- The Washington Times - Wednesday, May 21, 2003

Tort reform is a popular issue for Republicans on the stump. At a March speech to the American Medical Association, President Bush said, “Without fair and reasonable limits, the legal system looks more and more like a lottery. And with trial lawyers getting as much as 40 percent of the awards and settlements, it’s pretty clear who is holding the winning ticket.” Tort reform is a major plank of the president’s plan to reform health care. Unfortunately, Senate Republicans blew an opportunity to make progress on limiting excessive lawyers’ fees.

By a vote of 61-37, the Senate last Thursday rejected an amendment authored by Jon Kyl to the tax-cut bill that would have capped the amount lawyers could receive when working on major tort cases for the government, such as in the anti-tobacco litigation. Republicans voting against the amendment were George Voinovich, George Allen, Norm Coleman, Lindsey Graham, Lincoln Chafee, Saxby Chambliss, Thad Cochran, Mike Crapo, Mike DeWine, Richard Shelby, Gordon Smith and Arlen Specter. Trent Lott voted “present,” and Orrin Hatch voted against it twice — once in the Finance Committee two days earlier, signaling to conservative colleagues that it was acceptable to vote against it on the floor. Every single Democrat voted nay, except for Daniel Inouye, who didn’t vote.

Despite the 14 Republican defections, Mr. Kyl’s legislation was not radical or restrictive to the suing profession. It merely would have confined the lawyers’ cut of awards of more than $100 million to 500 percent of “reasonable hourly rates.” Poor chaps, the law would have pared their pay down to $2,500 per hour, from the $100,000 an hour some currently are making on the tobacco settlement.

What makes these sums truly outrageous is that they come out of state coffers. In the 1998 legal settlement, tobacco companies were obliged to pay states $246 billion to go toward smoking-prevention programs and to repay years of tobacco-related health-care expenditures by states. The lawyers’ take comes out of the total awarded to the states. The lawyers already have gotten $2.5 billion out of the deal, and are set to take in $500 million more annually forever.

Senate Republicans had a chance to put money where their mouths are. If passed, the Kyl amendment would have freed up $9 billion from the tobacco-tax settlement alone. That cash would have stayed with the states, which could use the money to manage their current budget crises. Instead, senators sided with trial lawyers over their own constituents.

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