Class-Action Deal Faces Roadblocks

Posted January 23, 2004 at 4:42pm

Senate Republicans finally have the votes to pass a controversial measure to send many class-action cases to federal courts, but they still have a long way to go in getting the bill to President Bush’s desk this year.

A last-minute deal with a handful of wavering Democrats near the end of the last session gave the Senate GOP leadership more than the 60 votes they needed to break a filibuster on the class-action bill.

With that breakthrough, Majority Leader Bill Frist (R-Tenn.) had hoped to bring the bill up as early as this week, though GOP aides said that scheduling snafus could push action to the end of February.

But regardless of when the bill comes to the Senate floor, the problem for Frist is the same: Unless he can muster the votes to kill a number of unrelated, but contentious, Democratic amendments — as well as convince House leaders to accept the Senate’s compromise version without amendment or a conference committee — all his efforts could be moot.

Shortly before Thanksgiving, Sens. Chris Dodd (D-Conn.), Mary Landrieu (D-La.) and Charles Schumer (D-N.Y.) agreed to drop their opposition to the class-action bill when Republicans agreed to soften the bill’s impact on the number of suits that could be sent to federal court — away from what many see as state courts that favor large monetary settlements.

Those three Democrats gave Republicans a total of 62 confirmed votes to kill a filibuster led by a separate cadre of Democratic lawmakers. (Republicans lost their first attempt to limit debate on the bill in October, falling just one vote short of invoking cloture.)

Under the bill, civil suits involving at least 100 plaintiffs and $5 million could be moved to federal court, if the primary defendant and fewer than two-thirds of the plaintiffs hail from the same state.

However, conversations with both Democratic and Republican supporters of the bill reveal there is still some dispute about just what else the agreement with Democratic supporters entails.

While Dodd, Schumer and Landrieu agreed to support the new compromise language on the bill, they did not explicitly agree to oppose all extraneous amendments that may come up during debate on the bill, according to aides from both parties.

Meanwhile, all three, along with other long-time class-action overhaul supporters such as Sens. Tom Carper (D-Del.) and Dianne Feinstein (D-Calif.), are coming under increasing pressure from their Caucus — particularly Sen. Edward Kennedy (D-Mass.) — to support amendments to the class-action bill that would increase the minimum wage, overturn Bush administration rules on worker overtime, and establish a federal penalty for “hate crimes,” among other Democratic policy priorities.

Dodd said he was under no obligation to oppose any amendments that might come up during debate. “There was no understanding on other amendments,” he said.

Carper spokesman Bill Ghent noted that the lawmaker, an early co-sponsor of the Senate bill, has always told GOP leaders that the bill must come up under “regular order.” In other words, Carper believes it should be fully amendable and debatable to assuage Democratic opponents who vehemently oppose the measure.

Even Carper may feel the need to vote with his fellow Democrats on issues of vital importance to his party. “We’ll be taking votes on non-germane amendments on a case-by-case basis,” said Ghent.

Indeed, Sen. Dick Durbin (D-Ill.) said Democrats who support the class-action measure will have a tough choice to make. “It’ll be a dilemma for some of those Democrats on some of those amendments,” said Durbin, who opposes the bill.

But Judiciary Chairman Orrin Hatch (R-Utah) disputed the notion that Democratic class-action supporters have a little wiggle room.

“As far as I’m concerned, the deal was that they would support the bill and that they’d vote against amendments to change it,” Hatch said.

Still, Senate GOP Conference Chairman Rick Santorum (Pa.) noted that Republicans do not need all their Democratic supporters to block non-germane Democratic amendments. They only need 51 votes to defeat those proposals, he said, noting that some Democrats would likely vote with Republicans even if a few moderate Republican Senators break ranks on votes like minimum wage.

Indeed, Landrieu said she would likely oppose any non-germane Democratic amendments to preserve her compromise with Republicans. But, like her fellow Democrats, she cautioned that there would be no deal at all if the House does not accept the Senate’s language without question.

“It has to come back to the Senate in substantially the same form, and we have the votes to block it if it doesn’t,” she said.

Santorum warned that if Democratic supporters of the bill really want the House to accept the Senate’s language, they should be willing to vote against their own party’s priorities.

“Obviously if they vote for amendments on minimum wage and hate crimes, then they won’t have a bill that will pass the House,” he said.

Indeed, Members of both parties agree that the only way to get the bill to the president is for the House to accept the Senate bill, because a conference committee seems impossible given the ongoing Democratic effort to block the appointment of conferees for all legislation.

Minority Leader Tom Daschle (D-S.D.) confirmed he would object to appointing conferees to the class-action bill, if it passes the Senate. It’s a practice Democrats began last year as a protest at being excluded from conference negotiations on such mammoth bills as the energy policy measure and a bill creating a prescription drug benefit under Medicare.

Meanwhile, one senior GOP aide said Senate leaders have not yet begun talking to House leaders about whether they would be amenable to accepting the Senate language, even if it does not include unrelated provisions such as an increase in the minimum wage.

But so far, House Republicans, whose version would affect far more class-action suits than the Senate version, don’t seem receptive to the idea.

“The House will probably stick to its guns,” said John Feehery, spokesman for Speaker Dennis Hastert (R-Ill.).