[Congressional Record Volume 144, Number 78 (Tuesday, June 16, 1998)]
[Senate]
[Pages S6373-S6381]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        NATIONAL TOBACCO POLICY AND YOUTH SMOKING REDUCTION ACT

  The Senate continued with the consideration of the bill.
  Mr. SESSIONS. Mr. President, I would like to thank----
  Mr. GORTON. Will the Senator yield?
  Mr. SESSIONS. I will.


                    Amendment No. 2705, as modified

  Mr. GORTON. Mr. President, I have a modification of my amendment at 
the desk. And I take it that I have the right to modify the amendment.
  The PRESIDING OFFICER. The Senator has that right. The amendment is 
so modified.
  The amendment, as modified, is as follows:

       At the end of the pending amendment, add the following:

     SEC.  LIMIT ON ATTORNEYS' FEES.

       (a) Fees Covered by This Section.--Notwithstanding any 
     other provision of law, or any arrangement, agreement, or 
     contract regarding attorneys' fees, attorneys' fees for--
       (1) representation of a State, political subdivision of a 
     state, or any other entity listed in subsection (a) of 
     Section 1407 of this Act;
       (2) representation of a plaintiff or plaintiff class in the 
     Castano Civil Actions described in subsection (9) of Section 
     701 of this Act;
       (3) representation of a plaintiff or plaintiff class in any 
     ``tobacco claim,'' as that term is defined in subsection (7) 
     of Section 701 of this Act, that is settled or otherwise 
     finally resolved after June 15, 1998;
       (4) efforts expended that in whole or in part resulted in 
     or created a model for programs in this Act,
     shall be determined by this Section.
       (b) Attorneys' Fees.
       (1) Jurisdiction.--Upon petition by any interested party, 
     the attorneys' fees shall be determined by the last court in 
     which the action was pending.
       (2) Criteria.--In determining an attorney fee awarded for 
     fees subject to this section, the court shall consider--
       (A) The likelihood at the commencement of the 
     representation that the claimant attorney would secure a 
     favorable judgment or substantial settlement;
       (B) The amount of time and labor that the claimant attorney 
     reasonably believed at the commencement of the representation 
     that he was likely to expend on the claim;
       (C) The amount of productive time and labor that the 
     claimant attorney actually invested in the representation as 
     determined through an examination of contemporaneous or 
     reconstructed time records;
       (D) The obligations undertaken by the claimant attorney at 
     the commencement of the representation including--
       (i) whether the claimant attorney was obligated to proceed 
     with the representation through its conclusion or was 
     permitted to withdraw from the representation; and
       (ii) whether the claimant attorney assumed an unconditional 
     commitment for expenses incurred pursuant to the 
     representation;
       (E) The expenses actually incurred by the claimant attorney 
     pursuant to the representation, including--
       (i) whether those expenses were reimbursable; and
       (ii) the likelihood on each occasion that expenses were 
     advanced that the claimant attorney would secure a favorable 
     judgment or settlement;
       (F) The novelty of the legal issues before the claimant 
     attorney and whether the legal work was innovative or modeled 
     after the work of others or prior work of the claimant 
     attorney;
       (G) The skill required for the proper performance of the 
     legal services rendered;
       (H) The results obtained and whether those results were or 
     are appreciably better than the results obtained by other 
     lawyers representing comparable clients or similar claims;
       (I) The reduced degree of risk borne by the claimant 
     attorney in the representation and the increased likelihood 
     that the claimant attorney would secure a favorable judgment 
     or substantial settlement based on the progression of 
     relevant developments from the 1994 Williams document 
     disclosures through the settlement negotiations and the 
     eventual federal legislative process;
       (J) Whether this Act or related changes in State law 
     increase the likelihood of the attorney's success;
       (K) The fees paid to claimant attorneys that would be 
     subject to this section but for the provisions of subsection 
     (3);
       (L) Such other factors as justice may require.
       (3) Effective Date.--Notwithstanding any other provision of 
     law, this section shall not apply to attorneys' fees actually 
     remitted and received by an attorney before June 15, 1998.
       (4) Limitation.--Notwithstanding any other provision of 
     law, separate from the reimbursement of actual out-of-pocket 
     expenses as approved by court in such action, any attorneys' 
     fees shall not exceed a per hour rate of--
       (A) $4000 for actions filed before December 31, 1994;
       (B) $2000 for actions filed on or after December 31, 1994, 
     but before April 1, 1997, or for efforts expended as 
     described in subsection (a)(4) of this section which efforts 
     are not covered by any other category in subsection (a);
       (C) $1000 for actions filed on or after April 1, 1997, but 
     before June 15, 1998;
       (D) $500 for actions filed after June 15, 1998.
       (c) Severability.--If any provision of this section or the 
     application of such provision to any person or circumstance 
     is held to be unconstitutional, the remainder of this section 
     and the application of the provisions of such to any person 
     or circumstances shall not be affected thereby.

  Mr. GORTON. I thank the Senator from Alabama.
  The PRESIDING OFFICER. The Senator from Alabama.

[[Page S6374]]

  Mr. SESSIONS. Mr. President, I thank the Senator from Washington for 
his legislation, which I am pleased to support.
  I suppose it is round four in this battle. This is the fourth vote we 
will have had on it. I think the Senator from Washington has attempted 
in good faith to deal with some of the complaints that have been raised 
about capping attorneys' fees.
  Our last vote was at $1,000 an hour. He has come in and said, well, 
if you establish certain things, and you started early, and you worked 
hard on this and are one of the people who really deserve credit for 
this litigation, you could get up to $4,000--that is up to $4,000. So 
it should not be criticized as a guarantee of $4,000 per hour. I think 
these judges would decide on that. But he caps it at that amount. For 
other people who were involved less in the case, it would be capped 
later.
  And to my good friend, the Senator from Minnesota, he talked about 
the Minnesota perspective. I believe Minnesota has been at this some 
time. They worked a number of hours on this case. They would be paid at 
least $2,000, and I believe up to perhaps $4,000 per hour for their 
work, depending on how much the judge were to give them. I think that 
is a very generous legal fee. As a matter of fact, it goes beyond what 
I would consider within the mainstream.
  As a matter of fact, I was just called off the floor a few minutes 
ago and met a group of young people from my home State. And I asked 
them if they thought $4,000 an hour--how would they feel about that to 
pay an attorney for doing legal work. And they did not think I was 
serious. They thought it was a joke. Talking about $4,000 an hour--that 
is a lot of money. So I think we have to deal with this.
  Let me talk briefly about the fact that Senators on the other side 
have suggested, well, we have an arbitration process. The arbitration 
process is not between the people who are paying the fees or the 
defendants in the litigation. The arbitration process is between the 
plaintiffs, which in this case are the States represented by the 
attorneys general, and their attorneys, the plaintiffs' lawyers, the 
attorneys. And what it says is, if they are unable to agree; that is, 
the attorney general and the lawyer he hired and who agreed to a 
certain fee, if those two are unable to agree with respect to any 
dispute that may arise between them regarding the fee agreement--
regarding the fee agreement--then the matter goes to arbitration, then 
the matter goes to arbitration. Under the fee agreement, they are 
talking about a 25 percent, 20 percent, 15 percent contingent fee, 
which would enrich these lawyers to an extraordinary degree.
  What the Senator from Washington has understood--and I think his 
legislation recognizes--is that a lot of the attorneys in this 
litigation have done little or no work. A few of these cases were 
started early on; a lot of legal work was done; a lot of attorney 
investment and time and some personal funds were expended on behalf of 
this litigation. And that is one thing.
  But as the time went by, other States joined. Many of them joined in 
a matter of weeks or a matter of months before the settlement by the 
tobacco companies was offered. Those lawyers now want to walk in and 
claim 25 percent of what is being paid in, and they worked only a very 
few hours on this case.
  Some of these lawyers, it has been estimated, according to a 
professor from Cardozo Law School, are to receive as much as $92,000 
per hour--$92,000 per hour--unless something is done about it. So I 
think we have to act now. We have a responsibility to act. And I am 
certain of that.
  Mr. GORTON. Will the Senator from Alabama yield?
  Mr. SESSIONS. I certainly will.
  Mr. GORTON. Is the Senator from Alabama aware of the fact that the 
U.S. district court of Texas has determined that a legal fee of $2.3 
billion would be reasonable?
  Mr. SESSIONS. I am aware of that. And I am glad the Senator from 
Washington made that insightful observation.
  Mr. GORTON. Does not the Senator from Alabama agree that is a matter 
in which we here in the Congress, dealing with this bill, can be 
interested in saying, no, that is too high?
  Mr. SESSIONS. I certainly do.
  Mr. GORTON. I thank my friend from Alabama.
  Mr. SESSIONS. With regard to the Florida case, the trial judge found 
it was unconscionable, as I hope this body finds these fees are 
unconscionable. But that case has been reviewed at a higher court and 
that opinion has been withdrawn.
  So we don't know yet whether the lawyers in Florida will get $2.8 
billion that they request or not. In fact, Mr. Montgomery, the lead 
attorney in the case, said he fully expects to be paid what his fee 
agreement said. He expects to prevail. He says he has a contract.
  How can we violate contracts? We violate contracts all the time in 
this body. We are telling the tobacco companies they can't advertise. 
Many of them have advertising contracts extended for years. We are 
changing the whole way of doing business about tobacco. Everything 
about the tobacco business is being changed by this legislation. It is 
a comprehensive legislation in which we deal with almost every aspect 
of it. One of those aspects ought to be how much these fees should 
count for.
  I was in Alabama recently to see one of the finest and biggest 
industrial announcements in the history of the State and one of the 
largest in the country. Boeing is going to build a rocket plant near 
Decatur. It is 50 acres under one roof. They told me with great pride 
that the cost of that building and facility and land and construction 
would be $450 million. We are talking about attorneys in Florida asking 
$2.8 billion, five or six times that much, five or six times the cost 
of one of the largest industrial announcements in America by one of the 
world's largest corporations. That is the extent of the fees we are 
talking about in Alabama. The general fund of the noneducation budget 
is less than $1 billion. These attorneys are asking for more than that.
  As a matter of fact, a professor from Cardozo Law School estimates 
that it will make 20 to 25 attorneys in America billionaires. I had my 
staff check. I believe the Fortune Magazine that rates America's 
richest people, the world's richest people, listed 60 billionaires in 
the United States. This litigation, unless we act, could create 20 more 
billionaires, many of whom have worked less than a year, maybe even 
only a few months, on the cases with which they are dealing.
  Now, I am not against a contingent fee. I support that concept. But 
the attorneys and the attorneys general have come to the Congress and 
asked us to legislate. The plaintiff attorneys have and the attorneys 
general have asked us to comprehensively review this entire process and 
litigate on it. This is an unusual type of case because we have never 
seen these kind of moneys before and we have never seen these kind of 
fees before.
  It is perfectly appropriate for us to contain them. As the Senator 
from Washington said, we limit fees to $125 an hour in equal access to 
justice cases. Appointed criminal attorneys in Federal court get paid 
$75 an hour. I think $2,000, $4,000 an hour is enough. It will make 
them rich beyond all imagining, just that alone. If they haven't done 
any work on the case and don't have any hours into the case, they ought 
not be made any more rich than they are.
  Mr. CONRAD. Will the Senator yield?
  Mr. SESSIONS. I yield.
  Mr. CONRAD. In the Senator's previous amendment, didn't the Senator 
have a cap of $1,000 an hour?
  Mr. SESSIONS. Yes.
  Mr. CONRAD. How can this Senator justify supporting an amendment now 
that goes to $4,000 an hour?
  Mr. SESSIONS. I am glad to answer that. First of all, if we don't cap 
it at $4,000 an hour, we are likely to end up as in Texas at $92,000 an 
hour. A judge has approved that fee in Texas. It is going to go 
through. So certainly this is better than nothing.

  No. 2, the fee is capped at $4,000 an hour. A judge must consider the 
skill, the expertise, the commitment, and the value of the contribution 
of that attorney. Some flunky in the firm isn't going to be paid $4,000 
an hour. The lead lawyers, the ones who have demonstrated the greatest 
skill and leadership and effectiveness, would have the opportunity to 
reach that high but no higher.

[[Page S6375]]

  So it is certainly a step in the right direction and preferable to 
nothing, although, as you well know, I was very supportive of the 
$1,000-per-hour cap.
  Mr. CONRAD. Could I ask the Senator a further question?
  Mr. SESSIONS. Certainly.
  Mr. CONRAD. Is it not the case in the Texas matter that there has not 
been a dollar paid and there is no final resolution of that matter, 
that that matter is on appeal, and the Governor has interceded in that 
case?
  Mr. SESSIONS. That is correct. But the suggestion that judges are 
going to somehow guarantee that these exorbitant, as you indicated, 
unconscionable fees will not occur is not clear from that case because 
the judge has, in fact, affirmed that case.
  The Governor, George Bush of Texas, is doing everything he can to 
resist the payment of those exorbitant fees, but he has not yet 
prevailed. We don't need to have litigation in every State in America. 
We ought to comprehensively legislate this legislation with all of the 
others in this case.
  Mr. CONRAD. One final question I ask of the Senator. Isn't the 
Senator concerned, as I am, that the $4,000-per-hour fee cap that is 
supposed to be a cap, supposed to be a ceiling, could well turn into a 
floor, and the fact is that we will see unconscionable attorneys' fees 
under this amendment?
  The Senator viewed $1,000 an hour as a limit and now this has $4,000 
an hour as a limit. Isn't it possible that we will see absolutely 
unconscionable attorneys' fees out of an amendment like this?
  Mr. SESSIONS. Let me respond with a question. Does the Senator from 
North Dakota believe there should be no cap on the attorneys' fees?
  Mr. CONRAD. The Senator from North Dakota believes that the Senate is 
ill equipped to reach into the thousands of cases across the country 
and determine what is an appropriate fee. The Senator from North Dakota 
is the author of the arbitration provisions that are in this bill 
because I concluded after listening to witnesses on all sides that we 
could see truly outrageous returns to attorneys, windfall profits for 
attorneys under the cases that are across the country. The best way to 
stop that was arbitration panels. Any time we fix an arbitrary fee 
amount, it may be way too much or may turn out to be too little.
  I must say, I can't imagine any circumstance in which $4,000 an hour 
is too little. I can imagine a circumstance in which, as a previous 
amendment had $250 an hour proposed, I can imagine for those firms that 
went out on their own nickel and took on the tobacco industry, that 
they faced a very tough circumstance, $250 an hour may be too little.
  I really am very concerned when we say $4,000 an hour and we put our 
stamp of approval on that. For every case that was filed back before 
1994, we will wind up with a circumstance where people get unjustly 
enriched.
  Mr. SESSIONS. I understand that, but the point clearly is this is a 
cap of $4,000 per hour. It is not a guarantee of $4,000 per hour. I 
preferred a cap of $1,000 per hour. The Senator from North Dakota 
opposed that. So we raised the figure now. I don't see how anybody can 
complain about this cap.
  As to this arbitration agreement, it either does one of two things: 
It either violates the contracts and, therefore, the legislation 
written by the Senator from North Dakota has, in fact, undertaken to 
override the fee written agreement between the attorneys general and 
their plaintiff lawyers; or it does not.
  I am afraid, however, that it doesn't do what the Senator from North 
Dakota suggests, because the way I read it, the only complaint that can 
be made is when the attorney general disagrees with the amount of the 
fee with the lawyer he hired. The exact language is:

       With respect to any dispute that may arise between them 
     regarding the fee agreement, the matter shall be submitted to 
     arbitration.

  So, I am not sure that this arbitration agreement has any impact 
whatever on attorneys' fees. The only thing that would happen is some 
judges may find it unconscionable and just refuse to enforce it. That 
is obvious to us, that many of these agreements are unconscionable and 
ought not to be enforced.
  With regard to the Florida fee where the judge held it to be 
unconscionable, those lawyers have worked a pretty good while on that 
case. They have done a pretty good amount of work.
  The lawyers in Mississippi and Texas have put in a lot of work. The 
lawyers in Minnesota have put in a lot of work. But there are quite a 
number of States where the attorneys have done almost no work and they 
expect to receive a billion dollars. A lawyer, Mr. Angelos, who I 
believe owns the Baltimore Orioles, had a 25 percent agreement with the 
State of Maryland. After the case collapsed and they agreed to pay the 
money--and I don't know how long after he filed the lawsuit, but he 
certainly wasn't one of the early hard workers on the litigation--he 
agreed to cut his fee in half to 12.5 percent. That was real generous 
of him. As I read that in the newspapers, that was a billion dollars. 
That 12.5 percent was over a billion dollars. And he has done almost 
nothing.
  These are fees the likes of which the world has never seen in 
history. The amount of work that went into obtaining these fees is 
minuscule in many cases, and as we are going about tobacco legislation, 
we simply ought not to allow it to happen. I can't say how strongly I 
believe that is true. No bill should come out of this Congress that 
does not have a realistic cap on attorneys' fees. To do so would be to 
dishonor the taxpayers of this country. And to argue, as some have, 
that it is being paid by the lawyers or the tobacco companies, and 
therefore not paid by the citizens of the country, is likewise an 
improper and unacceptable argument.
  The truth is that any way you look at it, it is money paid by the 
tobacco companies to settle the lawsuit. It is sort of unwise and 
unhealthy, in my opinion, for it to be structured this way. Well, the 
plaintiff lawyers who are representing the State of Alabama, or the 
State of Mississippi, say: State of Mississippi, you don't have to pay 
my fee; I will just take my fee over here from the tobacco companies; 
they will pay it.
  Well, one of the classic rules of law is that a person who pays your 
fee is the one you have loyalty to. It creates an impermissible 
conflict of interest, in my view, between the attorney and his true 
client--the State--that he is representing. So sometimes they argue 
that it doesn't count because it was paid by the tobacco companies. 
That is bad from an ethical point of view, in my opinion. It is also an 
unjustified argument, because the tobacco company doesn't care whether 
the money they pay goes to the attorneys' fees or to the State, they 
just want the lawsuit to end, so they will pay some of it over there 
and some over there. They just say, ``Tell me where you want me to pay 
it, State of North Dakota, and I will write the check. Do you want me 
to write a billion dollars to the attorneys? I will do it. Or I will 
write you a check for $4 billion. Whatever you say.'' It is just money 
to settle a lawsuit to them. Certainly that billion dollars could have 
been put in for health care, tax reductions, and other good things. So 
that argument, to me, is very unhealthy.
  In the history of litigation throughout the entire world, we have 
never seen the kind of enrichment possibilities that exist for 
attorneys as it exists in this case. With regard to the Florida case, 
although the trial judge found it unconscionable and he tried his best 
to eliminate it, his opinion has been withdrawn and is not the final 
court opinion. The attorney who stands to gain the money still asserts 
he hopes to get those fees exactly as he was promised. With regard to 
Texas, a judge has approved a $2.3 billion attorney fee already. I 
don't know if Governor Bush can succeed in turning that around or not. 
He is doing all he can to do so, as well he should, because when you 
consider how much Texas could use $2.3 billion, as any State could, he 
ought to resist the loss of that revenue for the people of Texas.

  I think the Senator from Washington has worked hard on this 
amendment. He has listened to the objections from the other side, and 
he has sought to draft a piece of legislation that would meet those 
objections. It pays a little more than I think is necessary, but it 
would have a significant impact in containing the most unconscionable 
fees that are likely to occur in this matter. I think he has done a 
good job with it. It certainly does not mandate $4,000-

[[Page S6376]]

per-hour fees. A judge has to justify those kinds of fees in a finding. 
That should mean that young lawyers who may have just done basic 
background work, or a little research and other types things, won't be 
paid $4,000; only the very best will.
  I think it is a good step forward. We will now see who wants to pay 
these attorneys a legitimate wage for their work. This is a legitimate 
wage for their work. I expect that we would have bipartisan support for 
Senator Gorton's amendment. It is a good amendment. It is a generous 
amendment for the trial lawyers. It rewards them to a degree that is 
unheard of for their work. I don't know of any fees I have ever heard 
of at $4,000 per hour. It ought to bring this matter to a conclusion. 
Again, I don't believe we will have any legislation on tobacco that 
does not contain a limitation on attorneys' fees, and that certainly 
represents my opinion.
  I yield the floor.
  Mr. CONRAD addressed the Chair.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized.
  Mr. CONRAD. Mr. President, this is a well-intentioned amendment but 
it is a profound mistake--absolutely profound. The Senator from Alabama 
said the courts would have to justify paying the $4,000 an hour 
provided for in this amendment. We have just provided the 
justification. If you read the amendment, it says, ``The amendment sets 
the following limits on attorney's fees: $4,000 an hour for actions 
filed before 12/31/94.''
  Well, guess what? If you file an action before 12/31/94, you just hit 
the gusher, you get $4,000 an hour. And the U.S. Senate has said that 
is OK. I don't think the Senate of the United States should say OK to 
$4,000 an hour for every case filed before 12/31/94. How can we 
possibly justify that on the floor of the U.S. Senate?
  This amendment says that you get $2,000 an hour for any action filed 
between 12/31/94 and 4/1/97--$2,000 an hour. Again, you hit the 
jackpot. It is almost like playing instant lotto and you are a 
guaranteed winner, because if you filed a case before 12/31/94, you get 
$4,000 an hour, and the U.S. Senate says that is an appropriate fee. 
Well, this Senator is not going to say that is an appropriate fee, and 
this Senator is not going to say it is an appropriate fee to provide 
$2,000 an hour if you filed any time between 12/31/94 and 4/1/97--
absolutely not.
  The Senator from Washington argued persuasively on the last 
amendment, which had a $1,000 cap, that it might be too much or it 
might be too little. Now we have $4,000. Well, I can guarantee you 
that, in most cases, that is far too much. Yet, the U.S. Senate will be 
on record as saying that is an appropriate legal fee. I don't think it 
is an appropriate legal fee. As one Senator, I am not going to endorse 
that.
  Mr. SESSIONS. Will the Senator yield?
  Mr. CONRAD. Yes.
  Mr. SESSIONS. Would the Senator recognize that the language that he 
quoted starts off and says, ``attorneys' fees as approved by the court 
in such action'' and ``any attorneys' fees shall not exceed the per 
hour rate of . . .'' Then there is a set of criteria for the judge to 
consider what the hourly fee should be. I suggest that very few will 
justify reaching that rate. But whatever, it will be decided by judges 
on a case-by-case basis.
  As the Senator suggested, he believes that some cases are different. 
This allows flexibility.
  Would the Senator not agree with that?
  Mr. CONRAD. No; the Senator would not agree with that, because this 
is the exact criterion that is included in the bill with respect to 
reforming the arbitration panel decisions--the exact same criterion. I 
know what is going to happen. The courts out there are going to see 
that the U.S. Senate says that it is appropriate to bill $4,000 an hour 
if your action was filed before 12-31-94. That is what is intended--is 
the ceiling is going to become a floor. And we are going to see case 
after case where the attorneys are unjustly enriched at $4,000 an hour.
  That is exactly what is wrong with this kind of an amendment. It is 
arbitrary, it is capricious, it sets a limit that allows for unjust 
enrichment, and it will have the stamp of endorsement of the U.S. 
Senate. That is a profound mistake. We shouldn't be in the business of 
deciding what the legal fees are in any case. That is not our business. 
That is overreach. That is the kind of micromanagement that people on 
the other side of the aisle have warned us against. It is the kind of 
thing that people resent, because they know we can't possibly know the 
factual matter in each and every case that is before a court in every 
jurisdiction in this country. For us to substitute our judgment for 
State judges' determinations of what are the appropriate legal fees in 
a case is a profound mistake. We shouldn't do it.
  I go on to point out in the amendment that the Senator from 
Washington just changed his amendment. The change he made is very 
interesting. He just sent a modification to the desk that says, upon 
petition by any interested party, the attorneys' fees shall be 
determined by the last court in which the action was pending.
  Those words don't seem to really mean much. But do you know, they 
mean a lot. They mean a lot. What they mean is that in the four cases 
that have already been resolved where the tobacco industry has agreed 
to pay the attorneys, that now they would be able to come in the back 
door and challenge the fees that they already agreed to. That is what 
this language could do. This little modification was just sent so 
quietly to the desk and received no explanation. ``Any interested 
party.'' That means Philip Morris might challenge the attorneys' fees 
of the attorneys that brought the case against Philip Morris. That is a 
pretty good deal.
  That is exactly the kind of thing we shouldn't be doing. That is not 
the kind of thing we should be allowing. That isn't the kind of thing 
that should be permitted here on the floor of the U.S. Senate.
  Let me say to my colleagues who are well intended on the other side, 
to put in a stamp of approval by the U.S. Senate that $4,000 an hour is 
an appropriate legal fee is just a profound mistake. We embarrass this 
Chamber, we embarrass this Congress, by putting our stamp of approval 
and say $4,000 an hour is OK. I don't believe the Senator from Alabama 
believes $4,000--I mean, I think it is preposterous, and yet we are 
about to vote seriously on an amendment that says $4,000 an hour is OK. 
I don't think it is OK. I don't think it should be approved.
  Mr. DURBIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, here we go again.
  There are people who hate trial lawyers just intuitively and 
instinctively. I guess the fact that I used to be one before I was 
elected to the House of Representatives, I kind of take exception to 
that observation.
  But I can recall times in my legal practice when people would walk 
into my office who were literally dirt poor. They didn't have any 
money. They had been injured, or they had some claim. And, frankly, the 
only opportunity they had to go to court was if an attorney said, ``OK, 
we will take it on a contingency-fee basis. If we can win the case, 
then you pay a part of the winnings. If we don't win, you don't pay 
anything.'' Contingency fee, trial lawyers--for a lot of people, it is 
their only ticket to the courthouse.
  Who in the world can come up with $50,000 or $100,000 to pay some 
lawyer or some legal firm when they need representation? A lot of 
Americans just can't do that.
  So this is really a system of justice which gives the plaintiff a 
ticket to the door of the courthouse on a contingent basis: ``If we 
win, you pay the lawyer. If we lose, the lawyer gets nothing.''
  Take the case of the tobacco companies. Imagine, if you will, 42 
State attorneys general who said, ``We want to sue the tobacco 
companies, the largest corporations in America, the most politically 
powerful, a group that never loses a lawsuit. How are we going to do 
that?'' You can't stop the business of representing the attorney 
general of Illinois or California. The only way you can do this is by 
going to the private sector, to private attorneys, and saying to them, 
``Will you give us a contingent-fee deal here?'' In other words, ``Will 
you join the State attorneys general in suing the tobacco companies? 
And, if we win--if we win--you will be

[[Page S6377]]

paid. If we lose, you won't get anything.'' Contingency fee basis. 
Trial lawyers.

  And imagine the tobacco company executives when finally it dawned on 
them that 42 States had found these law firms around the country 
willing to take on the risk, willing to take the gamble. Was it a 
gamble, or was this a sure thing? History tells us it was the biggest 
legal gamble in the history of America. The tobacco companies had never 
lost a lawsuit--never. Yet, these law firms came forward and said, ``We 
will help the State attorneys general. We will sign on a contingency-
fee basis. Win or lose, let's see what happens.'' We know what 
happened. It ended up that the tobacco companies came to the 
realization that they couldn't win. They sat down about a year ago with 
the States' attorneys general and tried to hammer out some kind of an 
agreement. Part of that agreement has to be, ``How are we going to pay 
these attorneys? We agreed we would pay them for what they were going 
to do if we won.''
  Now come the tobacco companies and those people who have no use for 
trial lawyers to the floor of the U.S. Senate and say, ``We want to 
have a voice in this process. We want to rewrite these agreements. We 
want to decide what was fair and unfair.''
  I don't think this is a fundamentally sound amendment. I think we 
should defeat this amendment. Let me give you one basic reason why we 
should defeat this amendment: Because the critics of the trial lawyers, 
the critics of the attorneys who brought these lawsuits against the 
tobacco companies, have done it again, ladies and gentleman. They have 
come in and said it is an outrage to pay lawyers this amount of money, 
an absolute disgrace, if they are plaintiffs' lawyers, if they are 
lawyers representing people who died of cancer, if they are 
representing people in the State of Illinois who paid out millions of 
dollars in taxes. But did they put any limit whatsoever on the fees 
paid to tobacco company lawyers? Not one word.
  Take a look at this amendment. It is disgraceful for us to stand up 
here and say this is a matter of justice, that we are not going to 
allow these attorneys to be paid that amount of money, and to exempt 
the tobacco companies' lawyers. Make no mistake: In these lawsuits, 
these law firms representing tobacco companies have been raking in 
millions and millions and millions of dollars for decades. Now we know, 
because of the suit in Minnesota, for example, that there has been an 
effort to hide important documents behind the attorney-client 
privilege. We know these lawyers have been complicit in this effort. Do 
we punish them with this amendment? No, no, no, no. Our anger for 
lawyers is reserved only for those lawyers who sue tobacco companies, 
not for the lawyers who defend tobacco companies.
  Let me tell you that I think this is fundamentally unfair. It is 
fundamentally unfair for us to step in at this stage in the 
proceedings, not only because of the injustice which it does to the 
lawsuits which have been filed but because if this amendment passes, it 
applies to future lawsuits as well. Who will stand up in the future and 
tackle the billionaire giant tobacco companies with the prospect of 
limitation of legal fees of this magnitude? Four thousand dollars 
sounds so exceedingly generous until you wonder and speculate what is 
at risk here. How would a law firm decide to dedicate all of its 
resources and all of its time for an entire year or more to try to get 
to trial against the tobacco companies? What a gamble. What a risk. And 
the people who are pushing this amendment want to make certain that 
couldn't happen again. They want to close the courthouse doors to make 
sure that people who head up tobacco companies are not going to be 
intimidated by these lawsuits.
  We would not be here today on the floor of the Senate, we would not 
be discussing a tobacco bill, if it were not for the initiative of the 
State attorneys general and were it not for the cooperation of these 
private attorneys who got involved in the lawsuit.
  You hear a lot of speculation: ``You know these lawyers get paid 
billions of dollars. Isn't that too much?'' Yes; I think it is. But 
that is my judgment. The judgment in the bill says it will be made by 
arbitration panels. We will have people sit down and decide what is 
fair. And in States, they have dramatically reduced the attorneys' fees 
that would have come to these private firms with these judges' 
decisions and arbitration panels. And that will continue. That is the 
right thing to do. But for us to step up as the U.S. Senate to 
intervene in this debate and say that we know best, to say that the 
firms that came forward to have the courage to take on the tobacco 
companies should now be ignored and their agreements be ignored, their 
contracts pushed off the table, we know best here in the U.S. Senate, I 
think it is an outrage. It is an outrage for us, and it is an outrage 
for those in the future who count on this mechanism, who count on the 
opportunity to go into court and to plead their case in order to find 
justice.
  How many times in the history of this country have this Congress and 
the President failed to act and relied on the courts? So many times in 
my lifetime. I can recall the civil rights struggle. It generally 
started in the courts. It wasn't until the important cases in the 1950s 
that finally Congress could muster the courage to deal with this thorny 
issue. And the same thing is true on tobacco. I have been fighting 
these tobacco companies as long as I have been in Congress.
  I have had some victories and I have had some defeats. They are tough 
customers, and they have a lot of money. And boy do they have a lot of 
friends in the House and Senate. They found out there was one group 
they could not buy, the judicial system. They found out that when 
lawyers could come into court before a jury of peers and argue the case 
about their deadly product and what they were doing with it, they could 
not win. A year ago they threw in the towel and said, ``We are ready to 
settle. We are ready to make big changes in the way we market our 
product.''
  That never would have happened were it not for the judicial system, I 
am sorry to say. And now we have those who resent that system, the 
tobacco companies, critics of trial lawyers, who say, ``Isn't it a 
shame that this happened the way it did. We are going to rewrite 
history. We are going to change the terms for these attorneys.''
  We cannot let them do it because, ladies and gentlemen, we do not 
know where the next argument is going to be and where the next case 
will be. These were 42 cases brought on behalf of 42 different States. 
In my home State of Illinois, Attorney General Jim Ryan, a Republican, 
a man I admire for the courage in filing this lawsuit, stood up for our 
taxpayers. Michael Moore in Mississippi was the man who initiated that 
action.
  And now we come to the question, Are we going to close the door in 
the future to this opportunity? Which will be the group that wants to 
take on the tobacco companies? How will they muster the resources? How 
will they put together the lawsuit and the case law to prevail? If this 
amendment passes, we are tying their hands. We are saying to them that 
in the future you will not have the same chance as these 42 different 
attorneys general.
  That is fundamentally unfair. To do this and tie the hands of the 
plaintiffs' attorneys, the attorneys representing the people, while 
saying that the tobacco lawyers can continue to rake it in, millions of 
dollars deceiving, millions of dollars defending, that is fundamentally 
wrong. I stand in opposition to this amendment.
  We have an important bill here, a bill that can reduce the number of 
deaths in America from tobacco. It is a shame that we are diverted now 
in a battle against trial lawyers. This should be a battle against the 
tobacco company tactics that lure our children into a nicotine 
addiction, which for one out of three of them means an early grave. 
That is what this bill is really about. It is not about lawyers. It is 
about our kids. I sincerely hope my colleagues on both sides of the 
aisle will join me in opposing this amendment.
  I yield back the remainder of my time.
  Mr. CONRAD. Mr. President, I thank the Senator from Illinois for his 
really superb presentation. He makes many important points about what 
this amendment is about. I just want to direct my final remarks to 
those who may think, as I do, that some lawyers are in line for unjust 
enrichment. I tell you it makes my blood boil to hear

[[Page S6378]]

lawyers in Texas may get $2 billion. That is outrageous. That is 
unconscionable. I do not believe it is going to happen. That matter is 
on appeal.
  In Florida, when the lawyers there submitted bills like that, the 
court said it was unconscionable and told them to forget it. That is 
what every State court ought to do when presented with unconscionable 
claims by lawyers in these cases.
  I have to say to my colleagues who are thinking about voting for this 
amendment, you are going to have to be able to go back home and justify 
the Senate of the United States saying $4,000 an hour is OK. I do not 
believe it is. I do not believe you can justify going back home and 
saying, yes, I voted for an amendment that would provide $4,000 an hour 
for any case filed before 12-31 of 1994. I do not think people in my 
State would think the Senate ought to say, well, $4,000 an hour is OK 
for every case filed before 12-31 of 1994. Boy, I tell you, the best 
lawyers in my State bill about $150 an hour. And now we would be 
saying, well, in a tobacco case, if you just happened to file before 
this magical date of 12-31-94, you get $4,000 an hour. And the Senate 
has said that is OK. Boy, I tell you, I think that would be a profound 
mistake.

  Let me just say the Senator from Illinois is also correct; there are 
circumstances where some of the limits are not enough. The $500 an hour 
which is provided for in this amendment for cases filed after 6-15 of 
1998 may be too little. If we discover, going through the documents, 
that there is some new legal theory to take on the tobacco industry but 
we say to firms across America you are limited to $500 an hour when you 
do not have any idea whether you are going to win or not and you may 
have to put millions of dollars into making the case and then the 
Senate, in its wisdom, says you are limited to $500 an hour, that is 
probably too little. What law firm is going to take the case?
  And then, as the Senator from Illinois has pointed out, interestingly 
enough, this amendment applies to one set of lawyers, the lawyers for 
the people who are hurt by these products. The lawyers for the families 
of somebody who has contracted cancer or has lung disease or has heart 
disease, they are limited but the tobacco industry lawyers are not. And 
the bizarre thing is the limits that are put on here may well be far 
too much. I really cannot see justifying $4,000 an hour. I don't know 
how that gets justified. And $2,000 an hour if you filed between 12-31-
94 and 4-1-97; $1,000 an hour for actions filed before 4-1-97 and 6-15-
98, those are pretty fancy numbers where I come from. So I just think 
this amendment is a mistake and ought to be rejected by our colleagues.
  I thank the Chair and yield the floor.
  Mr. McCONNELL. Mr. President, I rise today to speak, yet again, on 
the issue of limiting tobacco trial lawyer fees to a reasonable level.
  Unfortunately, the Senate has repeatedly refused to limit the fees to 
a reasonable wage. And, now we are forced to consider an amendment to 
allow tobacco trial lawyers to earn as much as $4,000 an hour!
  But--Mr. President--$4000 an hour is better than the alternative and 
it's about all we have left. We've tried to cap the fees at a 
reasonable level, and that's been rejected. A cap of $4000 an hour is 
our last alternative. If we fail to pass the Gorton amendment, then we 
will be allowing attorneys to make as much as $88,000 an hour!
  Let me remind my colleagues of how we got to $4000 an hour. First, we 
tried to limit the fees to $250 an hour--nearly 50 times the minimum 
wage. This attempt was soundly rejected by the Senate. $250 an hour was 
simply not enough for the trial lawyers.
  So, Senator Faircloth, Senator Sessions and I got together to regroup 
and try again. We discussed how much is enough for the trial lawyers? 
$500/hour? $750/hour?
  We debated these amounts--and frankly--it turned our stomachs to 
think about the federal government approving a bill to give tobacco 
trial lawyers $500 an hour or $750 an hour. Especially when you 
consider that the average lawyer in America only earns about $48 an 
hour and the average doctor only earns about $100 an hour.
  But, we knew that it would be difficult to get the friends of the 
trial bar to agree to any limit at all. So, we held our noses and 
introduced a new amendment to cap the lawyer fees at $1000 an hour! 
Surely, $1000 an hour would be considered a fair wage for the trial 
bar.
  Mr. President, was $1,000 an hour enough for the friends of the trial 
bar? No, absolutely not. They needed much more. They wanted to maintain 
the status quo. They wanted the Senate to keep the National Trial 
Lawyer Enrichment Bill intact.
  The friends of the trial bar wanted us to continue to allow: lawyers 
in Minnesota to earn $4,500 an hour; lawyers in Florida to earn $7,000 
an hour--assuming of course that these Florida lawyers worked 24 hours 
a day for three-and-a-half years; lawyers in Mississippi to earn 
$10,000 an hour; and lawyers in Texas to earn $88,000 an hour.
  So, we tried to cap the fees at $1000 an hour and we lost 50-45. We 
got closer, but still not enough.
  So Senator Gorton has put together a comprehensive outer-limits 
amendment that says--$4,000 an hour is better than $88,000 an hour. 
Surely, we can get 51 Senators to agree to that notion.
  Now, let me take a minute to address two or three issues raised by 
the proponents of unlimited billionaire fees for trial lawyers.
  Billionaire Lawyer Argument No. 1: ``We're just businesspeople, like 
anybody else'':
  First, Senator Daschle argued a few days ago that the Senate should 
not limit plaintiff's lawyer fees because ``[a] lawyer is a legal 
businessperson.'' So, Senator Daschle is effectively arguing that we 
should no longer see lawyers as lawyers, but rather we should see them 
as businessmen and venture capitalists--a few good men looking to make 
a buck.
  With all due respect, I could not disagree more. Lawyers are not 
supposed to be businessmen and businesswoman out to make up a buck. It 
is this type of make-a-buck-at-any-cost mentality that drives so much 
wasteful and frivolous litigation in our society. Too often, litigation 
is about enriching the lawyer, not compensating the client.
  Mr. President, every first-year law student is taught that he or she 
is not some businessperson out to make a buck. I remember my days in 
law school where our professors taught us that we were supposed to be 
fiduciaries--representing the interests of our client, not our own 
selfish, profit-making interests.
  In fact, legal ethics prohibit attorneys from charging fees that are 
not ``reasonable.'' As Professor Lester Brickman explained in today's 
Wall Street Journal: ``If the standard of reasonableness has any 
meaning, it is surely violated by fees of tens of thousands of dollars 
an hour?''
  Moreover, Professor Brickman concluded:

       The public has a compelling interest in preserving legal 
     ethics, including th[e] rule that fees must be reasonable. 
     The higher the fees tort lawyers get, the greater the share 
     they take of injured clients' recoveries. Moreover, the 
     higher the fees, the more tort litigation and the more costs 
     that are imposed on society. The civil justice system, which 
     generates the fees that Mr. Daschle does not want curbed, 
     exists to serve citizens. Lawyers are not businesspeople; 
     they are professionals entrusted with the people's 
     businesses.

  So, Mr. President, every lawyer in America knows that he or she has 
no constitutional right to charge excessive and unreasonable fees. We 
must pass the Gorton amendment as our last best hope of ensuring that 
the fees get somewhere near reasonable and rational.
  Billionaire Lawyer Argument No. 2: ``Private Contracts Can Never Be 
Altered'':
  Second, the proponents of unlimited lawyer fees argue that the 
federal government cannot interfere with private contracts in any way, 
shape or form.
  This argument is absolutely nonsensical. The tobacco bill is full of 
provisions that may force tobacco companies to abrogate contracts with 
retailers and advertisers--among others. The Supreme Court has made 
clear that ``Congress may set minimum wages, control prices, or create 
causes of action that did not previously exist.''

  Furthermore, the Court has made clear that private parties may not 
preempt governmental action by simply entering a contract. Can you 
imagine if every time that we passed a new minimum wage law, we 
exempted all employers who have a previous contract

[[Page S6379]]

with their employees to pay at a level lower than the new minimum wage? 
Can you imagine the outcry in the Senate if we exempted private parties 
from a new minimum wage law whenever those parties had a contract 
``preempting'' Congressional action?
  I also find it curious that my colleagues on the other side of the 
aisle argue on the one hand that the right of contract is inviolate and 
above Congressional action--yet on the other hand, argue that the right 
of contract may be violated by some unknown arbitration panel.
  So, the friends of plaintiffs bar argue that an unknown arbitration 
panel may modify contracts, but the United States Senate--the elected 
representatives of the people--may not modify fee contracts.
  Which one is it? Can we adjust these contracts or can we not adjust 
contracts? Mr. President, we can't have it both ways. We can't say out 
of one side of our mouths that the fees and contracts can be adjusted 
by an arbitration panel, and then say out of the other side of our 
mouth that the fees and contracts are a done deal and may not be 
adjusted by Congressional action.
  The bill as currently written says that all types of contracts can be 
adjusted by this sweeping federal regulatory bill. In particular, the 
bill says that lawyer fee contracts can be adjusted by an arbitration 
panel.
  So, frankly, I am tired of hearing that contracts cannot be adjusted 
and that fees cannot be made reasonable. If we are giving the 
arbitration panel the ability to adjust contracts and fees, then it is 
perfectly consistent to establish a fee ceiling and a frame of 
reference for adjusting these contracts and fees.
  Billionaire Lawyer Argument No. 3: ``$4,000 Is Too Generous'':
  I was amazed this morning to hear those who carry the water for the 
trial bar arguing that $4,000/hour is too much money for their friends 
to earn. Yes, Mr. President, you heard me right. Some of the friends of 
the trial bar are now arguing that $4,000 an hour is too much money for 
the trial bar.
  So, let me get this straight. $250 an hour is not enough money for 
the lawyers. But, $4,000 an hour is too much money for the lawyers.
  What about something in between $250 and $4,000? Oh, say, $1,000 an 
hour. What about $1,000 an hour as a midpoint? Oh wait a minute, the 
Senate rejected that amount to.
  So $250 an hour is not enough. $4,000 an hour is too much. And, 
$1,000, I suppose, just doesn't feel right.
  If $4,000 an hour is too high, then what is $88,000 an hour?
  I'll tell you what $88,000 an hour is--it's how much money we are 
going to allow the attorney general to pay the lawyers in Texas if we 
don't pass the Gorton amendment.
  We must pass the Gorton amendment. It deals with every possible 
permutation and takes into account any variation in degrees of risk 
assumed by the plaintiffs' lawyers.
  It provides a cap of $4,000 an hour for all the attorneys who suited 
up and led the fight to kill tobacco in the earliest stages of the war.
  It provides a cap of $2,000 an hour for those who signed up when the 
war was coming to a close in the national settlement last spring and 
summer.
  It then provides a cap of $1,000 an hour for any lawyer who ran onto 
the battlefield after the settlement was signed, and a cap of $500 an 
hour for all lawyers who will rush straight to the courthouse as soon 
as we pass this fee cap.
  Senator Gorton has covered the waterfront here. I hope that we can 
pass this amendment as the last best hope for a fee cap.
  Mr. FAIRCLOTH. Mr. President, I am shocked that the Senate rejected 
two prior attempts to limit these attorneys' fees, and I am amazed that 
we are here to debate whether a four thousand dollar per hour cap is 
enough for the trial lawyers.
  Over the past few days, a number of constituents asked me how we 
could possibly condone paying these lawyers more than 250 dollars per 
hour, which was the rate in my original amendment.
  Where I come from, Mr. President, 250 dollars is an incredible amount 
of money. That is a weekly wage for a lot of working people. These are 
the same working people, I might add, whose taxes we are raising to pay 
these lawyers' fees. This bill is an unparalleled transfer of wealth 
from the poor to the super-rich.
  My constituents were upset about 250 dollar per hour and 1000 per 
hour payments to lawyers, but I explained that the Texas lawyers expect 
to make ninety-two thousand dollars per hour, and my constituents 
enthusiastically agreed that these caps were better than ninety-two 
thousand dollars per hour. The Texas lawyers have already been paid 
ninety million dollars and expect more than two-point-two billion 
dollars more.
  In fact, the Attorney General of Texas is so intent on paying them 
their two-point-three billion dollars in fees that he filed a lawsuit 
against the Governor because the Governor tried to intervene on behalf 
of the taxpayers who will foot the bill. Yes, the taxpayers, because 
the Attorney General admitted to the New York Times on May 27 that part 
of the attorneys' fees will come from the Federal Government.
  It is a betrayal of the American people, the taxpayers, to raise 
their taxes to pay lawyers four thousand dollars per hour. That's more 
than most families make in a month. That is outrageous. Working 
Americans--people scraping to pay the mortgage--being asked to pay for 
more luxury houses and yachts for billionaire trial lawyers. It's an 
abuse of the taxpayers. Yes, the taxpayers, that's what the Texas 
Attorney General said.
  It is important to note that this is a cap, not a flat fee, so few 
lawyers should expect to be paid at the top end of these categories. 
The amendment limits the number of cases that fall within the top 
category to just a handful. That is a critical distinction, Mr. 
President, and one that makes this amendment more attractive to those 
of us shocked by these numbers.
  However, as the Senate rejected my previous two amendments to limit 
fees, I have no alternative but to vote for these higher dollar 
numbers. These outrageous numbers are testament to the strength of the 
ultimate Washington special interest, the special interest most 
inclined to put personal interest above national interest, the trial 
lawyers.
  Mr. President, I will vote for this amendment, but I do so only 
because some limitation is better than no limitation on these predatory 
and, I might add, unethical attorneys' fees payments.
  Mr. LEVIN. Mr. President, I cannot support the Gorton amendment. This 
amendment would create a complicated, bureaucratic and arbitrary set of 
criteria for establishing payments to the plaintiffs' lawyers while 
leaving the fees of the tobacco companies' lawyers without restriction. 
The amendment would set forth unusually high hourly amounts for 
attorneys' fees which could lead to higher payments. The underlying 
legislation establishes a preferable process by setting up a three-
person arbitration board to resolve disputes regarding the attorneys' 
fees. The board would have a representative of the plaintiff, a 
representative of the attorney, and a third party chosen jointly by 
those two arbitrators.
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER (Mr. Sessions). The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, as I understand, we have an order for 
adjournment at 12:30?
  The PRESIDING OFFICER. The Senate is to adjourn at 12:30.
  Mr. KENNEDY. I ask unanimous consent that we might extend that for 7 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. I thank the Chair.
  Mr. President, as Senator Durbin and Senator Conrad have pointed out, 
the current amendment is not really about saving money for the States. 
The amendment is one more backhanded attempt to protect the tobacco 
industry. It is the third amendment offered on attorneys' fees. The 
prior two were rejected by a substantial majority. It is a transparent 
effort to distract attention from the enormous public health issues on 
which the American people want us to focus. Let's defeat this amendment 
and turn our attention to stopping youth smoking.
  The Senate has debated this landmark youth smoking reduction bill for

[[Page S6380]]

a month. Each of us has had an ample opportunity to state our views. 
The Senate should commit to vote on final passage this week. We owe it 
to the children who are being entrapped into a life of addiction and 
premature death by the tobacco industry every day.
  The opponents of this legislation have used every parliamentary tool 
at their disposal to extend the debate and divert attention to an 
unrelated issue. They want to talk about every subject but the impact 
of smoking on the Nation's health. However, the real issue cannot be 
obscured by their verbal smokescreen. It is time for us to move from 
talking to voting. Each day that the opponents delay final Senate 
passage of the bill, 3,000 more children begin to smoke and a third of 
these children will die prematurely from lung cancer, emphysema, heart 
disease, and other smoking-caused illnesses.
  Each day that we delay, the price of a pack of cigarettes will 
continue to be affordable to the Nation's children and more and more of 
them will take up this deadly habit. And each day that we delay, 
tobacco will continue to target children with billions of dollars in 
advertising and promotional giveaways that promise popularity, 
excitement, and success for young men and women who start smoking. Each 
day that we delay, millions of nonsmokers will be exposed to secondhand 
smoke. According to the Environmental Protection Agency, secondhand 
smoke causes 3,000 to 5,000 lung cancer deaths each year in the United 
States--more than all other regulated hazardous air pollutants 
combined. Secondhand smoke is also responsible for as many as 60 
percent of cases of asthma, bronchitis, and wheezing among young 
children.

  Each day that we delay, tobacco will remain virtually the only 
product manufactured for human consumption that is not subject to 
federal health and safety regulations, despite the fact that it causes 
over 400,000 deaths a year.
  Preventing this human tragedy should be the Senate's first order of 
business. With so much at stake for so many of our children, it is 
truly irresponsible for the opponents of this legislation to practice 
the politics of obstruction. Let the Senate vote.
  The public supports this bill overwhelmingly, despite the tobacco 
industry's extravagantly funded campaign of misinformation.
  A new poll released this morning shows that the American people want 
the McCain bill to pass by a margin of two to one; 62 percent support 
the legislation, while only 31 percent oppose it. The American people 
can see through the tobacco industry's smokescreen, why can't the 
Senate?
  The same survey shows that the public knows who will be responsible 
if the McCain bill does not pass. By a 2\1/2\ to 1 margin, the American 
people say the Republicans in Congress will be most responsible if the 
bill dies. By a similar margin, voters say they would be more likely to 
vote for a candidate who supported the McCain bill, and less likely to 
vote for a candidate who opposed it.
  This bill will do an effective job of providing that protection for 
our children. It will save 5 million of today's children from a 
lifetime of addiction and premature death. It contains a series of 
strong provisions that have withstood repeated attempts to weaken them:
  It contains a substantial price increase to keep children from 
starting to smoke.
  It gives the FDA strong authority to regulate tobacco like the drug 
it is.
  It has tough restrictions on advertising, to stop tobacco companies 
from cynically targeting children.
  It contains a strong lookback provision that requires large 
additional payments by tobacco companies if they fail to meet the 
targets in the bill for reducing youth smoking in the years ahead.
  It gives no immunity from liability to the tobacco companies for the 
illnesses they have caused.
  We can reach a reasonable accommodation on how best to protect 
tobacco farmers, and how best to use the revenues obtained from the 
tobacco industry. There is no excuse for further delay. The Senate 
should pass this bill this week, and send it to the House. Senators who 
refuse to act will pay a high price for abdicating their 
responsibility.
  Mr. President, I yield the floor.
  Mr. GORTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Washington.
  Mr. GORTON. Mr. President, I ask unanimous consent that we postpone 
the recess for 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GORTON. Mr. President, in an informal discussion with the Senator 
from North Dakota, each of us has expressed a hope that we may be able 
to vote on my amendment shortly after the recess and perhaps after the 
official photograph of the Senate. I will simply summarize arguments 
that the Presiding Officer has made so eloquently on each of the 
amendments on this subject that has been before us and that I made 
earlier.
  It does seem to me curious that the two opponents of the amendment 
made dramatically opposite statements in opposing this amendment. The 
Senator from North Dakota said in spite of the clear language of the 
amendment, that instead of a ceiling of so many thousands of dollars an 
hour, depending on when the litigation began that is the thrust of my 
amendment, that, in fact, it will be considered a floor.
  One can take that position only by not reading the amendment and all 
the considerations that are included in it, but he was afraid that it 
would mean in many cases we would be paying too much.
  The Senator from Illinois felt it was terrible to limit lawyers even 
to $4,000 an hour, because many of them had made agreements under which 
they would get more. And indeed, as the Presiding Officer said in 
response to a question from me, we already have one example of one set 
of attorneys already being awarded well over $2 billion for 
representing one State, the State of Texas, in litigation of this sort 
and the attorney general of Texas bitterly opposing the attempt by the 
Governor of Texas to get a more reasonable set of attorneys' fees.
  We want to end those debates, and the adoption of this amendment will 
end those debates, because it will provide a ceiling, I think a highly 
reasonable ceiling. In fact, I had some of my colleagues tell me 
privately that they don't like my amendment because it is too much. 
They can't explain even these amounts. In the abstract, that, of 
course, is the case, but as against $2.3 billion, as against many of 
the contingent fee agreements, one can explain these limitations and 
they are just that; they are ceilings and not anything else.
  For those who feel that the sky should be the limit, that no matter 
how many billions of dollars attorneys have contracted for, no matter 
how much they have pled with us to pass this legislation, no matter how 
much minute regulation they are asking us to impose on every aspect of 
the tobacco industry--the farmers, the manufacturers, the wholesalers, 
the retailers--more regulation than the Congress of the United States 
has ever imposed on any other legal business in history, that, 
nonetheless, one aspect of the contracts between States and other 
plaintiffs and their lawyers should be entirely free of any concern on 
our part whatsoever.
  Mr. President, I just can't see how anyone can justify this bill, 
hundreds of pages of detailed regulations, and say nothing about 
attorneys' fees other than an arbitration in which the only people 
represented are the plaintiffs' lawyers and the plaintiffs who have 
signed the contracts in the first place. No, that is not balance; that 
is not fair.
  As the Presiding Officer knows, I disagreed with his previous 
amendment because it seemed to me that there were certain circumstances 
under which it was too low. I think we ought to do justice to lawyers 
who have done an extraordinary job, who have in some cases come up with 
new theories and have been successful with those theories, but I think 
we have the right to say enough is enough. This amendment, Mr. 
President, says enough is enough. And in the future, when tobacco 
litigation will be very, very easy, a much smaller enough is going to 
be enough.
  Probably the long-term result of this amendment would be not 
dissimilar in the total amount of attorneys' fees paid from the 
Faircloth amendment that came so close to adoption late last week. This 
amendment, however, would see to it the lion's share of those 
recoveries would go to the attorneys who actually earned them and not 
those who have gotten in very late.

[[Page S6381]]

  I commend this to my colleagues, both Republicans and Democrats, as 
being reasonable and as being something that should be a part of any 
overall pattern that we pass, and that is to put us at the heart of the 
whole debate over tobacco. If we can regulate everyone else, we can 
regulate the attorneys. We do it fairly in this amendment, and I trust 
as soon as we come to an agreement on the time it will be voted on, 
that it will be adopted and we can go on to other important 
developments in this bill.

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