T. Gorton

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent that the full Committee on Armed Services be authorized to meet on Tuesday, June 16, 1998, at 10 a.m. in open session, to consider the nominations of Mr. Louis E. Caldera, to be Secretary of the Army and Mr. Daryl Jones, to be secretary of the Air Force.

Mr. GORTON. Mr. President, I ask unanimous consent that the Subcommittee on Water and Power of the Committee on Energy and Natural Resources be granted permission to meet during the session of the Senate on Tuesday, June 16, for purposes of conducting a subcommittee hearing which is scheduled to begin at 2:30 p.m. The purpose of this hearing is to receive testimony on S. 1398, the Irrigation Project Contract Extension Act of 1997; S. 2041, a bill to amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the design, planning, and construction of the Willow Lake Natural Treatment System Project for the reclamation and reuse of water, and for other purposes; S. 2087, the Wellton-Mohawk Title Transfer Act of 1998; S. 2140, a bill to amend the Reclamation Projects Authorization and Adjustment Act of 1992 to authorize the Secretary of the Interior to participate in the design, planning, and construction of the Denver Water Reuse project; S. 2142, the Pine River Project Conveyance Act; H.R. 2165, an Act to extend the deadline under the Federal Power Act applicable to the construction of FERC Project Number 3862 in the State of Iowa, and for other purposes; H.R. 2217, an Act to extend the deadline under the Federal Power Act applicable to the construction of FERC Project Number 9248 in the State of Colorado, and for other purposes; and H.R. 2841, an Act to extend the time required for the construction of a hydroelectric project.

Mr. GORTON

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. 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.

Mr. GORTON. Will the Senator yield?

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.

Mr. GORTON. I thank the Senator from Alabama.

Mr. GORTON. Will the Senator from Alabama yield?

Mr. GORTON. I thank my friend from Alabama.

Mr. GORTON

Mr. GORTON. Mr. President, the Senator from North Dakota finds himself on the horns of a delicious dilemma. He feels there may be cases in which the amendment I propose would result in attorneys' fees being awarded that are too great, and so his answer is to reject the amendment and allow attorneys' fees in any amount. Attorneys' fees in one case, in Texas, I believe, have already been approved by the court in an amount more than 10 times higher than the highest amount in this amendment. I am afraid the Senator from North Dakota misreads the amendment. The heart and soul of the amendment is a set of criteria for determining reasonable attorneys' fees, listing a wide range of factors, some of which we have discussed here, but leaving the matter to the discretion of the court. There is a limitation imposed on the discretion of the court by the amendment in the amounts that we have stated and debated. This is a cap and by no means a floor. The Senator from North Dakota says that the better system is the system that is included in this bill, a system of arbitration. But, and the current Presiding Officer has read this very carefully, this is some kind of arbitration. This arbitration is to be decided under the bill by three arbitrators --one appointed by the plaintiff's trial lawyer himself, one appointed by the plaintiff, and a third appointed by the first two. The plaintiff has already signed an agreement--the plaintiff in most of these major cases is the State--they have signed an agreement, in some cases, for a 25-percent contingency fee on billions of dollars' worth of recoveries. Who is going to represent the public interest in this arbitration? No, Mr. President, there isn't anyone there to do that.

Mr. GORTON. Sure. (Mr. COATS assumed the Chair.)

Mr. GORTON. I am reading section 1413. It says: . . .In any such arbitration, the arbitration panel shall consist of 3 persons, one of whom shall be chosen by the plaintiff, one of whom shall be chosen by the attorney, and one of whom shall be chosen jointly by those 2 arbitrators. That is not plaintiff and defendant. That is a fixed deal. In any event, to say that because it is possible that this sets a ceiling, that a $4,000 fee or a $2,000 fee might be too great a ceiling, we should, therefore, have no ceiling at all, we should, therefore, allow attorneys' fees that have already been approved in far larger amounts, is, I think, a difficult argument to make. The Senator from North Dakota makes it very well. But, in fact, the Congress of the United States has set attorneys' fees in all kinds of cases. They were discussed a few days ago by the Senator from Alabama and by others. There are many forms of litigation against the government itself in which we have set attorneys' fees that now, I think, are rather modest with the passage of time. This is not unprecedented by any stretch of the imagination. What is unprecedented is the generosity of the proposal that I have put before the Senate. It is not unprecedented from the point of view of whether or not we have done it. No, we either have to say that because the States of these attorneys have come to us and have asked us to regulate tobacco in every conceivable, possible fashion, because they have asked us for a bill--this bill that makes it almost impossible for them to lose a case in the future because it totally changes the burden of proof--that we can say there is a certain level beyond which the conscience just simply doesn't allow attorneys' fees to go, or you have to take the position that we can regulate everything with respect to tobacco to the minutest degree, but we dare not touch attorneys' fees, personally, I think that is a very, very difficult argument to make. Mr. WELLSTONE addressed the Chair.

Mr. GORTON

Mr. GORTON. Mr. President, if there is no further business to come before the Senate, I now ask unanimous consent that the Senate stand in adjournment under the previous order, following the remarks of the Senator from Minnesota, Mr. Wellstone.

Mr. GORTON

Mr. GORTON. Mr. President, for the information of all Senators, the Senate will reconvene tomorrow at 9:30 a.m. and begin a period for morning business until 10:30 a.m. Following morning business, the Senate will resume consideration of the tobacco bill with the Gorton amendment pending regarding attorneys' fees. It is expected that a time agreement will be reached with respect to the Gorton amendment with a vote occurring on, or in relation to, the amendment Tuesday afternoon. Following disposition of the Gorton amendment, it is hoped further amendments will be offered and debated throughout Tuesday's session. Therefore, rollcall votes are possible throughout tomorrow's session as the Senate continues to make progress on the tobacco bill. As a final reminder to all Members, the official photo of the 105th Congress will be taken tomorrow at 2:15 p.m. in the Senate Chamber. All Senators are asked to be in the Chamber and seated at their desks following the party luncheons.

Mr. GORTON

Mr. GORTON. Mr. President, I further ask unanimous consent that the Senate stand in recess from 12:30 p.m. to 2:15 p.m. tomorrow to allow the weekly party conferences to meet.

Mr. GORTON. Mr. President, I further ask unanimous consent that following morning business, the Senate resume consideration of S. 1415, the tobacco bill.

Mr. GORTON. Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 9:30 a.m. on Tuesday, June 16. I further ask unanimous consent that on Tuesday, immediately following the prayer, the routine requests through the morning hour be granted, and that the Senate then begin a period for morning business until 10:30 a.m., with Senators permitted to speak for up to 5 minutes each, with the following exceptions: Senator Mack, 15 minutes; Senator Roberts, 15 minutes; Senator Dorgan, 30 minutes.

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent that the resolution be agreed to; that the preamble be agreed to; that the motion to reconsider be laid upon the table; and that any statements relating to the resolution appear at the appropriate place in the Record.

Mr. GORTON. Mr. President, I ask unanimous consent that the Judiciary Committee be discharged from further consideration of House Concurrent Resolution 75 and, further, that the Senate proceed to its immediate consideration.

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent that the Senate immediately proceed to executive session to consider the following nominations on the Executive Calendar: Calendar Nos. 502, 580 and 623. I further ask unanimous consent that the nominations be confirmed; that the motions to reconsider be laid upon the table; that the President be immediately notified of the Senate's action; and that the Senate then return to legislative session.

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent that the Senate insist on its amendment and agree to the request of the House for a conference; that the Chair be authorized to appoint conferees on the part of the Senate; that upon appointment of the Senate conferees, a motion to instruct the conferees be agreed to which provides that the Senate conferees be instructed to include the Wellstone amendments in any conference agreement; and that once this consent is granted, together with other consent items I will go into later, Senator Wellstone be recognized to speak for up to 1 hour.

Mr. GORTON

Mr. GORTON. Mr. President, there is at least an informal understanding that there will be a debate on this amendment tomorrow for approximately 1 hour. With the kind indulgence of my friend and colleague from Minnesota, I am going to simply give a brief explanation of this amendment now so Members who are watching, or staffs who are watching, will understand its general subject matter. Twice during the course of this debate we have debated the subject of limitations on attorneys' fees. On both occasions I have voted to table those amendments, not because I felt that limitations on attorneys' fees in connection with tobacco litigation and legislation were not appropriate, but because I felt that the amendments themselves were unfair. This amendment is a third attempt to provide some limitations in a manner that I, at least, believe to be considerably more sensitive and more fair to the attorneys who have been involved in that litigation. I hope under those circumstances it will be given reasonably careful consideration by my colleagues. We are dealing with litigation that is literally unprecedented, I think, in the history of the United States, with the potential of immense recoveries on the part of various States interfered with and amended by the legislation that we are considering here on the floor. Under those circumstances, the possibility that attorneys' fees would be awarded in the billions of dollars--perhaps even in the billions of dollars to some individual firms, but certainly in the order of nine digits to many individuals and individual firms--is a matter that I think greatly disturbs the majority of the American people and many, if not most, members of the bar. Those attorneys' fees have been subject to much criticism from the outside, and there should be a way to see to it that they are dealt with fairly. The difficulty with the two earlier amendments, in my view at least, was that they treated all lawyers, all attorneys who were involved in tobacco litigation--past, present, and future--in exactly the same fashion. Yet it is obvious that, if we look at the history of this controversy, the initial litigation and the ideas for that initial litigation that were brought forth some time ago, in the early 1990s, were developed by a group of tremendously gifted and imaginative attorneys at a time at which the odds on their success, looking at it from the beginning, would have been judged to have been very small. They have shown great skill, great persistence; they have spent, in many cases, a great deal of their own and their law firms' money; and I think the reward they have earned is considerably larger than awards that will be earned by those who got into this litigation very late in the game when it was obvious that the litigation was going to be settled for large amounts of money or litigated successfully; not to mention those who will bring tobacco-related litigation in the future when, under the terms of this bill, and many State legislative acts, it will be almost impossible for an attorney to lose a tobacco case. As a consequence, the fundamental approach of this amendment is to say that for those who were in this litigation early--that is, before the end of the year 1994--attorneys' fees can be up to $4,000 an hour-- a huge amount of money beyond any question, a mind-boggling amount of money, but nevertheless considerably less than many of these attorneys will get in the absence of such legislation, on the basis of percentage contingent fees. Moreover, like other amendments in this connection, that is a ceiling, not a floor. The courts, in this case, will make a determination considering all of the same items that have been outlined in previous decisions of the U.S. Supreme Court and in previous amendments on this subject. So when a judge determines that amount is too much, the judge may reduce the amount below that hourly fee but under no circumstances may go above it. The second category of attorneys will be those who were involved in this litigation after 1994 but before early last year. Their ceiling will be half the amount of the pioneers, or $2,000 an hour. And certain other attorneys who worked on developing the ideas that went into this case will fall into that category as well. The next clear date is when the Liggett Tobacco Company agreed, in effect, to turn state's evidence to settle the matter and to admit its liabilities and admit, generally speaking, the liabilities of the other tobacco companies. Those who got into the litigation after that were almost certain winners--almost certain winners. They did not run the risks that earlier attorneys did, and their maximum fee under this amendment will be $1,000 an hour. That will, in fact, be somewhat less than the maximum recovery under the last Faircloth amendment, because while it stated the sum of $1,000 an hour, it allowed for recovery of costs over--considerably over and above the actual costs incurred in the litigation. Finally, after the beginning of this debate here, assuming that this debate, of course, ends up in actual legislation, tobacco litigation will be almost like Workmen's Compensation litigation in all of our State courts, and the limit there is $500 an hour under this amendment, half that in the last Faircloth proposal. Again, these are limits, these are maximums, but they are maximums set in a different way than they were in the other two amendments, reflecting the actual risks, the actual imagination, the actual work that went into the litigation and, for that matter, into the legislation itself. I am not certain this is a totally perfect proposal of this nature, but I think it is highly reasonable. I think it is highly generous. I think it meets the views of people in the United States as a whole who do not think the lawyers in this case should become billionaires out of it. And it will husband the actual recoveries, whatever those recoveries may be and however they are derived, far more for the purposes of the litigation and the legislation itself than relatively unlimited contingent fees would do. That is a brief explanation and a justification of something that I hope meets with the support of those who have felt that there ought to be limits on those attorneys' fees, but that they should be somewhat lower and those on the other side, who, like I, have voted against these previous limitations on the grounds that they weren't sensitive enough and for at least some people were not high enough. I would like to bring people together on this so that at least this particular element of this debate can be brought to a successful conclusion.

Mr. GORTON. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. GORTON

Mr. GORTON. How much time is available to the opponents?

Mr. GORTON. Unfortunately, I must object on behalf of the majority leader. He wishes the vote take place then. Then I will yield the floor.

Mr. GORTON. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.