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Asbestos Bill Survives Procedural Challenges; Senate Passage Looms

by Steven Brostoff

Controversial legislation that would create a $140 billion trust fund to resolve asbestos-related claims out of court survived two procedural challenges last week and may be headed for Senate passage despite strong opposition from many different quarters.

“I’ve changed my view on this,” said one insurance industry lobbyist who asked not to be identified. “I thought it would die in the Senate but now I think it will pass the Senate. But I think that will be its high-water mark.”

The two procedural challenges involved a possible filibuster and an amendment to strip the trust fund language from the legislation, S. 852, and substitute a clean medical criteria approach.

The first procedural issue occurred on Tuesday, Feb. 7, when the Senate considered a cloture motion to cut off any possible filibuster. Prior to the vote, there were questions about whether the supporters of S. 852 could get the 60 votes needed to invoke cloture. But surprisingly, the cloture motion prevailed by a 98-1 vote, with only Sen. James M. Inhofe (R-OK) voting against it.

The next procedural maneuver occurred two days later on Feb. 9, when Sen. John Cornyn (R-TX) sponsored an amendment in the nature of a substitute that would eliminate the trust fund approach, keep asbestos claims in the tort system but require claimants to meet strict medical criteria.

Sources told Liability & Insurance Week that just before the vote on Thursday afternoon, they expected the Cornyn amendment would attract significant support from Democrats who believe that the $140 billion trust fund is inadequate and that keeping claims within the tort system is preferable to the fund, even if the medical criteria are strengthened.

However, that support never materialized. The Cornyn amendment was defeated by a 70-27 vote with no Democratic support (NAMIC correction: There were 26 Republicans and one Democrat - Kent Conrad, D-N.D. - who voted in favor of the amendment).

At press time, the Senate was continuing its deliberations over S. 852, which were expected to carry over into this week. It was unclear exactly what would happen next. One lobbyist said it is possible that the opponents of S. 852 will try to tie the Senate in knots over the course of the next several days by introducing a long series of amendments.

The hope, he said, would be that this would impose so many delays on the Senate that Senate Majority Leader Bill Frist (R-TN) would just get fed up and pull S. 852 from the floor.

However, this lobbyist said, he now thinks it is more likely that the legislation will eventually pass the Senate. He cited two reasons for this belief. First, he said, members of the Senate are weary of this issue and want to get rid of it any way they can. He said that many Senators want to simply kick the issue over to the House, which is not likely to approve a $140 billion trust fund.

Second, he said, both the White House and the Senate leadership want Senate Judiciary Committee Chairman Arlen Specter (R-PA), the primary architect of S. 852, to earn a victory because his committee will be considering some highly sensitive political issues.

This particularly includes the allegations of illegal wire-tapping of suspected terrorists. Both the White House and the Senate leadership are treading very carefully around Specter, this lobbyist said.

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reprinted with permission of Steven Brostoff

Source: Liability & Insurance Week, Feb. 13, 2006

Posted: Monday, February 13, 2006 12:00:00 AM. Modified: Monday, February 13, 2006 4:25:08 PM.

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