships. They used asbestos brake linings, pads, and clutches. She was a sales manager. She frequently walked around the service area. Unknowingly, she was exposing herself to deadly asbestos fibers.

Mrs. Corona and her husband Carl, shown in this picture, have two children. After leaving the automotive dealership, Mrs. Corona decided to stay at home with her kids. While at home, she led an active life. She remodeled her entire house by adding on, painting, putting up drywall, putting in new floors, among other things, just the kind of ambitious, energetic, and talented woman you want to have in your own home. Unbeknownst to her, many of the products she used in home construction contained asbestos. Again she was exposed, unknowingly, to these deadly asbestos fibers.

When Carl and Patricia's kids were grown up, Mrs. Corona went back to work as a sales manager, and eventually bought her own custard stand. After quitting her sales manager job and selling the custard stand, she stayed home to take care of her handicapped brother.

While taking care of her brother, she did some small remodeling. In the spring of 2001, Mrs. Corona's active life came to a screeching halt. She was stricken with shortness of breath and extreme chest pains. She was diagnosed with mesothelioma in May 2001. Mrs. Corona's life, along with her husband's, changed dramatically due to the effects of the disease.
Mrs. Corona is obviously restricted in her activities and realizes that in a short period of time, she will succumb to this disease. Patricia Corona of Glen Ellyn, IL, another asbestos victim.

This is businessman John Rackow. John is from Lake Zurich, IL, grew up in Chicago and moved to the suburbs. His father Ron owned a plastics factory, and Jack helped him run it. He married and raised three kids. Along the way, he worked for a lot of different businesses. He worked in the property development business. He was athletic and active, but he recently noticed when he went out running, he would become short of breath. He was an avid golfer. Jack also noticed his golf game wasn't what it used to be. He went to see a doctor. Some routine tests revealed a mass in his body. When the biopsy was done, the doctor diagnosed him with mesothelioma.

Jack didn't believe it. He went to all kinds of specialists. He took medication to manage the pain. He continued to play golf and even entered a golf tournament. However, after a few days, he was flat on his back in the hospital. He became weaker by the day, and in less than 2 weeks from the time he entered the hospital, he passed away at the age of 64. Jack Rackow is survived by his children and grandchildren. He is another asbestos victim.

The last one I will talk about from Illinois is policeman Donald Brozych from Tinley Park. He studied for the priesthood. He eventually decided to become a police officer. While he was in school, he worked in construction. He was handy at home and worked on his own car.
After he retired, Don and his wife enjoyed traveling and spending time with their friends, but he found himself worn out all the time. During a physical exam, the doctors found some abnormalities, did some tests, and diagnosed him with malignant mesothelioma.

After diagnosis, Don has gone through numerous treatments--chemotherapy, extensive surgery. He even went into an experimental program. He lost his hair. As of the time of this writing, he has been in treatment for over 2 years. He says each day is a blessing and he doesn't know what to expect in the future. He and his wife Donna pray for a future.
When was he exposed? He doesn't know. He looks back at his life and tries to figure out was it while he was working on construction, trying to earn his way through school? Was it while he was working on his car, doing home repairs? There were so many common experiences he was involved in, never knowing he was exposed to asbestos.

I tell you these stories because people such as those I just described have cases pending in courts across America today. They are people whose lives have been shortened and whose lives have been changed dramatically because of exposure to asbestos. They want to know if they can find the party responsible for their illness, whether that party will pay to their family the cost of medical bills and do something to keep their family together when they are gone. It is not an unreasonable request, and it is a request which many times leads to a jury verdict or a judge finding, yes, they are entitled to recover.

This bill that we have before us, S. 852, is a bill which will close the courthouse doors to every one of those people. If they don't have a case being argued before a judge in trial, when this bill is signed their case will be closed. No matter how long they have worked on it, no matter how much effort they put into bringing together medical bills, bringing together all the evidence of where they worked and how they could have been exposed--despite all that effort, it is over.

Where do they turn? They will turn to this trust fund, a trust fund that has been created in this bill. How much money are we going to have in this trust fund to take care of all these asbestos victims for the next 50 years? The amount, according to the chairman and the sponsor of the bill, is $140 billion.

Repeatedly today and on previous occasions, Chairman Specter has been asked: Where did you come up with the number $140 billion? By what method did you calculate the number of potential victims, the amount of compensation, to come up with this number of $140 billion? Without exception, the chairman of the committee and lead sponsor of the bill, Senator Specter, has said he cannot explain that calculation. He cannot tell us where $140 billion came from. At best, he says, it was a figure that he heard from Senator Frist and Senator Daschle a year or two ago. That doesn't sound like a very valid starting point to establish the amount of money you need in a trust fund to take care of some of the victims that we have talked about.

To close the courthouse door to Donald Borzych and his family, and to say to them you cannot pursue your lawsuit, you must turn to this trust fund, the starting point should be that the trust fund has enough money to take care of the victims. But, sadly, there is no way of establishing that.

In fact, today Senator Kent Conrad, who is a colleague of mine from the State of North Dakota and is the Democratic spokesman on the Senate Budget Committee, made a presentation to our caucus lunch. By best estimate, $140 billion is grossly inadequate, totally unfair in terms of what it will cover in the future. They have turned to a variety of different groups and said: What would it really cost? The Congressional Budget Office, outside consulting groups--each and every one of them says $140 billion is not enough.

Senator Specter was asked yesterday: What happens if this trust fund runs out of money? What if claims of people like Donald Borzych, Patricia Corona, are still out there, or people just like them, when the fund runs out of money? Senator Specter was very candid. He said we will just have to cut back on the amount we have to pay the victims. Think of that for a moment. Facing deadly mesothelioma or asbestosis, losing your day in court for just

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compensation for your injuries, you turn to a trust fund that fails you when you need it, and you receive a token amount for having given up your life, having given up the quality of your life, having given up all that time with your family.

Over the last year or two I frequently have met with the families of these mesothelioma asbestos disease cases. Some of them are still heartbroken because in many cases that father and that husband was taken from them in a short period of time. In other cases they fought valiantly, with great pain and sacrifice, to try to beat this disease--and they failed. Just last week, in a corridor upstairs, a family came to see me. A great young little fellow there who looked like he was about 8 years old--he had a white shirt on and a bow tie--he was coming to the U.S. Capitol. He talked about losing his grandfather. He said he was glad he lived long enough to at least know him, but he lost him to asbestos.

I thought to myself at that moment: If you are going to take that family out of court, if you are going to close the courthouse door to their effort to recover at least for the medical expenses and the injuries that have been suffered, shouldn't you put them in a system that will work, a system that you can say with some confidence will compensate them?

We cannot say this about this bill--$140 billion--and no one can come to this floor and explain how that $140 billion is going to be adequate. It turns out that as soon as you close the courthouse door, if this bill passes, and you open up this trust fund, there will be a flood of people rushing to it. We know that. Some of them are on their last leg, literally, trying to get some compensation. So will there be enough money in the trust fund to get started? The answer is no, not nearly enough.

What is the trust fund going to do? It is going to turn around and borrow enough money to start to pay them over an extended period of time. And as the trust fund borrows money, it has to pay interest for the money it borrows. The best estimates are that out of $140 billion, more than a third of it is going to be paid in interest because of borrowing to start the trust fund in its earliest years. So there will not even be $100 billion to deal with all of these cases.

Where will the money come from, $140 billion? That is another good story. I yielded today several times to Senator Specter. We talked about this. It is still not clear what happened, but some outside group--whether a consulting group or private corporation, I don't know--was called on to figure out how you create $140 billion in a trust fund. How do you turn to businesses and insurance companies and have them pay that much money? What standards do you use? How many companies are affected? Which companies will be responsible? Which will not be?
All the time we were considering this bill in committee, many of us were asking: How did you come up with $140 billion, and who is going to pay it? We never could get an answer. In May of last year I wrote a letter to the chairman and I asked: Can you tell us the answers to those questions? This was 8 months ago. I never received a reply.

Over time, the chairman said he would provide the information, then announced that he had to issue a subpoena to get the information to explain his own bill--subpoena. Today he acknowledged it. They subpoenaed the information--not from a Government agency but from some private business, private corporation that was writing this bill, or at least writing the means by which they would fund the bill. They subpoenaed the information. So, obviously, we believed that in the interest of a real public debate that information should be public. But it is not. Somehow or another it has been characterized and classified as confidential information so that any person--the family of Donald Borzych, for example--who wants to know how this trust fund will ever be funded can't even see this. It is a secret list, a secret list of the companies that are going to fund the trust fund to $140 billion.

Is this how we write laws in America? Do we go to private companies to write the laws? And then, when you ask them to give you the information as the basis for the law, you have to subpoena it? Demand it from them? Is that what the American people expect? I don't think so.

I think they expect people, public officials and our staff, to put their best efforts into writing a bill that is not written by special interest groups, is not written by private companies. In this case, this bill clearly was, in many respects.

There are big winners in this bill. I wish I could go through the bill with some certainty and tell you what is in it, but I cannot. Standing here today, facing the prospects of voting on the bill tomorrow, I cannot tell you what we will be voting on. A lot of people think Senators do not even try. The fact is, we were given a bill, this bill here, S. 852. That is the one that was passed around here. It is on everybody's desk. But it turns out this is not the bill at all. Listen to what was printed today in Congress Daily, which is a publication on Capitol Hill:

Senate Judiciary Chairman Specter is drafting a managers' amendment to the asbestos litigation bill with more than 40 new provisions in hopes of garnering enough votes to pass the legislation. Senator Specter said in a news conference, ``There is so much of this bill that is a work in progress.''

I can tell you, that means that neither this Senator nor, frankly, any Senator other than perhaps the chairman, has a clue what we will be voting on tomorrow. While the fate and lives of millions of Americans who have been exposed to asbestos hang in the balance, we are being asked to vote for a bill that will be changed so dramatically in just a few hours that no one knows what is in it. No one knows what is in it. This is what gives Congress a bad name--for us to be moving on a bill of this importance and this magnitude without knowledge as to what is included.

What is interesting is that the White House usually comments on these bills. They kind of send us a statement of administration policy, as to whether they support a bill or oppose it. What I find interesting is we received an interesting statement from the White House on the administration's approach to it. I might say, before I read it, that they could not possibly know what is in this bill because no one else knows. It is going to change overnight. A managers' amendment will bring 40 new provisions in the bill. But nevertheless, the administration, the Executive Office of the President, February 8, 2006, Statement of Administration Policy on S. 852:

The administration supports Senate passage of S. 852.

He goes on to say asbestos related litigation has clogged up courts, deprived those with injuries of meaningful remedies, costing tens of thousands of jobs, and so forth.

Then they come down to the second paragraph in this very brief statement of policy in which they say:

Although the administration has serious concerns about certain provisions of the bill, the administration looks forward to working with Congress in order to strengthen and improve this important legislation before it is presented to the President for his signature.

Serious concerns--well, they should have serious concerns because they have not seen the bill. Forty new provisions are going to be added tonight that no one in the White House could possibly have read before they gave this reservation of an endorsement.

Here we are in a situation with a trust fund in an amount that cannot be explained, coming from companies that are on a secret list that cannot be disclosed, as part of a bill that does not exist.

If you were out there with a member of your family exposed to asbestos, I think you would have justifiable concerns that what the Senate is about to do is nothing short of a disaster--a disaster for so many victims across the United States.

Several things ought to be said about the problems that we face with this bill. I could talk to you about the difficulties in the bill. One of them relates to Libby, MT. Libby, MT, could have been ground zero for asbestos contamination. W.R. Grace & Company was mining asbestos and their workers were being exposed to dangers on a daily basis. This company is now gone, but the lawsuits and the injuries and the deaths continue from Libby, MT.

I can recall when Peter Grace, the head of W.R. Grace, was brought to Washington during the Reagan administration to tell us how to run the Government. Peter Grace was the head of a

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commission to end waste and fraud and abuse in Government.
It turns out that Peter Grace's company, W.R. Grace, had been guilty of fraud on its workers for decades, concealing the dangers of asbestos. Part of this bill says we ought to give these Libby, MT, workers good treatment. I support it. I think it is a good thing to do.

But only Libby, MT. It turns out across the United States of America there are smaller examples of exactly the same thing in State after State. There are over 25 different sites around America--some in my own home State of Illinois, some in Texas, some in Louisiana, some in New York--that are just like Libby, MT. But when the chairman wrote the bill, special consideration was only given to one place in America--one place. Why? Why would you single out one place in America to give special treatment under the bill? Sadly, that is exactly what happened. And because it happened, we are going to be facing an amendment, which I believe Senator Graham will offer, to make sure that there is fair treatment for many others who are going to be involved.

I hope the Senate will support it. As I said, I am not against Libby, MT, receiving their fair share. But who were the winners and losers when it gets right down to it? The list is pretty interesting.

I talked earlier about U.S. Gypsum, a company based in Illinois. They have been sued by lots of people exposed to asbestos from their products. U.S. Gypsum made an announcement last week as follows:

We believe that we have about $4 billion in damages that we have to pay to victims of asbestos exposure from our products.

Then they went on to say that they were going to pay it, unless this bill passes. If this bill passes, U.S. Gypsum will be required to pay into the trust fund $900 million.

Think about that for a moment. One company benefits to the tune of $3.1 billion--U.S. Gypsum--because of this bill.

When it comes to the question about who wants this bill, you can bet that company wants this bill.

Honeywell is another company--estimated future asbestos payments, $2.75 billion.

How much will they pay into this trust fund? Somewhere in the range of $300 million or $400 million, about 14 percent or 15 percent of what they would otherwise pay in court. So now Honeywell wants this bill.

Dow Chemical, estimated future asbestos payments up to $2.2 billion. What is the amount of money they will pay into the asbestos trust fund? Somewhere in the range of $300 million. So they are going to do quite well.

But there are other companies that will be forced to pay into this trust fund with exactly the opposite results.

A.W. Chester, a company that has an estimated future asbestos payment in the court system, zero; never been sued, never paid. They will have to pay annually $16.5 million into this trust fund; never been sued, never paid a penny.

They have said, quite frankly--this company has been around for a long time--they are going out of business.

The same thing is true with Hopeman Brothers, no exposure; $16.5 million a year into the trust fund.

National Service Industries, estimated future asbestos payments, $11 million. They have to pay $16.5 million a year into this trust fund.

Is it any wonder that many of us have asked to come up with a list of companies that are going to be winning and losing with this asbestos bill? There are going to be some big, huge winners, and they have been working night and day to get this passed.

There was a study released by Public Citizens Congress Watch in May 2005, entitled, ``Federal Asbestos Legislation: The Winners Are.''

It looked at lobbying efforts behind this bill. They have been going for a long time.

I mentioned, in an earlier statement, that over 20 years ago people were talking about legislation. There has been a real intensity in that lobbying effort over the last several years.

This public citizen organization concludes the big winners will be an unknown number of Fortune 500 companies and at least 10 asbestos makers who have filed for bankruptcy.

It concludes: Some of the Nation's largest and savviest investment firms have positioned themselves to score big if the bill passes.

Everybody following this debate--especially Americans fed up with the way Washington works against the interests of the mainstream and for the interests of Wall Street--I hope they will go to the Public Citizen Web site, www.Citizen.org, and read it for yourselves. You can read their report and analysis of the lobbying effort. And you will find the money which has been spent--estimates by some are as high as $140 million--in lobbying to get this bill passed.

It sounds like a huge sum of money, until you look at one company that could win $3.1 billion if this bill passes. It means a lot to them. You can understand why that company hired 40 lobbyists to come and beg us to vote for this bill.

But I don't worry so much about the companies. I want them to stay in business, if they can. I worry most about the victims. I worry about a system that would not pay those victims.

Is this the best we can do in America? Is this what fairness has come to? This bill is called the FAIR Act. Sadly, I think it is unfair. It is unfair to the hundreds of thousands of people who, through no fault of their own, have been exposed.

Luckily, we have a lot of supporters who have come and talked to us about their support for this legislation opposition. They include many businesses that will be shortchanged, as I mentioned earlier, which include some insurance companies that feel this is fundamentally unfair. They include asbestos victims groups united to oppose this legislation and a score of major labor unions across America representing workers who may have been exposed and may need their day in court.

I am afraid that when you add up this lobbying effort that I have in my hand against the $140 million to pass this legislation, this poor group just didn't have the firepower.

That is why this legislation is on the floor today and why it will be considered very soon.

Once again, we are going to say to America, We don't trust the courts in America, we don't trust the judge, we don't trust the juries. We trust the special interest groups pushing legislation that takes the power away from the individual to have their day in court, to have their neighbors decide what they are entitled to.

Some who want to put their trust in that operation should pause and reflect.

This is the same gang who came up with the Medicare prescription drug benefit program that has become an unsalvageable fiasco across America; again, that program driven by the pharmaceutical companies, this legislation driven by a handful of corporations that will do extremely well.

I am going to close by saying that I can't think of a more important bill to be considered since I have been in Congress. I can't think of a bill that is going to have more impact on ordinary people.

It is unfortunate that special interest groups will dominate this debate. Some people say: Aren't there special interest groups on both sides? I will concede that point; business groups on both sides, trial lawyers on one side, major corporations on the other side, unions on one side. This is a clash of the special interest titans.

That is what this bill is.

The obvious question is: Why are we doing this? If you ask the American people to pick any city in America, whether it is in Nevada or Illinois, you pick it, go on the street and ask: What is the first bill the Senate should take up this year? My guess is that many of them would say: I hope it is ethics, with that culture of corruption in Washington. You had better clean that mess up before you do anything else. Someone else may say: After I sat down with my mother and tried to do that prescription drug form, I hope you will change that. Someone else might say: I hope you will do something about the cost of health insurance. That is a real issue facing businesses, families, and individuals.

In my part of the world, they would say: Have you seen your heating bill at your home lately? It is double, Senator, if you didn't notice. What are you doing about energy in this country?

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Some workers who come by my office ask: What are you going to do to protect pensions which we have worked a lifetime for?

There is a long list of things we could do not driven by special interest groups. No. The first item on the agenda for the Senate is the asbestos bill, the clash of the special interest titans.

That is where we are going to spend our time.

When it is all over, I am afraid those who couldn't afford lobbyists, couldn't afford the people who stand outside the corridors with signals, hand signals, with a wink and a nod on how we are supposed to vote, those are the ones who are going to be the losers.

I yield the floor. I suggest the absence of a quorum.

The PRESIDING OFFICER (Mr. Ensign). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.

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

The PRESIDING OFFICER (Mr. DeMint). Without objection, it is so ordered.