[Congressional Record Volume 145, Number 127 (Monday, September 27, 1999)]
[Senate]
[Pages S11466-S11470]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        FEDERAL TOBACCO LAWSUIT

  Mr. HATCH. Mr. President, never in my years of service to the people 
of Utah and this country have I witnessed an administration more 
inclined to twist, deform, or ignore, the rule of law than the Clinton 
administration. The past 7 years are replete with exploits of legal 
manipulation. Indeed, the legacy of the administration may prove to be 
that its most significant exploits--infamous or otherwise--were 
accomplished by warping the law for blatant political purposes. Here 
are just a few of the most notorious examples: Attorney General Reno 
both misapplied and ignored the Independent Counsel Act in order to 
prevent the appointment of an independent counsel in the campaign 
finance investigation; the 1996 election fundraising scandal where soft 
money prohibitions were ignored and foreign donations were illegally 
and eagerly accepted; fundraising from the White House--it was 
deplorable the Escalante Proclamation, where a huge chunk of Southern 
Utah was effectively annexed by the Federal government without any 
prior consultation with Utah officials, to my knowledge--certainly not 
any elected officials; the misuse of FBI files by the White House--the 
myriad proclamations of Executive Orders as a vehicle to skirt the 
authority of Congress; and just to mention one more, the violation of 
the Vacancies Act to hold in office individuals lacking Senate 
confirmation.
  This list does not even include the myriad events, dissemblance, and 
contempt for the law and our courts, which brought us the impeachment.
  Given this record, I must confess that I wasn't shocked to learn that 
the Department of Justice may have misled Congress in sworn testimony 
and then filed suit against the tobacco industry.
  Last Wednesday, the Department of Justice filed in Federal district 
court a multibillion dollar suit against the tobacco industry seeking 
recoupment of losses to Federal health care programs. After reviewing 
the 131-page complaint, I have serious reservations concerning several 
key counts in the complaint. Moreover, I am skeptical of the entire 
lawsuit.

  It is well known around here that I am no friend of tobacco use, nor 
an apologist for the tobacco industry. Indeed, I have never used 
tobacco products in my life and am opposed to tobacco use. I never 
inhaled or chewed tobacco.
  Along with my cosponsor, Senator Feinstein, I worked hard last 
Congress to pass legislation that would have gone a long way in helping 
Americans to kick the habit and in reducing teen smoking. The 
legislation required the tobacco companies to pay over $400 billion to 
settle existing lawsuits--$429 billion, to be more accurate. In return 
for the settlement of these lawsuits, the companies would have stopped 
targeting children and would have funded smoking cessation efforts.
  While this measure has yet to pass, I strongly believe that the 
fairest and most effective solution to the use of tobacco is omnibus 
legislation such as the Hatch-Feinstein bill rather than relying upon 
legally dubious lawsuits. Litigation cannot effectively deal with 
important public policy problems, such as what measures the industry 
must take to reduce youth smoking or what effect will rising prices 
have on the black market for cigarettes.
  Given my skepticism about the administration's fidelity to the rule 
of law, I have several questions concerning the Federal lawsuit. The 
first question I have is, What is the administration's motivation here? 
It has been reported that many attorneys at the Department of Justice 
opposed filing of a lawsuit because the Federal Government did not 
possess a valid cause of action or claim against the tobacco companies.
  Indeed, Attorney General Reno, at the April 30, 1997, hearing before 
the Judiciary Committee, testified that no Federal cause of action 
existed for both Federal Medicare and Medicaid claims. I disagree with 
the assertion made by David Ogden, Acting Assistant Attorney General 
for the Civil Division and the current nominee for that post, that 
Attorney General Reno was referring only to State actions. Ms. Reno's 
contention that no Federal cause of action existed was made clearly in 
response to a question by Senator Kennedy, who asked whether the 
Federal Government could recoup both Medicare and Medicaid payments.
  It was only after President Clinton, in his State of the Union 
Address in January, called for a suit against the tobacco industry that 
the Department of Justice changed its tune and, presto, announced that 
a legitimate cause of action may exist.
  I have been criticized in the past for saying that the politically 
minded and partisan White House, and not the Attorney General, is in 
reality running the Department of Justice. In the case of the Federal 
tobacco litigation, it appears once more that the White House is 
directing the activities of the Department of Justice for political 
ends. This lawsuit is a horrible precedent that, if it continues, will 
erode the liberty of the American people. Here again, the rule of law 
is apparently being replaced by the rule of the politically correct and 
expedient.
  I urge my colleagues to read the fine story appearing in last 
Friday's Wall Street Journal entitled ``Justice Reverses: Lobbying 
Effort Wins Turnabout On Tobacco Suit.''

[[Page S11467]]

  This story chronicled the change in the Department's position 
concerning the viability of the Federal tobacco suit. The story 
demonstrated that the Department's attorneys were skeptical about a 
Federal lawsuit. It also established that the Department brought suit 
only after pressure from the White House and outside lobbyists, who 
apparently were paid by an outside consultant for their efforts to help 
convince the Department to change its viewpoints.
  I ask unanimous consent to have this article printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

             [From the Wall Street Journal, Sept. 24, 1999]

 Tobacco--Justice Reverses: Lobbying Effort Wins Turnabout On Tobacco 
                                  Suit

          (By David S. Cloud, Gordon Fairclough and Ann Davis)

       Washington.--On a rainy day in January of this year, a 
     group of high-profile academics and lawyers with experience 
     in the tobacco wars trooped into a conference room filled 
     with dour Justice Department officials to make a case for 
     filing a federal lawsuit against the tobacco industry.
       The prosecutors were dubious. ``The meeting was tense,'' 
     says G. Robert Blakey, a Notre Dame law professor and member 
     of the group, which some called the Tiger Team. ``You could 
     palpably feel the hostility in the room.''
       But this week the Justice Department made a startling 
     turnabout. On Wednesday it filed a massive civil lawsuit in 
     federal court here charging that major tobacco companies 
     carried on a 45-year campaign of deception that obfuscated 
     the risks of smoking and drove up government health-care 
     costs. The suit is potentially the biggest threat yet against 
     the already beleaguered industry. It is also a major test of 
     Attorney General Janet Reno's Justice Department.
       The story of how the department overcame its doubts is a 
     tangled one, involving pressure on the department from 
     several directions at once--from the White House, Congress 
     and plaintiffs' lawyers involved in state suits against the 
     industry.
       Inside the department, an institutional reluctance to take 
     on a case involving untested legal theories and an industry 
     sure to wage a bruising fight slowly fell away as key 
     officials realized that they had the makings of a case, 
     albeit a difficult one.
       The effort to persuade the department to change its mind 
     began over a year ago, following the collapse of efforts to 
     pass sweeping federal legislation that would have broadened 
     regulatory oversight of tobacco companies and settled the 
     state cases. Mississippi plaintiffs' attorney Richard Scruggs 
     called top Clinton domestic-policy aide Bruce Reed at the 
     White House and volunteered to represent the federal 
     government free in an antitobacco case.
       ``They were excited about it,'' Mr. Scruggs says, and were 
     looking for ways to bring the industry back to the 
     negotiating table before the eventual settlements with all 
     the states. He had several meetings with Mr. Reed and others 
     at the White House. But the White House was having trouble 
     sparking interest at Justice, according to administration 
     officials.
       The biggest obstacle was Frank Hunger, another 
     Mississippian, who headed the department's civil division, 
     which would have handled the case. Mr. Hunger had been 
     married to Vice President Al Gore's sister, a smoker who died 
     of lung cancer. Advocates of a lawsuit considered him a 
     natural ally, but it turned out that Mr. Hunger and his top 
     aides were dubious that the federal government had a strong 
     statutory basis to sue the industry.
       In a meeting with Mr. Scruggs, Mr. Hunger was cordial, but 
     said: ``My lawyers are telling me we can't do it,'' according 
     to Mr. Scruggs. Mr. Scruggs wrote a memo, to address their 
     concerns, but says he got no response. Mr. Hunger declined to 
     comment.
       Mr. Scruggs and his allies had a strong motivation to get 
     the federal government involved. Some of the lawyers had 
     represented states in suits against the industry and were 
     hoping to see those settled, in part so they could collect 
     legal fees. They thought the industry would be more likely to 
     settle if it faced the combined weight of the state suits and 
     the federal government.
       During the summer and fall of 1998, they worked other 
     angles in hopes of persuading the Justice Department. They 
     met with Mr. Reed and assistant White House counsel Bruce 
     Lindsey to brainstorm.
       Then, later in the autumn, Mr. Scruggs says, he got a call 
     from Sen. Kent Conrad (D., N.D.) informing him that Senators 
     Conrad, Edward Kennedy (D., Mass.) and Bob Graham (D., Fla.) 
     were interested in getting him to do a federal case. To 
     persuade Ms. Reno that her staff was wrong, Mr. Scruggs 
     assembled what he called the Tiger Team of Mr. Blakey; 
     professors Laurence Tribe and Einer Elhauge of Harvard Law 
     School; Jonathan Massey, a Washington lawyer; and Kim Tucker, 
     a lawyer then on leave from the Florida attorney general's 
     office. He estimates that he paid them a total of about 
     $250,000 for their efforts.
       Inside Justice, interest in tobacco was building anyway. 
     Mr. Hunger announced his intention to leave at the end of 
     1998. In December, Ms. Reno made the decision, which was kept 
     confidential, to move forward with the lawsuit, aides said. 
     She designated David Ogden, who succeeded Mr. Hunger, to put 
     together the team. It included William Schultz, a former 
     Food and Drug Administration official and onetime aide to 
     tobacco critic Henry Waxman, a Democratic congressman from 
     California.
       Many career lawyers in the department remained skeptical, 
     but President Clinton surprised them by announcing in his 
     State of the Union address to Congress in late January that a 
     suit was in the works.
       Working in strict secrecy, 15 Justice Department lawyers 
     reviewed thousands of pages of internal industry documents 
     unearthed in state lawsuits. Roberta Walburn, an outside 
     lawyer who represented Minnesota, was hired to help sift 
     through the evidence and discuss legal theories. One shift of 
     Justice Department lawyers worked by day, another by night.
       Other outsiders were rebuffed. Ms. Tucker, who worked with 
     the Scruggs team, said she had trouble getting her calls 
     returned. She says a Justice Department attorney even told 
     her: ``At some point, outside assistance becomes a hindrance. 
     We at Justice will decide what, if anything, is in the 
     interest of the United States.''
       Ultimately, the Justice Department decided on a bold use of 
     the Racketeer Influenced and Corrupt Organizations statute, 
     which permits the government to go after profits derived from 
     fraud.
       Ms. Reno made the final call to go forward on Tuesday, the 
     day before the suit was filed, a Justice official said. She 
     then telephoned the White House and informed John Podesta, 
     Mr. Clinton's chief of staff.
       For President Clinton, the suit holds out the possibility 
     of winning far-reaching restrictions in the marketing and 
     advertising of cigarettes, a legacy he has sought early in 
     his first term.
       But that is by no means assured. Tobacco lawyers plan to 
     make a concerted push to have the suit dismissed, on the 
     grounds that the government has no statutory authority to 
     combine millions of individual smokers' claims into a single 
     cost-recovery suit. Also, the industry says the RICO claims 
     seeking ill-gotten profits are unwarranted against a legal 
     industry.
       The Justice Department's increasing interest in a civil 
     case coincided with the collapse of its massive five-year 
     criminal investigation of the industry. The case had once 
     seemed promising. But last year, the federal appeals court in 
     Richmond, Va., ruled that the Food and Drug Administration 
     didn't have the authority to regulate tobacco companies. 
     Prosecutors became worried they couldn't charge companies 
     with making false statements about alleged nicotine 
     manipulation to an agency that had no authority over them.
       There were other setbacks, too. Brown & Williamson, a unit 
     of British American Tobacco PLC, succeeded in convincing the 
     judge overseeing grand-jury matters to deny the government 
     access to documents the company said were privileged. And 
     several Philip Morris Cos. scientists who were granted 
     immunity in exchange for their testimony revealed little to 
     the grand jury, say people with knowledge of their testimony.
       The tobacco industry's jubilation didn't last long. Philip 
     Morris Senior Vice President Steven C. Parrish says an 
     industry lawyer had received assurance from a senior White 
     House official several months ago that a lawsuit wouldn't be 
     filed without the industry getting a chance to make a final 
     presentation. But on Tuesday night, Mr. Parrish says, he 
     learned of the impending lawsuit from reporters.

  Mr. HATCH. Another question I have is, Why wasn't Congress consulted? 
Months prior to the filing of the lawsuit, I had been attempting to 
ascertain on what legal theories the Department may base a lawsuit 
against the tobacco companies, but the Department has refused to share 
the information, even though the Department has asked for an additional 
$20 million to finance the suit. I assured them that the American 
people and the Congress will want to know what they are paying for. 
Congress is not in the habit of writing blank checks, and, in the 
absence of a straight answer, Congress appropriately refused the 
additional monies.
  Notwithstanding the clear position of Congress, I learned of the 
filing of the suit from the newspapers. This is particularly galling 
since the Acting Assistant Attorney General for the Civil Division and 
the nominee for that office, David Ogden, in written responses dated 
September 2 to my questions concerning the possible suit against the 
tobacco industry, wrote that the Department had not even decided 
whether to file the suit or on what legal theories to pursue any 
projected litigation. He stated at that time:

       The Department is currently in active preparation for this 
     litigation, and we are in the process of making decisions on 
     whether it will be filed and, if so, based on what legal 
     theories.

  Now, less than 3 weeks later, the full-fledged suit has been filed.

[[Page S11468]]

  I have yet another question. Does the Department of Justice have any 
chance of prevailing on the merits? The Department seeks to ``recoup'' 
the cost of medical care for treatment of tobacco-related illnesses for 
those on Medicaid, but the injury claimed by the Federal Government may 
be questionable. The nonpartisan Congressional Research Service 
recently issued a study which concluded that tobacco use imposes no net 
cost to the Federal Government. Indeed, the Federal Government receives 
approximately $6 billion a year in tobacco tax revenue. Moreover, it is 
simply absurd for the Government to seek recoupment when it has been a 
vigorous partner with the tobacco industry in promoting tobacco use.
  From the late 1960s to the late 1970s, the Federal Government worked 
hand in hand with the tobacco industry to develop so-called ``safe'' 
cigarettes. Until 1974, the Government provided free cigarettes in C 
rations to servicemen.
  Furthermore, cigarettes continue to be sold at substantially 
discounted rates at military post exchanges. In 1997, the Department of 
Veterans Affairs blocked claims by veterans for tobacco-related 
illnesses, contending that these individuals should not be covered 
because they were responsible for their individual choices and the 
health problems that resulted from those choices.
  Of course, the Federal Government yearly subsidizes tobacco growing. 
Perhaps the public interest groups should sue the Federal Government, 
which authorized and fostered the growing of tobacco and the 
manufacture and sale of tobacco products. Could one not argue that the 
Government was at least a joint tort-feasor under these circumstances? 
Furthermore, it is preposterous for the Federal Government now to claim 
that it did not know of the risks of tobacco use.
  Since 1964, the Government has issued Surgeon General reports that 
warned consumers of the dangers of tobacco use. Since 1966, the 
Government has required warning labels on cigarette packs. Indeed, 
everybody not on Mars for the past few decades has known that using 
tobacco can be harmful.

  Besides this hypocrisy and the difficulty in seeing how the Federal 
Government has been harmed, I question the veracity of at least two 
main counts of the complaint. These involve alleged violations of the 
Medical Care Recovery Act, known as MCRA, and the Medical Secondary 
Payer Provisions, or MSP. The Department of Justice contends that these 
two statutes create an independent cause of action for the Federal 
Government to recover Medicaid benefits for tobacco-related illnesses.
  Let me point out that the U.S. Supreme Court, in U.S. v. Standard 
Oil, in 1947, held that, in the absence of a statute, the Federal 
Government does not possess the independent right of action to recover 
the medical costs of servicemen. It was in response to Standard Oil 
that Congress passed the MCRA in 1962 and MSP in 1984. But these 
changes to Federal law were limited and discrete in scope.
  For instance, MCRA allows the Federal Government to independently sue 
to recover the cost of medical treatment given to military service 
personnel, veterans suffering from disabilities unrelated to service, 
and other government workers who received medical help but were injured 
by negligent third parties. It does not apply to all Medicaid patients 
nor does it appear to allow the aggregation of all the individual 
claims in one massive lawsuit, which is what the Department of Justice 
has done here. Besides aggregating such claims, liability could be 
proven only through statistics, but I believe a trial based on 
statistics would be unconstitutional.
  Furthermore, MSP allows only for suits against insurance companies 
providing liability insurance to tort-feasors, but not against the 
tort-feasors themselves. The MSP cause of action does not apply because 
the tobacco companies are in no way acting as insurers of their 
products.
  I am still studying the other causes-of-action sounding in violations 
of the Federal Racketeer Influenced and Corrupt Organization law, 
better known as RICO, and State civil fraud statutes. But as a 
preliminary matter, I have serious doubts about their legal viability. 
RICO, for instance, was enacted to deal with organized crime 
syndicates. Here we are talking about a legal product, a product that 
has not only been approved by the Federal Government but which has been 
subsidized by the Federal Government. RICO does not apply to lawful 
activities, such as the manufacture and sale of cigarettes, no matter 
how obnoxious those products may be. For RICO and the State consumer 
statutes to apply here, the Department must demonstrate that the 
tobacco industry criminally and fraudulently marketed and sold their 
products. This is a difficult task that in almost every case has not 
been successful in a court of law because the harmful effects of 
tobacco products were well known. Indeed, the day the Department filed 
a civil suit, it announced that it was terminating the criminal 
investigation of the tobacco companies and tobacco executives for lack 
of viable evidence.

  I believe these counts of the complaint were added to force the 
tobacco companies to settle. A successful RICO suit would force the 
tobacco companies to disgorge all their so-called illegal profits of 
hundreds of billions of dollars. This would bankrupt the tobacco 
industry. The Clinton White House is gambling that the tobacco 
companies will settle and not take the risk of corporate capital 
punishment in prohibition of all tobacco use. When all is said and 
done, it would seem that legislation is what is truly needed for a 
direct recovery suit against the tobacco companies. In short, it seems 
that this suit lacks merit.
  This is not like the State suits against the tobacco companies. I 
supported the June 20, 1997, global settlement of those suits and 
conducted a half dozen or so hearings in an attempt to have Congress 
set a national tobacco policy. The difference is that the Federal suit 
appears to have no legal basis.
  Let me ask rhetorical questions: What is the big deal? Why should 
anybody care about another suit filed against the big, bad tobacco 
companies?
  I will tell you why. It is for the reasons I stated in this speech. 
No administration should be able to circumvent the Constitution and 
Congress' sole authority to raise and spend revenue for the general 
welfare by suing for billions of dollars and then spending the money 
without congressional appropriation. If there is no legitimate lawsuit, 
the action by the Department of Justice would violate separation of 
powers. That doctrine is a cornerstone of our Constitution's guarantee 
of liberty. Simply put, litigation should not replace legislation as 
the means to effect public policy in a democracy.
  Granting the Federal Government the unfettered ability to sue any 
industry which happens to fall into disfavor in order to effectuate a 
social goal such as reduction in tobacco-related illnesses is a 
mistake. It would, in essence, allow the executive branch to bypass 
Congress and the law and set unilaterally our Nation's tobacco policy.
  The way to solve the youth tobacco problem and other social problems 
is for Congress to legislate in an orderly and coherent manner. 
Litigation will produce ad hoc and incoherent results. Litigation 
cannot determine, for instance, whether the FDA should regulate 
tobacco.
  There is a disturbing trend in misusing the litigation system for 
what appears to be social ends. Besides tobacco, Government-sponsored 
lawsuits have been filed against gun manufacturers and paint 
manufacturers. It was reported that suits are being considered to be 
filed against automobile manufacturers, the alcoholic beverage 
industry, manufacturers of pharmaceuticals and chemicals, Internet 
providers, the entertainment industry, the dairy industry, and even 
fast food restaurants are being discussed as potential targets.
  Boy, it looks as if the trial lawyers of America got control of the 
Justice Department. They certainly have control of this administration 
and its projected successors in either Al Gore or Bill Bradley. Let me 
quote the distinguished legal scholar and former jurist, Robert Bork, 
who cogently discerned, in an article entitled ``Tobacco Suit is the 
Latest Abuse of the Rule of Law,'' published in a September 23 edition 
of the Wall Street Journal:

       The Justice Department's complaint is only the most recent, 
     and it will be by no

[[Page S11469]]

     means the last, effort to use litigation to bludgeon private 
     firms in order to accommodate a prohibition that government 
     could not muster the political support to legislate. Gun 
     manufacturers are beginning to face the same problem. Why not 
     sue oil companies, whose gasoline leads to traffic deaths, or 
     fast-food chains, whose products contribute to heart disease?
       The only difference is political. If the product is 
     sufficiently unpopular with the politically correct, massive 
     public propaganda efforts will ultimately make lawsuits 
     possible. . . .
       Law has been warped for political purposes repeatedly, and 
     never more so than in this Administration. Is there no judge 
     who shall call this case what it is--an intellectual sham and 
     a misuse of the courts to accomplish through litigation what 
     cannot be won through legislation?

  I ask unanimous consent that the full text of the Bork article be 
printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

             [From the Wall Street Journal, Sept. 23, 1999]

            Tobacco Suit Is Latest Abuse of the Rule of Law

                          (By Robert H. Bork)

       At least when the nation decided to end the ``scourge'' of 
     alcohol, it had the political courage to ratify the 18th 
     Amendment making Prohibition the law of the land.
       Not so in these pusillanimous days. Now, as then, we are in 
     the throes of a reform campaign waged with the vigor and 
     self-righteousness of the bluenoses of old. This time their 
     target is cigarettes, not whiskey. But our politicians no 
     longer have the courage to legislate the end of what they 
     condemn. Instead, they resort to lawsuits in an effort to end 
     smoking by destroying the tobacco companies. The end, 
     apparently, justifies any means, no matter how fraudulent.
       States attorneys general have filed multibillion-dollar 
     suits, allegedly to recover the medical expenses the states 
     have incurred caring for victims of smoking. Never mind that 
     the states have made far more money taxing cigarettes than 
     they spend on medical care. If that were all, we could shrug, 
     as we usually do, at the cynicism of our elected officials. 
     Unfortunately, the damage runs deeper than the pillaging of 
     shareholders in the tobacco companies.
       The Department of Justice has just filed suit to recover an 
     estimated $25 billion spent by the federal, military and 
     civilian insurers on smoking-related illnesses. This follows 
     the settlement by tobacco companies with states that calls 
     for payment of more than $240 billion over 25 years. It is, 
     unfortunately, to be expected that states would file such 
     suits. (Not for nothing is the National Association of 
     Attorneys General--NAAG for short--often called the National 
     Association of Aspiring Governors.) But one might have hoped 
     that the Justice Department, even under Janet Reno, was above 
     such chicanery. Not so.
       The real damage done by this noxious mixture of 
     governmental greed and moralism is not to the tobacco 
     companies' shareholders (they should have seen it coming and 
     got out a long time ago) but to what we still, with 
     increasing irony, call the rule of law.
       The federal and state suits suffer from the same defect, 
     which ought to be fatal. All of these governments have known 
     for more than 30 years that smoking creates health risks. Yet 
     with that knowledge, they all permitted the sale of tobacco 
     products and profited nicely, indeed enormously, from excise 
     taxes. How can A tell B he may lawfully sell a product that A 
     knows will cause injury and then sue B for the injury caused? 
     Maybe the people injured could sue B, or A as well, but the 
     one party that should have no cause of action, no complaint 
     whatever, is A.
       In the case of tobacco, the people who smoked and were 
     harmed should have no cause of action either. Governmental 
     and private organizations for decades have been pounding the 
     message that smoking is deadly; cigarettes even come with an 
     explicit government warning. Smokers are harassed in 
     restaurants and expelled from their offices to catch 
     pneumonia on the sidewalks. You cannot be sentient and 
     unaware of the risks of smoking.
       The lame answer to all of this is that nobody had a choice 
     because smoking is addictive and the tobacco companies hid 
     that fact from the government and from smokers. First and 
     least important, tobacco is not addictive as medical science 
     has long defined addiction. Second, everybody not in solitary 
     confinement for the last four decades has known that using 
     tobacco can be habit-forming.
       The law is being deformed in other ways as well. Government 
     suits against the tobacco companies are designed to remove 
     the defenses that could, justifiably, be asserted against 
     individual plaintiffs. While many juries are disinclined to 
     relieve smokers of the consequences of their own informed 
     choices, the government can try to avoid that defense by 
     arguing that it assumed no risk; others did. But of course 
     the government that authorized the sale of a known dangerous 
     product did assume the risk that, under its own laws, it 
     would have to pay when the risk became a fact. The Justice 
     Department's suit would also render irrelevant smokers' lack 
     of reliance upon any company statements as well as the 
     various statutes of limitation.
       If that were not enough, the government is charging a 
     violation of the Racketeer Influenced and Corrupt 
     Organizations law--a statute enacted to deal with organized 
     crime--to force the tobacco companies to disgorge their 
     ``illicit profits.'' No wonder President Clinton thinks the 
     companies will buckle and settle. Perhaps they ought to 
     countersue to force the government to pay back its illicit 
     taxes.
       The Justice Department's complaint is only the most recent, 
     and it will be by no means the last, effort to use litigation 
     to bludgeon private firms in order to accomplish a 
     prohibition that government could not muster the political 
     support to legislate. Gun makers are beginning to face the 
     same problem. Why not sue oil companies whose gasoline leads 
     to traffic deaths, or fast-food chains whose products 
     contribute to heart disease?
       The only difference is political. If the product is 
     sufficiently unpopular with the politically correct, massive 
     public propaganda efforts will ultimately make lawsuits 
     possible. That is what happened here. Yet even Ms. Janet Reno 
     not long ago told a Senate committee that ``the federal 
     government does not have an independent cause of action.'' 
     But the White House insisted, and the attorney general now 
     says she has studied the matter carefully and--presto!--there 
     is a cause of action after all.
       Law has been warped for political purposes repeatedly, and 
     never more so than in this administration. Is there no judge 
     who will call this case what it is--an intellectual sham and 
     a misuse of the courts to accomplish through litigation what 
     cannot be won through legislation?

  Mr. HATCH. Mr. President, today's tobacco lawsuit may be tomorrow's 
beef or dairy industry lawsuit. That is why about 100 trade 
associations, private business companies, policy organizations, as well 
as several Governors, have voiced their opposition to this Federal 
tobacco suit. They understand, as do I, that big government can be as 
harmful as big tobacco.
  I ask unanimous consent that a list of these individuals and 
organizations be printed in the Record.
  There being no objection, the list was ordered to be printed in the 
Record, as follows:

      Organizations and Individuals That Oppose a Federal Lawsuit

       American Insurance Association, American Legislative 
     Exchange Council, American Tort Reform Association, American 
     Wholesale Marketers Association, Americans for Tax Reform, 
     Anchorage Chamber of Commerce, Associated Industries of 
     Kentucky, Bakery, Confectionery, Tobacco Workers and Grain 
     Millers International Union, Burley Stabilization 
     Corporation, Business Civil Liberties, Inc., Business Council 
     of New York State, California Manufacturers Association, Cato 
     Institute, Citizens for a Sound Economy, Citizens for Civil 
     Justice Reform, Civil Justice Association of California, 
     Coalition for Legal Reform Member Organizations, Coalition 
     for Uniform Product Liability Law, Coalitions for America, 
     Connecticut Business and Industry Association, Convenience 
     Store Association of Michigan, Council for Burley Tobacco 
     (The), County Chamber of Commerce (New York).
       Eastman Chemical Company, Empire State Petroleum 
     Association, Federation of Southern Cooperatives, Food 
     Distributors International, Food Marketing Institute, 
     Frontiers of Freedom (The Honorable Malcolm Wallop), 
     Governors: The Honorable Roy Barnes (Georgia); The Honorable 
     James Hunt, Jr. (North Carolina;) The Honorable Jim Hodges 
     (South Carolina); The Honorable Don Sundquist (Tennessee); 
     The Honorable James Gilmore (Virginia). Grand Lodge Fraternal 
     Order of Police, Greater Dallas Restaurant Association, Gulf 
     Coast Retailers Association, Harney County Chamber of 
     Commerce, Hispanic Business Roundtable, Hispanic Owned 
     Newspapers, Hotel Employees & Restaurant Employees, Houston 
     Distributing Company.
       Illinois Chamber of Commerce, Illinois Civil Justice 
     League, Indiana Manufacturers Association, Indiana Petroleum 
     Marketers & Convenience Store Association, Indiana Retail 
     Council, Inc., Institute for Research on the Economics of 
     Taxation, International Association of Machinists and 
     Aerospace Workers, International Paper, Mackinac Center for 
     Public Policy, Manhattan Institute for Policy Research, 
     Mexican American Grocers Association, Mexican Legislative 
     Exchange Council, Michigan Truck Stop Operators Association, 
     Inc., Missouri Council for Burley Tobacco, National 
     Association of African American Chambers of Commerce, 
     National Association of Beverage Retailers, National 
     Association of Convenient Stores, National Association of 
     Manufacturers, National Association of Wholesale-
     Distributors, National Center for Public Policy Research, 
     National Consolidated Licensed Beverage Association, National 
     Grocers Association, National Korean American Grocers 
     Foundation, National Restaurant Association, National Roofing 
     Contractors Association, National Supermarkets Association, 
     National Taxpayers Union, National Tobacco Growers 
     Association, National United Merchants Beverage Association, 
     Inc., Nevada State A.F.L.-C.I.O., Nevada State Chamber of 
     Commerce, New York State Restaurant Association (Westchester/
     Rockland Chapter), Newark, City of.

[[Page S11470]]

       Oklahoma Conservative Committee, Petroleum Marketers 
     Association of America, Republican National Hispanic 
     Assembly, Reynolds Metal Company, Small Business Survival 
     Committee, Small Business United of Texas, South Carolina 
     Association of Taxpayers, South Carolina Chamber of Commerce, 
     Southern Nevada Central Labor Council, Standard Commercial 
     Tobacco, Inc., Tavern League of Wisconsin, Tax Foundation, 
     Texas Association of Business & Chambers of Commerce, Texas 
     Citizens for a Sound Economy, Texas Food Industry 
     Association, United Food & Commercial Workers, United States 
     Chamber of Commerce, United States Hispanic Chamber of 
     Commerce, Universal Leaf Tobacco Company, Virginia Tobacco 
     Growers Association, Washington Legal Foundation, Westvaco, 
     Wisconsin Manufacturers & Commerce, Wisconsin Merchants 
     Federation, Congressman Robin Hayes.

  Mr. HATCH. Mr. President, if we are going to solve this problem of 
tobacco, we need to face the music in Congress. We need to pass 
legislation that will solve it. One reason why the Hatch-Feinstein 
legislation would have worked is because we believe as high as it was, 
at $429 billion, the tobacco companies reluctantly would have had to 
agree with it. Therefore, we could have imposed the free speech 
articles on them that would have prohibited them from advertising, 
while at the same time causing them to have to advertise in a way that 
would help our youth to understand the evils of tobacco. That, we 
believed, should be done. I still believe that should be done. It was 
so fouled up in the last Congress that we were unable to get that done.
  So I am concerned about the misuse of the law, to be able to punish 
any industry that whoever is presiding in the Federal Government 
decides they are against. I think it is a travesty of justice, and even 
though I don't like tobacco and I have never used the products, and 
even though I think something certainly needs to be done in this area, 
you don't do it by abusing the process of law, which I think this 
administration has repeatedly done, time after time after time. I 
think, as history views what has gone on in this administration, it is 
going to have to come to the conclusion that this is an administration 
that has not been dedicated to the rule of law, while it has been 
triumphantly pushing the rule of law upon other nations, hoping they 
could have something like we have in this country.
  The fact of the matter is, it is hypocrisy, pure and simple. I am 
very concerned that if we allow our Justice Department to continue to 
act in this fashion, we are going to reap the whirlwind in this country 
and there will be no business that would be safe from the all mighty 
power of the Federal Government. There is one thing worse than big 
tobacco and that is an unrestrained big government. That is what this 
lawsuit is all about. It is a voracious desire to get money in an 
industry that should be gotten, but in a reasonably legal way, 
basically through legislation.
  I hope everybody will look at this lawsuit for what it is. I hope the 
courts will dismiss it so we can get about legislating and doing what 
we should to resolve the problems about tobacco use and misuse in our 
country.
  I yield the floor.
  Mr. CRAIG addressed the Chair.
  The PRESIDING OFFICER. The Senator from Idaho is recognized.
  Mr. CRAIG. Mr. President, are we currently in morning business?
  The PRESIDING OFFICER. We are in morning business.
  Mr. CRAIG. I thank the Chair. I ask unanimous consent that, following 
my remarks, Senator Domenici may have 10 minutes to speak.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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