Timing Decision Could Doom Class-Action Bill

Posted May 28, 2004 at 5:51pm

On the surface, today’s vote on class-action legislation may not look too different from all the other failed “legal reform” issues that Senate Republicans have been foisting on reluctant Democrats for years. [IMGCAP(1)]

As usual, a largely unified Senate Democratic contingent is poised to block Senate Majority Leader Bill Frist (R-Tenn.) from getting the 60 votes he needs to begin consideration of the measure.

But if this storyline sounds eerily similar to Frist’s previous failures to pass bills that would cap civil monetary damages for doctors and gun manufacturers, don’t be fooled. This time is different.

Democratic supporters of the bill and industry insiders agree that if the class-action bill fails today, then the main culprit will be the Senate Republican leadership’s bad planning.

Frist already has the 60 votes he needs to begin consideration of the class-action bill. At least he had those 60 votes before he decided to bring the measure up in the middle of debate on the all-important Defense Department authorization bill.

Frist made a deal last fall with Sens. Chris Dodd (D-Conn.), Mary Landrieu (D-La.) and Charles Schumer (D-N.Y.) that actually gave him 62 votes in favor of the class-action bill.

But if Frist presses the class-action vote today, he is likely to lose those three Democrats, along with stalwart class-action bill supporter Sen. Tom Carper (D-Del.). The reason: They all disagree with Frist’s decision to sideline the Defense bill while troops continue to fight in Iraq and Afghanistan. And they sent a letter to Frist last Thursday making that clear.

“This vote is not about the merits of class action at all,” said Carper spokesman Bill Ghent. “I think we would oppose moving off the Defense bill to consider any other piece of legislation. … It’s inappropriate to move off the Defense bill in a time of war.”

The timing of the vote, the critics say, adds a political edge to the debate that shatters the fragile aura of bipartisan compromise that surrounded the measure until recently. It also draws attention away from the substance of the bill, which would direct more class-action lawsuits to federal courts, where judges are considered less friendly toward enormous jury awards.

Industry insiders who support the bill acknowledge that Frist may have erred in deciding to push the Defense bill aside for debate on class action.

Indeed, lobbyists say they don’t relish having their nonemergency bill to give corporations some relief from class-action suits pitted against a measure designed to ensure that American troops are well-equipped in wartime.

One GOP-affiliated lobbyist said the scheduling decision could undermine momentum for the class-action bill.

“It keys it up to look like it’s a political vote, but we really want to do this bill,” the lobbyist said. “We don’t want this to turn into some silly pissing match, which brings down class action. … We need to de-link this from DOD.”

And although Frist promised corporate groups a month ago that he would bring up class action on June 1, lobbyists say that no one would have cried foul if that date slipped a little.

But one senior Senate GOP aide said that there is a logic to the timing — if one looks beneath the surface.

“As a management tool, there’s a lot of virtue in having this vote when we’re having this vote,” the aide said. “For those who understand how the rules work, it will actually strengthen Frist’s hand in scheduling class action. … All is not as it seems to the outside world when it comes to managing the Senate.”

The senior Senate GOP aide indicated that Frist may use a procedural maneuver called a motion to reconsider after the vote’s likely failure, to make sure he can bring the issue back up again without having to file a motion to limit debate — that is, invoke cloture — once again. Cloture motions take two days to ripen and can eat away at the limited Senate schedule, while motions to reconsider can be brought up at the drop of a hat.

Having the cloture vote today, the aide said, is better — even if it fails — “than wandering around on DOD and trying to guess what the best time to go to class action is two days ahead of time.”

Of course, the other option would be to agree to a finite list of amendments on the Defense bill, agree to vitiate the class-action cloture vote, quickly finish up Defense this week, and then move to class action. That outcome was a distinct possibility as of last week, according to a Democratic source.

Besides, Democrats aren’t worrying about any delay on class action, because they aren’t getting many complaints from industry groups about their reluctance to move off the Defense measure.

“I can’t find anybody in the business community who thinks what Frist is doing is helpful to the prospects for the bill,” said the senior Senate Democratic aide.

Indeed, some industry lobbyists are trying to walk a fine line, supporting Frist’s commitment to bring the bill up today while trying not to alienate their Democratic supporters.

“We’re trying to show our appreciation to Sen. Frist, but also understanding where the Democratic supporters of the bill are,” said a spokesperson for the Class Action Fairness Coalition, a group of businesses that want action on the bill.

Meanwhile, the Defense bill’s ouster from the Senate floor has little to do with the desire of Senate Republicans to move the class-action measure. Rather, it has more to do with an amendment from Sen. Lindsey Graham (R-S.C.) that seeks to accelerate the burial of nuclear waste in South Carolina as well as in Washington and Idaho, rather than waiting to move it to a permanent repository under construction in Nevada.

Senate Armed Services Chairman John Warner (R-Va.) — stymied in the search for a compromise that would satisfy the fears of Sen. Maria Cantwell (D-Wash.) about nuclear waste burial in her home state — even indicated that a break on the bill might be warranted.

Maybe the weeklong Memorial Day recess last week will count as that needed break, because the Defense bill is headed back to the Senate floor — with or without a cloture vote on class action.