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. ³

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 meso 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.

[1]  SEC. 326. DEFICIT-NEUTRAL RESERVE FOR ASBESTOS REFORM LEGISLATION.

(a) In General.--The Chairman of the Senate Committee on the Budget shall revise the aggregates, allocations, and other appropriate levels in this resolution for a bill, joint resolution, amendment, motion, or conference report regarding asbestos reform, by the amounts provided in such legislation for that purpose, provided that such legislation would not increase the deficit over the total of the period of fiscal years 2007 through 2012.

(b) PAYGO Exception.--A point of order brought under section 201(a) or section 203(b) shall not apply, upon the execution of the requirements under subsection (a), to any bill, joint resolution, amendment, motion, or conference report regarding asbestos reform.

[2] Open Secrets. http://www.opensecrets.org/payback/issue.asp?issueid=AB2&CongNo=109

[3] Insurance Journal, February 15, 2006. http://www.insurancejournal.com/news/national/2006/02/15/65431.htm

[4] Center on Budget and Policy Priorities, November 6, 2006. http://www.cbpp.org/3-7-03bud.htm

[5] SEC. 326. DEFICIT-NEUTRAL RESERVE FOR ASBESTOS REFORM LEGISLATION.

The Chairman of the Senate Committee on the Budget may revise the aggregates, allocations, and other appropriate levels in this resolution for a bill, joint resolution, amendment, motion, or conference report regarding asbestos reform, that (i) either provides monetary compensation to impaired victims of mesothelioma or provides monetary compensation to impaired victims of asbestos-related disease who can establish that asbestos exposure is a substantial contributing factor in causing their condition, (ii) does not provide monetary compensation to unimpaired claimants or those suffering from a disease who cannot establish that asbestos exposure was a substantial contributing factor in causing their condition, and (iii) is estimated to remain funded from nontaxpayer sources for the life of the fund, by the amounts provided in such legislation for that purpose, provided that such legislation would not increase the deficit over the total of the period of fiscal years 2007 through 2057

[6] Ban Asbestos in America Act 2007