Editorial November 15, 2013



 Asbestos is back on the docket this week in what appears to be a reoccurring effort to relieve companies of the cost of being sued by their employees because they became ill after on-the-job exposure to asbestos. There are several companies being sued and thousands of lawsuits going back to before the 2000 elections and many focus on an asbestos mining company in Billings, Montana that was purchased by Halliburton when Vice President Cheney was a Halliburton official.

 Asbestos, basked for decades in the glow of its many varied uses, but turned out also to be a lethal and relentless killer when inhaled. The primary result is mesothelioma, a disease caused by asbestos fibers that inflame the lining around the lungs and intestines resulting in a slow death mostly by the inability to breath. What is tricky about mesothelioma is that the person infected may show no symptoms for as many as forty years. As time goes by more of those workers exhibit symptoms and file the lawsuits asking for payouts, often over a million.

 An earlier and much bolder effort along this line was made by the Senate in 2004. The Republicans controlled the White House and Capitol Hill making Vice President Cheney the President of the Senate. Senate Majority Leader at the time, Bill Frist (R-TN), brought a bill to the floor aiming to limit asbestos lawsuit amounts to $250,000 or less. The bill never gained traction perhaps because the formulas for determining if a claimant got mesothelioma or lung cancer from asbestos or smoking were complicated or perhaps because, although Mr Cheney left Halliburton before taking on the Vice Presidency, his relationship to the issue and his relationship to those who would benefit from the legislation were too close.

 Over time, some companies exposed to the law suits were allowed to defer the process to asbestos trusts, organizations that process the complaints, assess the evidence and pay the claim. The companies pay into the trusts, the trusts handle the claim.

 Tagging asbestos exposure to a job twenty or thirty years ago is a task but one that has become somewhat streamlined and the arguments still hold water. What makes those suits viable is the awareness that before asbestos was publicly recognized as the culprit the US government and the company in Montana knew the stuff was dangerous but never told their employees.

 This week;s bill, HR 982, which, if it really intends to relieve claimants of some burden or other, actually adds to the claimants’ burden. The bill would require public posting of claimant data that could easily create more problems for the claimant. Under the bill the claimants name, claims, and part of their Social Security number would be posted on a court’s bankruptcy website which could then be reviewed by other companies facing claims. But, as opposition to the bill pointed out, that data could be mined for purpose by insurance companies and others who would benefit.

Opposition to this bill sees the public posting requirement as a way in which solvent companies facing litigation can cut corners and save money in the litigation area of discovery. Intended to otherwise the posted information could be used that way.

There may be companies who handle asbestos and got caught up in the rush of lawsuits but a majority of claimants come from the era some forty years ago when they were not only exposed to asbestos but without the employers knowledge that the material is dangerous to breath. While bill sponsors continue to try easing the pain of the defendants, they are overlooking that a serious wrong was committed against the victims and those responsible should not be left off the hook.

House Parliamentarian Oversees the Rules


Clarence Andrew Cannon, Collection of the U.S. House of Representatives

Clarence Andrew Cannon, Collection of the U.S. House of Representatives

The Parliamentarian is a nonpartisan official appointed by the Speaker of the House to render objective assistance on legislative and parliamentary procedure to the House of Representatives. During proceedings on the floor, the Parliamentarian sits to the Speaker’s right on the dais.

The parliamentary law of the House of Representatives derives from the Constitution and rules adopted pursuant to Article I, section five of the Constitution. These rules include not only the standing rules adopted from Congress to Congress but also Jefferson’s Manual, as customarily incorporated by reference in the standing rules. They also include rules enacted as law and special rules adopted as necessary. On this foundation rests a body of precedent established by decisions of presiding officers on actual parliamentary questions or by long custom and tradition.

In resolving questions of order, the Speaker and other presiding officers of the House adhere to the jurisprudential principle of stare decisis, a commitment to stand by earlier decisions. The overarching role of the Office of the Parliamentarian is to strive for consistency in parliamentary analysis by attempting to apply pertinent precedent to each procedural question.

Persons who performed various aspects of the Parliamentarian’s duties held a series of titles throughout congressional history, including “Messenger to the Speaker,” “Clerk to the Speaker,” and “Clerk at the Speaker’s Table.” Beginning in the 70th Congress (1927–1929) the title became “Parliamentarian.” Since 1857, 20 individuals have served in that role. Four also served as Members of the U.S. House of Representatives.

Former Parliamentarians Asher Hinds, Clarence Cannon, and Lewis Deschler each compiled parliamentary precedents of the House that remain invaluable records of its proceedings. The Office of the Parliamentarian biennially publishes a House Rules and Manual. For the longer term, the Parliamentarian and its subsidiary Office of Compilation of Precedents continue the perennial compilation of parliamentary precedents for formal publication. The precedents presently fill 28 volumes comprising thousands of decisions over the 224 years of parliamentary practice in the House. They are published as Hinds’ Precedents (1907); Cannon’s Precedents (1936); and Deschler’s, Deschler-Brown, Deschler-Brown-Johnson, and Deschler-Brown-Johnson-Sullivan Precedents (ongoing). To bridge the span between a digest of decisions and formally published precedents, the Parliamentarian also publishes a condensed compilation of procedures of current application as House Practice.

Courtesy House Clerk

Constitutional Design of the Senate, 1787

The framers of the Constitution created the United States Senate to protect the rights of individual states and safeguard minority opinion in a system of government designed to give greater power to the national government. They modeled the Senate on governors’ councils of the colonial era and on the state senates that had evolved since independence. The framers intended the Senate to be an independent body of responsible citizens who would share power with the president and the House of Representatives. James Madison, paraphrasing Edmund Randolph, explained in his notes that the Senate’s role was “first to protect the people against their rulers [and] secondly to protect the people against the transient impressions into which they themselves might be led.”

To balance power between the large and small states, the Constitution’s framers agreed that states would be represented equally in the Senate and in proportion to their populations in the House. Further preserving the authority of individual states, they provided that state legislatures would elect senators. To guarantee senators’ independence from short-term political pressures, the framers designed a six-year Senate term, three times as long as that of popularly elected members of the House of Representatives. Madison reasoned that longer terms would provide stability. “If it not be a firm body,” he concluded, “the other branch being more numerous, and coming immediately from the people, will overwhelm it.” Responding to fears that a six-year Senate term would produce an unreachable aristocracy in the Senate, the framers specified that one-third of the members’ terms would expire every two years, leaving two-thirds of the members in office. This combined the principles of continuity and rotation in office.

In the early weeks of the Constitutional Convention, the participants had tentatively decided to give the Senate sole power to make treaties and to appoint federal judges and ambassadors. As the convention drew to a close, however, they moved to divide these powers between the Senate and the president, following Gouverneur Morris’ reasoning that “As the president was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.” Due to the concern of individual states that other states might combine against them, by a simple majority vote, for commercial or economic gain, approval of a treaty would require a two-thirds vote. In dealing with nominations, the framers believed that senators — as statewide officials — would be uniquely qualified to identify suitable candidates for federal judicial posts and would confirm them along with cabinet secretaries and other key federal officials, by a simple majority vote.

Organizing the New Government, 1789-1794

The United States Senate convened for the first time on March 4, 1789, in an elegant second-floor chamber of New York City’s newly remodeled Federal Hall. Only eight of the 22 eligible members (from the 11 states that had already ratified the Constitution) were present on that day. On April 6, 12 members were present to establish a quorum and the Senate got down to work. As its first item of business, the Senate elected New Hampshire’s John Langdon president pro tempore and invited the House of Representatives to its chamber to count the electoral ballots for president and vice president. On April 21 John Adams took his oath as vice president, thereby assuming his responsibility under the Constitution to serve as the Senate’s president and presiding officer. Nine days later, House members again crowded into the Senate chamber to witness George Washington’s inauguration.

In its early weeks, the Senate turned to various organizational matters. Members appointed a six-member staff, including a doorkeeper, a secretary, a chaplain, and two clerks. Temporary committees were established to formulate a code of rules that would guide the Senate’s proceedings, and to draft legislation to give shape to the government’s judicial branch. The Senate divided its members into three equal and sectionally balanced classes, with the terms to expire at two, four, and six-year intervals. As new states entered the Union, their senators would be assigned to two of the three classes.

In its first session the Senate cautiously engaged its constitutional responsibilities, mindful of the precedent-setting nature of its every interaction with the House of Representatives and the president. Senators gave serious attention to their duty to provide advice and consent to the president’s nominations and treaties. A Georgia senator’s objection to an appointment of a naval officer in his state resulted in the first Senate rejection of a presidential nominee, reflecting the understanding that senators were the best judges of appointees from their states to which other members would defer as a matter of “senatorial courtesy.” When President Washington visited the Senate in August 1789 to consult about a recently negotiated Indian treaty, he expected an immediate response. To his great frustration, the Senate decided to refer the issue to committee for further study. After Washington finally received Senate approval of that treaty, he vowed he would never again seek the chamber’s advice and consent in person.

The Senate’s workload increased greatly during the final weeks of the first session in 1789. This reinforced the framers’ notion that the House of Representatives would serve as the principal workshop for crafting legislation, while the Senate would polish and rework that legislation in consideration of what were presumably the nation’s broader and longer-term interests.

The second session of the first Congress convened in January 1790 and lasted seven months. During this period the Senate turned to legislation that would place the nation on a firm financial footing, and provided for a permanent seat of government in a special federal district along the Potomac River. While that site was being prepared, Congress agreed to move the government to Philadelphia, where the final session of the First Congress met between December 1790 and March 1791.

During its ten-year residence in Philadelphia, the Senate conducted its proceedings in the second-floor chamber of that city’s recently reconstructed “Congress Hall.” During the ten years the Senate met in that chamber political parties became the principal determinant of legislative debate and accomplishment.

Like the Continental Congress and the Constitutional Convention, but in contrast to the House of Representatives, the Senate in 1789 had decided to conduct its sessions behind closed doors. A clash in 1794 between Federalists and Anti-federalists over the seating of newly elected Pennsylvania Senator Albert Gallatin brought a partial abandonment of the Senate’s closed-door policy. Members of the Federalist majority feared that their planned rejection of Gallatin, an Anti-federalist, would trigger charges of improper behavior if done in secret. Calls for an open-door policy were not new. Demands for open sessions came principally from the state legislatures, whose members argued that secret sessions did not allow them to effectively assess the conduct of the senators they had elected. Also, press coverage of open sessions in the House of Representatives helped popularize its legislative role in the new government, but the Senate’s less visible action put it in danger of becoming the forgotten chamber. Consequently, the Senate took the opportunity of Gallatin’s contested election to open its doors for all legislative business. (Doors generally remained closed, however, for executive business related to presidential nominations and treaties until 1929.)

Courtesy Senate Clerk