Among conservatives, there is perhaps
no senior figure in Washington more associated with compromise
than Senator Orrin Hatch (R-UT).
Considered a strong conservative by liberals,
Hatch frustrates conservatives. He's supported federal health
care, anti-gun measures and the legal destruction of healthy
human embryos for stem-cell research.1 When
he briefly ran for president against George W. Bush, he told
the Washington Post "I think it is time to have someone
who is not beholden to the Republican establishment."2
In a 1998 cover story, National Review
magazine said of him that "His politics are almost always
reactive and within the narrowly defined bounds of what's possible
But Hatch's always dignified but frustrating
penchant for pragmatism is playing a key role in the developing
federal solution to one of the most intransigent, and undercovered,
issues of recent decades: the asbestos liability crisis.
Despite tens of thousands left unemployed,
its negative effect on the stock market, the bankruptcy of 60-plus
firms and a price tag likely to exceed the cost of the Iraq war,
this crisis has attracted little notice outside of those directly
Asbestos, a mineral, was once considered
an industrial godsend. Because certain varieties do not burn
or conduct heat and are resistant to chemicals, they were widely
used for making fireproof materials, electrical insulation, roofing
and filtering devices.
Users included the Big Three auto makers
(asbestos was once the mainstay of brake linings), most electric
utilities, shipbuilders, oil refineries, construction firms,
textile mills and even such far removed companies as Gerber,4
Campbell Soup,5 Dow Jones,6 Sears,7
Viacom8 and Gallo.9
If directly inhaled over long periods,
asbestos can be lethal. During the first six decades of the 20th
century, hundreds of thousands of workers in mines, shipyards
and factories worked largely unprotected from clouds of asbestos
dust. Many developed debilitating diseases such as asbestosis
and mesothelioma, and those affected died premature and painful
The Environmental Protection Agency then
took a zero-tolerance line against asbestos, falsely stating
that even infinitesimal amounts of this mineral that most of
us breathe daily poses a health hazard. Numerous independent
studies subsequently concluded that asbestos, when sealed into
products, is harmless.
But personal injury lawyers had entered
the fray. The first of many big name bankruptcies occurred in
the 1980s. Huge awards stirred attorneys to file more lawsuits,
even as defendants' links to asbestos became weaker. By 2002,
the Rand Institute of Civil Justice estimated a whopping 85 percent
of America's major corporations were targets of asbestos lawsuits,
as were tens of thousands of smaller businesses. Most had only
a peripheral connection to asbestos, or simply purchased a firm
that once had some connection to the mineral.
Shockingly, evidence revealed that little
of the billions awarded were reaching sick plaintiffs. Huge legal
expenses were taking 60 percent of the awards, and 65 percent
of the funds left over were going to persons who had no asbestos-related
illness and probably never would.
Meanwhile, bankruptcies mounted and efforts
at a universal settlement hit a brick wall when the U.S. Supreme
Court declared in July 1999 that because of irreconcilable interests
of sick victims versus healthy persons exposed to asbestos who
might someday become ill, Congress, not the judicial system,
would have to be involved in any permanent solution.10
The personal injury lawyers continued
their attacks as the debate became mired in politics: Democrats,
heedful of the interests of lawyers who donate generously to
their campaigns, had reason to delay. Republicans lacked the
60 votes necessary to get a bill through the Senate, and in any
case were divided between two competing solutions: a so-called
medical standards solution and a trust fund for paying claims.
But the compromise engineered by Hatch
is now giving the first hope in years that the crisis may soon
be solved. If so, victims will benefit and so will the economy.
One Morgan Stanley analyst likens the positive benefit of successful
tort reform to the full impact of President Bush's proposed dividend
Working with key liberal Senators Patrick
Leahy (D-VT), Chris Dodd (D-CT) and others, and giving labor
unions a place at the table, Hatch has managed to broker a compromise
that will have defendant corporations and insurance companies
finance a $108 billion asbestos trust fund.
The lawsuits will end. Genuinely ill
plaintiffs will get benefits without legal fees, lengthy court
cases or the need to prove a single defendant caused their illness.
A chest X-ray showing asbestos-related disease presented before
a special asbestos court of five judges will be enough to trigger
compensation at levels related to the seriousness of the disease.11 And although corporations will fund the proceedings
and the payouts, asbestos-related bankruptcies should cease,
as companies will know the extent of their liabilities and be
able to plan for them.
The labor unions aren't yet signed on,
but they want to tweak the Hatch solution, not kill it. It's
their members, after all, who often are plaintiffs, and trial
attorneys, for all their value to liberal causes, are rarely
members of labor unions. And Hatch's quarter-century of compromise
on Capitol Hill has given him, by GOP standards, the trust of
But thanks to behind-the-scenes maneuvering
by a Senator often maligned by conservatives for his eagerness
to compromise, it is just possible that a permanent end to this
crisis is on the horizon.
# # #
Amy Ridenour is president of
The National Center for Public Policy Research, a Washington,
D.C. think tank. Comments may be sent to [email protected].