It may have failed to jolt you awake in the middle of the night when Sen.
Arlen Specter proposed a tiny amendment to the budget resolution. In fact,
the wording of the amendment
would have made sense to only a few insiders.
But the reaction in the U.S. Senate was swift because the implications
were so ominous-was the fragile political dike that protects asbestos
victims from losing their rights in court about to crack?
Budgets and Stuff
Specter's arcane amendment was tacked onto Senate Concurrent Resolution
21, otherwise known as "the budget." In English, it said that
the budget would be revised to accommodate funding for any asbestos reform
bill brought to the floor as long as it didn't increase the total
deficit between 2007-2012. Last year, recall that The FAIR Act never received
a floor vote in the U.S. Senate due to a procedural maneuver that prevailed
by a single vote (more on this below).
So far it just sounds like good, old-fashioned, pay-as-you go fiscal prudence,
although you might have been struck by the fact that there was no such
asbestos reform bill anywhere in sight. The second paragraph was even
fuzzier. "A point of order brought under section 201(a) or section
203(b) shall not apply…regarding asbestos reform."
The intent of this opaque language was to blunt the sharpened stick that
the senate had rammed into the eyes of Specter's asbestos misnomer
reform bill (which we'll call "UNFAIR 1") in 2006. With more than
$17 million in hard cash already banked from corporate America
2 , UNFAIR 1 seemed poised to gut legal redress for those poisoned by asbestos.
At the last moment, fiscal conservatives banded with those outraged by
UNFAIR 1 and raised a point of order on the floor of the senate.
A "point of order" sounds like a kindly, senatorial fellow getting
to his feet and advising his colleagues in avuncular fashion about some
harmless piece of trivia. In reality it is a procedural nuclear weapon
on the senate floor. When a senator brings a point of order under sections
201(a) or 203(b) of the 1974 Congressional Budget Act
4 , he essentially throws down a gauntlet saying that unless sixty senators
vote to waive the point of order, the proposed legislation will die on
the vine because it spends over the allotted budget. Getting sixty senators
to agree and then go on record that a law will
not illegally increase the federal budget is a huge hurdle.
Specter's UNFAIR 1 asbestos bill stumbled and broke its neck due to
this procedural maneuver, so he and his corporate backers decided to lay
the groundwork for UNFAIR 2. They began by attempting to strip the use
of a point of order from the arsenal of advocates for asbestos victims
and patients. When UNFAIR 2 or any similar legislation finally made it
to the floor, they'd be ready. Hoping that attention on the upcoming
elections and media coverage of the Iraq War would distract his opponents,
Specter - a doggedly loyal friend of the asbestos industry -- also saw
the amendment as a way to test the newly emboldened Democratic enemy.
How much fight would they have left after narrowly defeating UNFAIR 1
in 2006, a dogfight that consumed over $25 million in lobbyist fees?
Lean and Mean
The wily Sen. Specter's machination, however, fell flat. Asbestos victim
champions Sen. Harry Reid and Sen. Dick Durbin, far from being worn out,
saw the ploy coming and aggressively cut it off. Spurred by big gains
in the house and a majority in the senate, asbestos patient advocates
pounced on the amendment. Their wordsmithing on Specter's language
left him smoldering.
5 Far from blunting the pointed stick, the final wording on the amendment
sharpened it. The revised amendment said that yes, asbestos reform legislation
must not add to the deficit, and went on to strip away Specter's prohibition
of a point of order, and finally defined asbestos reform so clearly that
any bill eventually making it to the floor would probably not fit within
the amendment. In short, asbestos patient advocates took Specter's
sally, de-fanged it, and rubbed salt into the wound.
Despite what turned out to be a legislative fire drill, Specter's actions
raised a red flag. His unrelenting agenda to guarantee a bailout bill
for corporate wrongdoers, keep those poisoned by asbestos out of the courts,
and prevent mesothelioma patients from getting redress is still very much
alive and well. Specter's chief of staff Scott Hoeflich is said to
have UNFAIR 2 on his agenda, and nothing else. This first procedural skirmish
was likely an attempt to gird the wrongdoers' loins as they prepare
for another battle, undeterred by a chairman of the judiciary committee
who seems less than eager to let UNFAIR 2 get onto the senate floor.
First the Budget, then the Floor
Specter and his anti-patient, anti-veteran cohorts clearly sought to prepare
the way procedurally in case asbestos legislation ever gets to the floor.
The hopes for UNFAIR 2 are slim, but asbestos victim champions like Sen.
Patty Murray are now in a position to do something for patients and for
the public. Sen. Murray's recent hearings on banning asbestos indicate
that legislation might soon be back
6 , but just because her legislation reaches the senate floor friendly to
victims doesn't mean it will stay that way.
Had Specter's maneuver succeeded to broadly apply the point of order
exemption to any asbestos reform legislation, Sen. Specter might have
been able to lard up, junk up, or sabotage Sen. Murray's much needed
Ban Asbestos Act. He likely would have tried to amend victim-friendly
legislation once it reached the floor to bail out corporate henchmen,
strip away the rights of patients, pay pennies on the dollar to mesothelioma
victims, and not have the legislation killed with a point of order. Senators
Reid and Durbin deserve respect and appreciation for slapping down this
bit of chicanery.
The lesson: Sen. Specter is like the multi-headed hydra monster of lore.
He will stop at nothing to prevent mesothelioma victims from exercising
their constitutional rights to seek full redress for their avoidable and
tragic disease. It would be a grave mistake for labor, the patient population,
and their legal advocates to assume the coast will remain clear. Stay
tuned, and stay vigilant.