- The Washington Times - Saturday, June 11, 2005

Far too often, in our nation’s capital, the response to a bad law is to create another, even worse law. Such is the case with Sen. Arlen Specter’s proposed “solution” to the asbestos litigation crisis. While everyone agrees there is a problem urgently needing action, Mr. Specter wants to create a new Trust Fund at the Labor Department to pay claims with funds from a $140 billion new tax on U.S. manufacturers and insurers. FreedomWorks, a grass-roots advocacy group I co-chair, is working hard to defeat this colossally bad legislation.

Unfortunately, some Republicans are succumbing to the siren call of this Big Government proposal. In an odd new twist, my old friend Jack Kemp has now teamed up with Mr. Specter to attack my organization, FreedomWorks, for opposing the Trust Fund approach. Mr. Kemp’s letter (“A trust fund for asbestos victims” May 15, The Washington Times) responding to an article I wrote two months earlier, appeared the day before Mr. Specter published a blistering attack in the New York Times. It would be nice to see this energy and purpose aimed at the trial lawyers who caused the asbestos litigation crisis.

Mr. Kemp actually goes further than Mr. Specter and also argues our efforts to repair the legal system for asbestos litigation by setting clear medical criteria (defined by the American Medical Association) “simply will not provide justice to the thousands of asbestos victims, nor will it bring relief to the growing numbers of companies (including many small businesses) that face the increased risk of bankruptcy because of asbestos liability.” In reality, the opposite is true.

But don’t take FreedomWorks’ word for it. Reps. Chris Cannon of Utah, Mike Pence of Indiana, Jeff Flake of Arizona, and 52 of their colleagues have introduced H.R. 1957, tort reform legislation to put in place objective medical criteria for asbestos cases so the courts can compensate actual victims in a rational, fair way, while eliminating bogus claims. This bill is virtually identical to one introduced in the last Congress by conservative stalwart Sen. Don Nickles. H.R. 1957 is the principled, limited government answer to the asbestos litigation crisis.

Even more baffling than Mr. Kemp’s rejection of the conservative approach is his endorsement of a massive new tax on business, the centerpiece of the Specter approach.

Indeed, Mr. Specter knows better when he claims funding for his Trust Fund is voluntary. If he is not so aware, he would do well to read the text of his own legislation, which establishes a federal administrator responsible for “determining, levying, and collecting assessments on participants.” These “assessments” are compulsory. Section 223 of S. 852 outlines “enforcement of payment obligations,” including authorizing “a lien in favor of the United States for the amount of the delinquent payment (including interest) upon all property and rights to property, whether real or personal, belonging to such participant.”

Mr. Specter’s claim that businesses and insurers have “offered” to fund this proposal fails to acknowledge widespread and public opposition from these sectors. Even more medium-sized businesses that will be subject to the tax are unaware of their financial obligations under the Specter proposal.

Worse still, the current deal allocates nearly $7 billion of the Trust Fund as payments to trial lawyers. Even by government standards, $7 billion is a lot of money. If Mr. Specter’s bill is intended to create an administrative process similar to worker’s compensation, trial lawyers should not be involved.

Though Mr. Specter attacks my motives for opposing this multibillion-dollar payoff, FreedomWorks has heretofore made no issue of the more than $1.8 million trial lawyers invested in his 2004 re-election campaign, or that his son is one of Pennsylvania’s most powerful personal injury lawyers. We would rather debate his proposal’s merits.

The entire Specter trust fund approach is fundamentally flawed — it is an enormously complex proposal that fails to solve the very real asbestos litigation problem, and it saddles manufacturers and insurers with a complicated new tax.

Indeed, legal scholars question the constitutionality of S. 852, and court challenges will create additional uncertainty and may throw this ill-fated system into further chaos.

Real tort reform means fixing our broken legal system, not simply abandoning it to create an extraconstitutional bureaucracy and higher taxes.

Dick Armey is a former Republican member of the U.S. House of Representatives from Texas and former House majority leader. He is co-chairman of FreedomWorks, a nonpartisan, nonprofit group advocating lower taxes and less government.

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