Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. I believe the Senator from Texas would like 3 minutes. I would be glad to yield to the Senator from Texas. I appreciate his leadership on this related issue. He has done a tremendous job in analyzing this legislation.

Mr. SESSIONS. Thank you, Mr. President. I appreciate very much the conviction and hard work done by the Senator from North Carolina on this important issue. It is not a political issue, although I think it could become one as time goes along. It is a question of right and wrong. It is a question of just how rich persons can get with the money that should be available to benefit children and the health care of Americans. So I think we have an issue of great importance. I think the Senator from North Carolina is also correct when he says that we came here a few days ago and we talked about a $250 per hour containment of attorney fees and they said that was not enough. So we have attempted, again, to come up with a bill that will pass muster in this body, that will have support from both sides of the aisle, Democrats and Republicans, with the kind of fees that nobody can object to, that are rational and just and fair and quite generous, and will, in fact, make multimillionaires out of many, many lawyers. I do not believe and I resist the suggestion that this capping of these fees in this litigation is somehow an attack on attorneys and an attack on the contingent fee contracting in general. It has nothing to do with that. It involves only tobacco litigation--tobacco litigation and legislation that was brought to the U.S. Senate. And we were asked to pass legislation on it. It spun out of litigation. It certainly has not been completed. None of the verdicts have been affirmed on appeal. Other cases have just gotten started. And we in the Federal Government are about to pass legislation that could, in fact, terminate all of that and bring it all to a conclusion. The trial lawyers who had contracts, some of whom have done little work, on a contingent basis, now want to be paid billions of dollars in fees. Perhaps 20 or more attorneys will receive $1 billion in fees. I would just like to point out how much $1 billion is. This Nation spent $450 million last year on diabetes research. The Alabama general fund budget for the entire State, apart from education, is less than $1 billion. So we are talking about huge sums of money by any standard, the kind of money that we have never seen before. These are the largest fees ever awarded in America, many of them for litigation only a few months old. It is ``unconscionable,'' as a judge in Florida has said, and it cannot be allowed to continue. I hope this very generous legislation that allows the lawyers to state their case for up to $1,000 an hour in fees will be the kind of amendment in which everybody in this body could join. I want to note why someone could not feel comfortable with that. Let me share with this body a report from ``20/20'' that was done recently involving the Florida litigation. This will explain how that litigation prevails, just how much was involved, and how much the attorney gets out of it. It began with Hugh Downs. This is what he said. What is your time worth? How does $7,000 an hour sound? That's what some lawyers want to be paid for their work on Florida's suit against the tobacco industry. Each and every one of them could become a millionaire many times over just from this one case. So did they really earn their fee? John Stossel tells us about it. John Stossel: ``The children are supposed to benefit * * * '' You know that we have heard a lot of talk about children and helping children. Let me ask this question: Will allowing an attorney to become a billionaire help children? Could that money be used for other antismoking programs, or tax reductions for the American people? It certainly could. John Stossel: ``The children are supposed to benefit from new money from antismoking programs. And later the Governor invited in some children and dummied up a check to celebrate the first $750 million payment. But now it turns out that the Florida taxpayers may not get as much of that money as they thought because Florida's lawyers are in a legal battle over how much money they should get. Montgomery says they deserve $2.8 billion. That's right, billion. He doesn't exactly need money. This is his multimillion-dollar house in luxurious Palm Beach right next to the ocean. The house is so huge, it looks more like a palace. Even his Rolls Royce and his Bentley live in a garage that's bigger than many houses. Montgomery got this rich suing car makers and hospitals and insurance companies.'' The interview with Bob Montgomery was right there at his house. He describes his lawn. So this is my putting green, and this is my sand trap. And what I do is I have these balls, and this is where I drive them: John Stossel: ``Out into the water.'' Bob Montgomery: ``Out into the water.'' John Stossel: ``The inside of the house is even more grand. Montgomery has a vast art collection.'' Ladies and gentleman, we are talking about a lot of money. We are talking about hundreds of millions of dollars, not just $1 million. One million dollars is a lot of money. A million dollars. It is an American dream to be a millionaire. We are talking billions, a billionaire. Mr. Stossel goes on. He talks about how they were selected. How do people get selected to file these lawsuits? Did they bid on it? Did they go out and say what lawyer will take this lawsuit and what kind of rate will you give us and let's evaluate the best bid? Stossel. Friendship starts to explain how some of these private lawyers were selected and ended up with a contract that says each is now entitled to hundreds of millions of dollars. It began four years ago when Levin came up with a scheme to use Florida's legislature to make it easier to win a suit against big tobacco. They interviewed Mr. Levin, a fine lawyer. I had occasion to meet the man, a skilled attorney, and he was very, very frank about what happened. Mr. Levin: I took a little known statute called a Florida Medicaid recovery statute-- This is his exact quote-- changed a few words here and a few words there, which allowed the State of Florida to sue the tobacco companies without ever mentioning the words ``tobacco'' or cigarettes. The statute passed in both the--the House and the Senate. No one voted against it. John Stossel. Well, did people know what they were voting for? Levin: No. And if I had told them, they'd have stood up and made a--you know, they'd have been able to keep me from passing the bill. John Stossel. This made the suit much more winnable? Mr. Levin. Oh, God, it meant it was almost a slam dunk . . . Oh, this is tough litigation. The chief plaintiff lawyer who wrote the bill to make the suit possible in Florida said it wasn't tough litigation; it was a slam-dunk because he changed the law in a way that nobody knew what he was doing to create a lawsuit that had not been possible before. Here, Mr. Stossel goes on. Am I missing something here? The controversy's become should the dream team-- That is talking about the lawyers-- get billions from the 25-percent deal? They had a contract, you see. We will sue these people for the State of Florida. We will take 25 percent of whatever we recover. And then they go in and change the law and it becomes a slam-dunk lawsuit and they want 25 percent of it. Then they come to Congress and say, well, we have some problems with just suing. We need the Congress to pass global legislation to control this whole area of the law but don't control our fees. You can control everything else. Tell the tobacco companies they are violating their contract, but you can't violate our contract, not ours, because ours is sacrosanct because we are lawyers. We are lawyers. That is our business and you can't violate our contract. Stossel. This is his quote. Why do private lawyers gets so much of the State's money in the first place? When this construction company got the contract to replace this Florida bridge, they had to compete against other construction companies. There was competitive bidding. To win the job, they had to show they were qualified and submit the lowest bid. All States have such rules to prevent politicians from funneling projects to friends. But that's not what happened with the lawyers. Here, Fred Levin called some friends. You picked the dream team. Then they interviewed Professor Lester Brickman, a law professor at Cardozo School of Law, an outstanding professional who studied legal fees and how they are awarded for a number of years, and asked Mr. Brickman about it. Mr. Brickman: It's an outrage. It's more than greed. It's a scam. Those are strong words: ``It's more than greed. It's a scam.'' John Stossel. Law Professor Lester Brickman, who's an expert on legal fees, says it's not right for a Governor to hand over such a potentially lucrative case to a friend. Brickman. There are politicians involved who are stroking the backs of lawyers because lawyers have stroked their backs before and may yet stroke their backs again. So I think the public perception here, which is probably pretty accurate, is that this smells. Stossel. However it smells, the deal is now mostly done. Its main accomplishment is a huge transfer of wealth from not tobacco companies--they'll just raise the price--but from today's smokers, who will give it to State treasuries with a huge cut going to lawyers like Bob Montgomery. It's like an old boys' scam. You and your buddy, the Governor who sleeps in your house, do your little deal together. You get rich. John Stossel says: The taxpayers get burned. The smokers get burned. Finally, Mr. Stossel points out--I am quoting him now-- Finally, another clever twist you might have missed in the tobacco deal is that usually when Americans want to tax something-- This is very important, and I will share with you my personal experience less than 2 years ago when I was attorney general of Alabama-- we vote on that. The legislature decides on behalf of the people, but not here. Here, a Governor-- Sometimes in other States the attorney general-- and some lawyers decided, in secret, that smokers should pay the State and lawyers a lot of money. And then Mr. Levin explains why it is such a cool political deal and why many of the people in this body like it, those fellows and ladies who favor tax increases and tax and spend and tax and spend. And people are getting mad about it. They are getting alert to it. They are objecting to it. They are seeing how taxes get slipped in through this backdoor and that backdoor. It is not popular, and many of them are losing their places in Congress and in the State legislatures because they are voting for too many taxes. That is not good. So Mr. Levin tells why this is such a good deal. The tobacco companies don't care. They can either pass it on as a tax, or they can pass it on as an increase in price, and tobacco companies settle with the Government. Beautiful. John Stossel. What's the difference? You're still paying 60 cents more for your cigarette? Levin. But it's the tobacco company they can get mad at. You don't hold that against the Governor. You see, make the public get mad at the tobacco company for raising the price, and the politician says, We didn't raise taxes. It was the tobacco company that raised the price of the cigarette. You get the deal? Good politics. Mr. Levin just flat said it. John Stossel concludes: So everybody wins. Well, not the smokers, but the politicians win, the tobacco companies win, the State and certainly the lawyers. Hugh Downs concludes the report: That's really outrageous, isn't it? And Bob Montgomery may well get his way because last week an appellate court judge reopened the door for what could be a big payday for these guys. And Barbara Walters concluded. As Mr. Montgomery said, ``Oh, yeah.'' But you know Senator Crist is trying to have a bill that caps the amount they get paid at $250,000. But even that's not bad money. Two-hundred-fifty thousand dollars is not bad money either. I say that to you. I went through that report because, Mr. President, it shows how this thing has developed and that there is a sense and a tinge of corruption in the way this was done. Another thing that was very unhealthy is how did the settlements occur and how were they justified? Well, the lawyers said for the taxpayers and public citizens not to worry about it, how we got this case settled and where it leads, because these fees are not paid by the State; they are paid by the tobacco companies. They agreed to pay our fee, see. I agreed with my tobacco company and they pay my fee. And it is not coming from the taxpayers. Now, I have been a lawyer for a good while. I have litigated a lot, and most business people understand money and they know that the tobacco companies, when they settle a case, don't care whether the money they pay is called tobacco fees, lawyer fees or anything else. There is so much money, they are willing to pay. And so they are perfectly happy if they can pay off the lawyer and give him a lot of money for their fee to get them to agree to the whole settlement. It doesn't bother them in that circumstance. So there is an unhealthy relationship there, and it is something good lawyers have to guard against at all times. You have to guard against that because it can even corrupt your judgment because your money may be paid from the person you are supposed to be suing and your fidelity, your loyalty, your integrity is due to the people you are representing. That is an unhealthy relationship. I just say to you this money absolutely available to be paid to the Government to be used for tax reduction and the child smoking reduction effort and health care and health research, it will not be used for that; it will be sent to the attorneys. Let's talk about something else. In Mississippi, the case there was an interesting case. In Mississippi, the case was brought before a single judge in Mississippi, and the case was filed in equity. It was not a jury trial, it was in equity. Many States still have a distinction between law courts, legal courts, and equity. Historically, in England, equity courts were run by the church and the law courts were run by the king. In matters of divorce and family, relief of that kind was done in equity. They came out with an equitable doctrine of unjust enrichment and pursued this case for a number of years, and under a theory that the tobacco companies were unjustly enriched, they made their recovery. So, hundreds of millions of dollars will be paid out of that Mississippi case, based on that. In Texas, the fee came down to be $2.3 billion for the attorneys involved in that case. I believe the firm that was involved in that had four partners, five attorneys in that firm, who will split $2.3 billion--quite a lot of money. Professor Brickman of the Cardozo Law School has testified, I believe--as Governor George Bush of Texas is furiously and aggressively doing everything he can to undermine and defeat these claims for this huge amount of money--Professor Brickman has testified that he figures the trial lawyers were asking for at least $92,000 per hour. I didn't make that up. This is a Cardozo Law School professor saying these lawyers were asking $92,000 per hour. Stewart Taylor, writing for the Legal Times--he also is a senior writer for the National Journal--estimates that the total attorneys' fees will amount to $5 billion per year and quotes Professor Brickman as saying it will create 20 to 25 billionaire attorneys. I am talking about a billionaire. I had my staff pull up--I think it is Fortune magazine that lists the richest people in America. We counted 60 billionaires in America. We are talking about creating numerous new billionaires out of this one lawsuit--some of them have not filed a case this past year--will be making $1 billion. That is just not acceptable. That just cannot be. So I appeal to all the Members of this body, whether you are Democrat or Republican, to look out for justice, to look out for fairness, to look out for decency. This is beyond making a good fee. I am quite willing to have these attorneys make a good fee. We will let them make $1,000 an hour and double their expenses that they have invested in it. I am willing to let them. But I am telling you, that is more than I really feel is necessary. But I want to gain support for this legislation. I think it is absolutely critical that we contain these fees. Where is the money coming from? Is it from the waitress? the construction person? the businessman? the gas station owner? the secretary who smokes--that is who is paying it--to give it to a lawyer who already has a garage with his Bentley in it, bigger than somebody's house, and who practices golf by driving golf balls out into the Atlantic Ocean? That is what we are talking about--a wealth transfer from decent Americans who trust their Government. They trust us to treat them fairly, to pass legislation that gives them a fair chance. We are taxing them to pay for this kind of thing? Wrong. It is unjustifiable, unconscionable, as a judge in Florida has said. How did it happen? How did this all happen? I want to tell you how it happened. I will tell you exactly how it happened because I was, in a way, there. I was attorney general of Alabama less than 2 years ago, and I was approached by a group of attorneys. They said, ``Well, Jeff, we would like to talk to you about hiring us to sue these tobacco companies. We are working with a group of lawyers around the country, and we have this theory, and you can pay us 25 percent and we will just file this lawsuit for you. I know your attorney general's office doesn't have a lot of money, and we'll just fund that for you. You just give us 25 percent of whatever we recover.'' And I said, ``What's your legal theory? I don't think I can file a lawsuit, according to the ethical rules of law, if I don't believe it's a good lawsuit.'' So we spent a good bit of time talking about that first. When they got through, I said, ``What you are telling me is, this is not an established principle of law but you want to expand the law and go further.'' And they said, ``Yes, that's correct. It hasn't been a proven theory. But we have this new theory. We think we maybe can prevail on this. It is very popular today. Nobody likes tobacco. We believe we might just win.'' So I told them, ``No, I don't think so. I think I'd rather have you go ahead with your suits, and I'm not going to spend 25 percent of the recovery. If you prevail in Mississippi or Florida or other States and you establish a cause of action, I may consider joining it. But I won't need you then, because I have lawyers on my own staff and they can handle the litigation, thank you.'' They didn't want to do that. They persisted and told me certain names of attorneys that they wanted to participate. One of the best known attorneys in Alabama, Jere Beasly, was a name they suggested to me-- that he would be part of it. And the person making the proposal to me, it wasn't Hugh Rodham, but he was the Lieutenant Governor of Alabama who was a part-time Lieutenant Governor and a lawyer. He was coming in as a private attorney, and he was going to make part of the fee out of the case. I objected to all of this--by the way, the Lieutenant Governor has great power on legislation. We have had a lot of efforts to reform tort laws and lawsuits in Alabama, and they have died in the State Senate, where he presides over the State Senate in committees that he set up and established. He was popular with the trial lawyers, and he asked me to file the suit, and I said no, I didn't think that we ought to do that. And he said to me, ``Well, you can hire some of your law firms. You can hire some of your buddies, your Republican law firms--cut them in on the deal. Why don't you do that, Jeff? That will be fair, won't it?" I am telling you, this is not good business that we are involved in here. There is an element of greed that goes beyond what is normal. So, anyway, that is the way that went. They go around the States, then, approaching attorneys general with this kind of pitch. As it turns out, one attorney is apparently involved in litigation in 30 States and another attorney group is involved in litigation in 28 States. What does that mean? What they do is, they have this theory. They have come up with a theory of litigation that can make billions of dollars in recoveries. They go into a State and get a group of local people, and they also bring in the President's brother-in-law, Hugh Rodham, make him a $50-million man because he sits in the room and reads a novel while they are settling the case. Let him have a little bit, too. Make him happy. Maybe it will make the President happy. Maybe he will be supportive of us when we come in with the legislation. We cut in the Attorney General of Alabama; maybe he will continue to be friendly to us in the State legislature. What would his fee have been? I don't know. They go around and they get investors. People, basically, as I would understand it, buy shares. They go out to a number of the big name plaintiff firms in this town, community or State, and they get them to agree to put up so much of the money. They put the money in. Each one of them has a share. These major law firms that are doing most of the work, they do all the brainwork, and the local guys file the pleadings and handle the PR and the political stuff and take care of the attorney general, and make him look good. That is how it happens. And then, boom, after Mississippi--they had that unique single judge in Mississippi--you had the change of law in Florida, the tobacco companies lost those big settlements, and they just collapsed and they agreed to pay everybody. Listen to me. In some States, the attorneys had done little more than file the lawsuit and they are now claiming 25 percent, 15 percent, of billions of dollars in recovery. Why? Because they had a contract. They signed a contract with the attorney general of Alabama, Georgia, whatever State. That is not good. That is not a good process. I will tell you with absolute certainty and conviction that money paid to those lawyers is money not available to children, to antismoking programs in America. It was simply allowed to go to the attorneys. Why would not my brethren on the other side of the aisle, who profess to be so concerned about children, be involved in this? They have accused those who have opposed this tobacco legislation consistently of being tools of big tobacco--``Oh, they're just bought and paid for by big tobacco.'' I will say this, I took not a dime from tobacco. I rejected tobacco money. I have not taken it and will not take it. I don't think at this stage of the game we ought to be taking money from tobacco. I realized we were going to have a contested issue concerning tobacco, and I wanted to keep my record clear, so I have not taken any. A lot of other Senators on both sides of the aisle don't take tobacco money.

Mr. SESSIONS. I yield to the Senator from Texas.

Mr. SESSIONS. I have not. I think it is an absolutely appropriate question to ask. I think it is appropriate to ask how much tobacco gives. I think it is appropriate to ask how much trial lawyers give. And my best judgment is, the trial lawyers are giving more to this body than tobacco companies.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, this is an important bill, legislation that I hope that this body can reach an accord on. The Coverdell-Craig amendment on drugs is not a way to undermine the bill but a way to improve the bill. Drug use among young people is the No. 1 concern of parents, according to authoritative polling data. We have a bill that has gone from $360 billion to, some say, $750 billion in income to the U.S. Treasury. It would be a tragedy were we not to take this opportunity to do something about the drug abuse problem that continues to increase at extraordinary rates, particularly among young people in America today. I serve as chairman of the Senate Judiciary Subcommittee on Juvenile Crime. I have had the occasion to deal with the drug abuse problem in that capacity. I also had the occasion, for 15 years, to be a Federal prosecutor and 12 years as U.S. attorney in the Southern District of Alabama. During that time, I was actively involved in the Mobile Bay Area Partnership For Youth, the primary drug-fighting organization which was later added to the Coalition for a Drug-Free Mobile. We worked on a monthly basis with the leadership in our community to do what we could do, as citizens within that community, to reduce drug abuse in our schools and among young people. I learned some things during that process. I learned that what you do makes a difference. I was proud to have served under the Reagan-Bush administration as a Federal prosecutor. During that time, I observed a continual decline in drug use, according to the University of Michigan study that tested high school seniors, among others, every year for 20 years. It is probably the most authoritative and respected study in America. It showed that, for the 12 years under Presidents Reagan and Bush, drug use went down every single year, something I was extraordinarily proud to have been a part of. President Reagan and Mrs. Reagan sent a message down to every federal agency to cooperate in efforts to reduce drug abuse, because we cared about young people; we did not want them to be hooked on drugs. And it worked. Those who said the drug fight was a failure were wrong; we were making progress. When President Clinton was elected, I sensed, and told my friends and professional acquaintances who were involved in this area, that he was making some very serious mistakes. When you go on MTV and you joke about whether or not you inhaled, saying, ``Maybe I wish I had,'' that sends a message to young America that something has changed, that the moral-based unacceptability of drug use message that had gone out consistently for over a decade was now changed; there was going to be a new day. I recognized it then, and so did professionals. This was bad. The drug czar's office, the office that Bill Bennett used so effectively to continue to drive down drug use, was gutted. It is only recently that we have shown the need for the drug czar's office to be strengthened again and for General McCaffrey to begin to stand up to some of the inertia and bureaucracy in this Government to make a clearer point about the problem of drug use. So, I just say that this is an important matter. It would be unfortunate, indeed, if, in our concern here, as part of this tobacco bill, which is to help the youth and health of children, we didn't also focus on drugs. It is the No. 1 concern of parents, and well it should be. I would just say this. In general, there are a number of other amendments we need to talk about with regard to this tobacco bill. I have been intimately involved in the attorneys' fees matter. We need to vote on that again. As far as I am concerned, I will not support a bill that does not limit the incredible fees that attorneys stand to gain. So we need to have a discussion about that. We have an attorney in Miami, FL, according to John Stossel on ``20/20,'' who hits golf balls out into the ocean from his beach-front mansion when he practices his driving. That is just indicative of how wealthy they have become from this litigation. He expects not millions, not tens of millions, not hundreds of millions of dollars, but billions of dollars. They want $2.8 billion in attorneys' fees in Florida. They say, ``A judge can decide this.'' A judge has already approved $2.3 billion in attorneys' fees to the firms in Texas. This is extraordinary--a billion dollars. To give an indication, the general fund budget of the State of Alabama is less than a billion dollars. This is the kind of fees we are talking about paying. So I think we are going to have to talk about that some more. There is a provision in this bill that allows for $8 billion to be paid out ``to victims who win lawsuits, smokers who win lawsuits.'' They can go to this fund, run by the tobacco companies, and they can get money up to $8 billion, and then they are cut off. That is a terrible plan, because some States are going to have laws, traditional laws, that will probably not allow smokers to win at all. Other States may allow them to win. One jury may give $10 million, another nothing--``You smoked; it warned you on the package when you smoked; you should not recover.'' We are going to have aberrational justice of the most extraordinary nature. It is going to be like the asbestos litigation, in which there are 200,000 pending asbestos cases today--200,000--and no more than 40 percent of the money paid by the asbestos companies actually got to the victims of asbestos. We are creating the exact same process with this legislation. So I have an amendment, Senator Jeffords and I do; we will be introducing it--to create a compensation fund and let the Secretary of Health and Human Services, under certain guidelines, distribute the money promptly to people who are in need. If you have lung cancer from smoking, your life expectancy is a matter of months. You don't need to have 2 years of litigation before you get any compensation. If you are entitled to it, you ought to get it promptly. We would have awards within 90 days and without attorneys' fees. We don't even need attorneys under those circumstances. So there are a lot of things we can deal with. We have a huge tax increase, and how we are going to reduce some taxes in the course of this will be important also. So there are a lot things we need to talk about. We have 17 programs, $500 billion, $600 billion, $700 billion in new income to the Government. We ought not to pass this lightly. It is just going to take some time to go through it. I am chagrined that the Democratic leader would feel we ought to cut off the opportunities to debate and improve this bill. As I said, I have spent some time wrestling with the drug issue over the years. It is a matter about which I feel very deeply. I gave a lot of my personal time to it. I have worked with civic leaders. I have worked with juvenile judges. I have worked with mental health officials. I have worked with treatment officials and other people. I brought in national experts to my district. I have met with them and talked with them. When I was U.S. Attorney, I chaired a national antidrug committee for the Department of Justice and had a lot of concern about it. Let me share with you a few thoughts about what we ought to do. We have--and Senator Coverdell has done an outstanding job on this legislation--agreed to a particular amendment that I suggested, the parental consent drug testing provision. It is a provision that allocates $10 million to be available to schools. A school will have to ask for it. It will be voluntary for the school. They will establish a program to drug test within that school. Parents will have to consent for their children to be drug tested. If they do not want them tested, they do not have to allow them to be tested. I will talk about that for a few minutes and explain why, if we really care about children, this is a tool which I believe has a potential to do more than any single other thing I know of to reduce drug abuse in America. We have talked about it a lot. We tell our children we do not want them to use drugs and it is dangerous, but we do not do the things that allow us to know whether or not they are using drugs. Dr. Laura tells us we need to confront our children and be honest with them and find out whether or not they are using drugs. Sometimes you can't always take what they say at face value. Drug testing is a tool for parents, it is a tool for teachers, and it is a tool for people who love children, who care about them. If you love them, if you care about them, you want to know whether or not they are undertaking bad habits. It is disclosure. It is truth. It is confrontation. It is what the psychologists and psychiatrists call intervention. They will not use a positive drug test to prosecute somebody or to otherwise send them to jail or invoke the criminal law. That is prohibited by this legislation. What it will do is allow that parent, that teacher, that principal to know that this child has a problem and it could get worse. If we intervene early before addiction occurs, we have a much better chance of changing those life habits. I don't know if this program will work--maybe it won't work--but my experience, and it has been over a number of years, tells me that it will. Let me tell you why. A number of years ago in the early 1980s, the captain of a Navy aircraft carrier spoke before a civic organization of which I am a member. He told us that less than 2 years before, over 60 percent of the sailors on that ship, in his opinion, had tried an illegal drug within the past few months--60 percent on that naval ship. He said since they began a rigorous program, ``Just Say No. No Drugs in Our Navy,'' and drug testing, that was down to 2 or 3 percent, in his opinion, in a matter of 2 years. Some people were kicked out of the Navy, true, but not that many. Most of them who had a clear message of what they were expected to do, what kind of standards they were expected to meet and that those standards were going to be enforced, met those standards. Were their lives better? Was the quality of life on a naval ship better when people were not using drugs than when they were? I submit it is much better. And, in fact, I believe if you go back and study what has happened in our military, you will find the great upsurgence in quality and strength of our military coincides with the time we took a strong stand on drugs and removed drugs from the military. In fact, the military has some of the lowest drug use statistics of any group in the country. That was progress. That was good. That is the kind of thing that makes life better. It makes better soldiers, it makes those soldiers better family leaders, better parents, better with their lives and community activity. I say that is important. I talked to a man who ran a work release center in my hometown of Mobile. He told me this story. They had 16 members on a work release gang, and they received approval to do a blind testing of those members for drugs. They had not been doing it that much. They checked them. Fifteen of the 16 had used drugs, they tested positive for drugs on a criminal prison work release program. When they began to test regularly, drug use went down dramatically. They had discipline--not harsh discipline--but they had discipline for those who did not stay drug free, and it worked. Are those work release people better off because somebody cared enough to test them, to stay on them, to discipline them when they failed? Yes, they are. Jay Carver, who we brought to my hometown of Mobile, ran the drug testing program in the District of Columbia for many, many years. It was the largest, most effective and efficient drug testing program in the world, I suppose, certainly in America. He said he had people who were testing positive, who had drug problems, tell him they wanted to stay on the program even after their time on it was off. Why? Because it helped them stay off drugs, and they wanted to stay off drugs. That discipline, that testing and reporting, helped them stay drug free. Prison guards--we have had problems with drugs in prisons, and there has been a small number of prison guards over the years who, it has been discovered, were using drugs and also bringing drugs into the prisons. Drug testing among prison guards has caused a big step forward in reducing drug use in prisons. Police departments, fire departments, transportation personnel, private companies and businesses all testify to the great increase in productivity that occurs when you eliminate drugs in those departments. I say to you that drug testing has proven to be effective in reducing drug use. A lot of people have discussed whether or not it can be done in schools and whether or not it is constitutional. I personally believe it is. Certainly it is if parents agree, and if schools voluntarily attempt to offer it as a program, I think we will find perhaps that because certain schools are showing dramatic improvement in reducing drug use, others may want to do it in the future. And if the program doesn't work, well, we will have learned that, too. I suspect if it is properly run, we will have significant drug use reduction, and maybe as the years go by other schools may want to try it and we can develop a more comprehensive program that will improve the fight against drugs. Mr. President, let me mention a few things that are important. Why do we want to talk about drugs when we are talking about tobacco? Why? Well, this is all about children and their health. Let me share with you some statistics. Some say, ``Well, you are just being political; you are just talking about Presidents Reagan-Bush versus President Clinton,'' but we ought to know these factors. I predicted to the people I dealt with that the policies of this administration were going to undermine the successes of President Reagan and Mrs. Reagan's ``Just Say No to Drugs'' program. I see it happening. Let me show you what has happened according to unchallenged statistics throughout this country. For eighth graders, the portion using any illegal drug in the prior 12 months has increased 71 percent since the election of President Clinton. It has increased 89 percent among 10th graders; 57 percent among 12th graders. That is use of any illicit drug. It has increased that much in this period of time, following a time when it had been going down. Marijuana use has accounted for much of this increase, and its strong resurgence among eighth graders is obvious. Use of marijuana in the prior 12 months by eighth graders has increased 146 percent since 1992. Yes, tobacco is important, but now we have an indication of why parents say drugs are their No. 1 concern. Since the year President Clinton was first elected to office, among 10th graders the annual prevalence increased 129 percent, and among 12th graders, 76 percent since 1992. This is something we ought to have talked more about in this country. I do not think the American people fully understand that policies do have impact, that leadership does count. If you are sounding an uncertain trumpet, then you have a real problem. I remember the first drug adviser to President Reagan before you had a drug czar. Dr. Carlton Turner was from the small county in Alabama where my mother is from. I got to know him and watched him. He came to our community and he talked about the drug issue at a civic club, my Lions Club. While he was there, somebody raised their hand and mentioned a rural county. He said the No. 1 cash crop in that county is marijuana, ``ha, ha, ha.'' Dr. Turner jumped down that person's throat. He said, ``I don't want you ever laughing about drugs. This is very, very dangerous.'' He had a Ph.D. and had studied marijuana. That was his field of study. He said, ``We should never be laughing about it. This is a serious matter. We, as a nation, need to send a clear, unequivocal message of intolerance to drugs, and we need to stand by it. And you, as leaders in your community, need to do the same.'' I thought that was a very good message. I never forgot that. That was in the early 1980s. We started joking about, ``I wish I'd inhaled.'' We have more drug use references in rock music, more drug use references on television and in movies than we had before. That is bad. It is one of the things I think is driving this increased use. Daily use of marijuana, according to the survey, continues to rise by even younger and younger people. More than 1 in every 25 of today's high school seniors is a current daily marijuana user, according to the PRIDE study, which is a good study-- that is an astounding statistic--with an 18.4 percent increase since only last year. While only 1.1 percent of 8th graders used marijuana daily in 1997--1 percent is a lot of 8th graders using drugs. That is 1 out of every 100 that are daily users. That still represents an increase of 50 percent since 1992. LSD has increased. That is Dr. Leary's ``get high'' drug. It has increased over 52 percent. It has increased 50 percent among 8th graders since 1992. More than 1 in 20 seniors in the class of 1997 used cocaine this year, a 12.2 percent increase over last year. That is cocaine, a highly addictive drug. Crack-cocaine use has continued its gradual climb among 10th and 12th graders. Since 1992, annual cocaine use is up 87 percent for 8th graders, 147 percent for 10th graders, and up 77 percent for 12th graders. Those are big increases. That is a real societal problem. That is why parents listed it as such a high priority with them. So I want to say to those who express their concern about tobacco and its damaging health impact on children, they are correct. But as you know, marijuana, Mr. President, is, I think, 40 times more carcinogenic than tobacco. It is a highly carcinogenic drug, in addition to the adverse effects such as habituation and other problems. We know, for example, learning skills go down when marijuana is used. Kids grades drop, and they lose their motivation to work. That is a characteristic of marijuana use that ought not be dismissed lightly. It is a very serious drug. So I just say this, Mr. President--I see the Senator from Arizona has returned to the floor, and I know he has many things he would like to say--but I salute Senator Coverdell for his outstanding effort to improve this bill with a tough antidrug initiative. It will be effective. I believe the one part of it that I have discussed mostly today, the part that allows drug testing for those high school students, whose parents agree to it, could be a turning point in our effort to reduce drugs among teenagers, to make their lives healthier and richer as time goes by. My experience, as a Federal prosecutor and as chairman of the Youth Juvenile Crime Subcommittee of the Judiciary Committee, convinces me this is the right course for us to take. I hope that we will continue to pursue it. I hope this amendment will be made a part of the bill, and I know it will strengthen it. I yield the floor. Mr. McCAIN addressed the Chair.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I rise today to say thanks to those who have gone before us. Monday marks the 130th year of our country's official observance of Memorial Day. It is a day America dedicates to remember all those who fell in defense of this country. On Monday, many across the land will bow their heads in silence for a few moments and remember the patriots of our past. There is no way to measure the impact on the lives of those who have lost someone to war. Certainly on this Memorial Day, many will mourn the youth and joy of loved ones lost. This is a day for the heroes, known and unknown, who died on the field of battle so we might be free. Mr. President, I salute every soldier, airman, marine, coast guardsman, merchantman and sailor who put themselves in harms way and who forfeited their lives so that members of future generations would have the opportunity to stand in this chamber, on a day like today, and speak without fear. I have never, nor do I ever wish to know, the fear and suffering that many of these brave men and women surely experienced. It has been said and I would agree, that it is best we leave the understanding of their sacrifice in God's hands--only He can truly know the full measure of what was lost and what was gained. Our responsibility is to acknowledge their sacrifice--to remember that it was made and the reasons for which it was made. Monday, Memorial Day, is the day that our country should unite in one spirit to remember those who purchased the freedom we and our loved ones enjoy. Former President James A. Garfield, at the first national Memorial Day observance, said ``we do not know one promise these men made, one pledge they gave, one word they spoke; but we do know they summed up and perfected, by one supreme act, the highest virtues of men and citizens. For love of country, they accepted death, and thus resolved all doubts, and made immortal their patriotism and virtue.'' We should all pause with great gratitude on Monday and look to the future with the greatest of expectations for what the 21st Century holds for us, our children, and our children's children. Our fallen patriots gave everything they had to extend freedom beyond the reach of most of our lifetimes. Mr. President, Memorial Day is not only about remembering the men and women who made the Supreme sacrifice while defending the American way. It is about acknowledging and protecting the ideals they died for, so that their sacrifice shall not have been made in vain. Brave Alabamians have been among those who have fought so valiantly and are among the hundreds of thousands who died in World War I, World War II, Korea, Vietnam, Lebanon, Panama, Grenada, and the Persian Gulf. They deserve our deepest respect and honor. God bless these fallen heroes. And may God continue to bless the United States of America.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, is there an order of procedure, informal or otherwise?

Mr. SESSIONS. I thank the Senator from Massachusetts for summarizing many of the very significant restrictions that will be placed on the tobacco companies if they participate in the settlement. But I really do believe, and can say with great confidence, that we are not dealing with a question of immunity when an industry agrees to pay $750--$70 billion in payments to subject itself to many other controls and limitations. That is not immunity. And in fact, they have agreed, in addition, to pay $8 billion into a fund that would be available for individual liability lawsuits--each year, $8 billion. It goes up according to the cost of living index. So I just say, this is a remarkable settlement. And it reminds me of the case in which the client sues and gets everything he wants but he still wants to keep suing because he wants to get a drop of blood. Now, let me say this. I am not a defender of tobacco. I do not take any money from the tobacco industry. I believe it is a very damaging product to people's health. I know that as certainty as I am able to know anything. I oppose its use. I believe anything we can do particularly to keep youngsters from getting involved in tobacco is good, because it is more difficult for them to quit once they start, and they become addicted quicker at a younger age. It is a very insidious product, and we ought not to do anything that would undermine our effort, that I think has bipartisan support, to deal with smoking in America. Let me talk about this subject on a broader basis. And I think our Members ought to consider this on both sides of the aisle. It is above partisan politics. In my view, the law is too much with us late and soon. We have too much litigation. Courts are clogged all over America with more and more lawsuits every day. People cannot get speedy justice. Cases are backed up. Costs have increased. And it is not a pretty sight. As policy-setting Members of this Government of the United States, it ought to be our goal to reduce that litigation, to do what we can to obtain justice in ways that do not require citizens of this country to expend extraordinary sums of money over long periods of time for only modest gain at the end of it. That is a principle in which I believe deeply. I have been a practicing lawyer all my career. I served as a U.S. attorney for almost 12 years, and I practiced law in private practice. Let me just mention the asbestos litigation situation. Asbestos caused a number of different diseases that have resulted in large payments by the asbestos companies. This was handled, in the normal litigation of America, in the torts lawsuits that have been filed. Over 200,000 of those lawsuits have been filed and concluded, 200,000 more are pending, and it is estimated there may be another 200,000 filed. Now think about that. That is 600,000 lawsuits, perhaps more, having to wind their way through the court system, with lawyers, and fees, and costs, and expenses. According to testimony we had before the Judiciary Committee by one expert who studied this matter, less than 40 percent of the money paid by these asbestos companies actually got to the victims, the people who were suffering disease because of their exposure to asbestos. Just think about that. Less than 40 percent of the money they paid actually got to the victims of asbestos disease. I think that is unacceptable. That is an unjustifiable event. It does not reflect credit on the legal system, and it does not, even more so, reflect credit on the Congress and the Senate of the United States, because we should have legislation that can deal with that in a more efficient way. So I just say, I am troubled by the prospect that we will allow litigation to spring up all over America, that we can have a fund there to pay it, that we will have not 200,000 smoking suits, as they had in asbestos, but perhaps 500,000, 800,000, a million, several million lawsuits filed--tens of hundreds, maybe thousands in every community in America, large and small, where lawsuits will be filed, clogging the dockets of the courts, taking up weeks to try, and incurring great expense. It seems to me we can do better than that. I am certain that we can do better than that. What happens when a lawsuit of this nature is filed? And I have to agree with Senator Gregg from New Hampshire: This bill is not effective in what it intends to do. It needs to be amended. And Senator Jeffords from Vermont and I will be introducing legislation on this bill, an amendment, that will distribute moneys that are paid in a fair and equitable manner, with the minimum of cost and the quickest possible turnaround time, so the people who are ill can receive compensation which they deserve, receive it quickly, without even having a lawyer. Under the court system approach, just turning over tobacco lawsuits to litigation throughout America, we are talking about individuals having to hire attorneys. The Wall Street Journal has already noted that attorneys--I believe, in Detroit or Chicago--are advertising for tobacco clients now. They are already advertising for clients so they can file lawsuits. Traditionally, they will charge at least one-third, probably more of them will charge 40 percent of the recovery on a contingent fee basis. That means 40 percent of the money paid out by the tobacco company won't go to the victim, but will go to the attorneys. In addition to that, there will have to be trials, court costs, jury costs, deposition costs, medical costs, expert witness costs, and great delays. Before you can get any money out of this bill, you have to have a final judgment. Normally that would mean a judgment by the supreme court of the State, which may be 2 years or more in the offing. The result of that, I suggest, for people who are suffering from lung cancer is that many of them, unfortunately, would not live to see any recovery. The Senator from New Hampshire is also correct that it appears under this bill the tobacco companies decide who gets paid. I don't know how that came about, but it indicates they pay whoever they want to pay and that counts toward their payment into this fund. That is not a rational way to see that injured people get paid. They should not be required to do that. It will also cause a race to the courthouse because you don't get any money until you have a final affirmance of your judgment, and only then can you come to the tobacco company and get your payment. We should not be put in a situation in which two equally deserving claimants have filed a lawsuit and one wins and he has a fast court system and he gets into the fund and gets his money first and another one takes a long time before he ever gets his final judgment, before he gets money. We are creating a system that will be aberrational. It will be aberrational in a number of other ways. Some States will be favorable to these kind of lawsuits. Some States will not. Maryland has already changed its law to make lawsuits against tobacco companies easier to file. Other States may do that. Traditional defenses such as assumption of the risk and contributory negligence may be vitiated by legislation or court rulings, and lawsuits will move faster and more successfully in one State, whereas another State that adheres to traditional rules of law may not allow cases to move forward at all. It may be unsuccessful wholly in one State. Indeed, we could have one or more States virtually bankrupting the tobacco industry themselves if they were to have unfettered litigation cases of this kind. As a person who has practiced law for a long time, who has been in court on a consistent basis, I can tell you that the prospect of hundreds of thousands, maybe a million tobacco lawsuits being filed, burdening the judges and courts to a degree they have never known before is not a good thing. The taxpayers pay for that. Some will say it is a free-market deal. Just let people file their lawsuits and the government is not involved in it. The courts are the government. Courts are the government. The taxpayers are paying for the judges, the jurors, the clerks, the court reporters and everybody that manages a courtroom, and the courtrooms in which these cases are tried. The taxpayers are intimately involved in that. We can do a lot better than this. I just say we cannot allow a repeat of the asbestos litigation situation. We cannot, as Members of this body, allow a situation to occur in which less than 40 percent of the money paid out actually gets to the people who are victims of the crime. They will say, well, in this bill they have arbitration over attorney's fees. I have heard that. So I have gone back and read the legislation. This is the arbitration: If you are unhappy with the agreement you have with your attorney, you can go to an arbitrator. The attorney gets to name one member of the panel, you get to name one, and those two select a third. But if you have a standard agreement with them on a one-third or 40 percent contingent fee basis, 40 percent of what you recover goes to the lawyer if you have that kind of an agreement. That is what the arbitrators are going to affirm. They are not going to undercut written contracts between attorneys and clients the way this thing is written. So there is no protection here to substantial fees being paid to attorneys in all of these cases. We know it will take years for them to be concluded. There will be a race to the courthouse to get judgment. Some States will allow suits to proceed. Others will not. Some people will draw a favorable jury, win a big verdict, $100 million; somebody else will have a jury that is more conservative and renders no verdict, zero verdict. This is not the way we ought to do it. On this legislation, we begin the process of establishing a sane and rational method of distributing the funds that ought to go to those who have been injured by tobacco. However, the problem with it is it does not go nearly far enough. This is a classic mass tort situation. The greatest mass tort situation, perhaps, in the history of mankind in which millions of Americans have smoked for a long time and they have hurt and damaged their health because of it, and as a result of that they now want to seek compensation. First, let me say something. I have to be very frank. No individual person has succeeded in a lawsuit against a tobacco company, primarily because of the traditional rules of law that say if you undertake a dangerous activity and you are injured in that, you cannot sue somebody and ask for compensation because of it. The way this bill is written, I believe the likelihood is we will have more States like Maryland amending their law, more pressure on judges and juries to get around the traditional defenses to these kind of activities, which is somewhat dangerous, because what about the liquor companies and cirrhosis of the liver or other kinds of diseases that come from other kinds of products. Is there no barrier to that anymore? I will say we have a major mass tort situation. We ought to deal with it in a comprehensive manner. We should not allow an unfettered lawsuit flood to dominate the American court system, resulting in some people winning large verdicts, others getting nothing, delay, people dying before they have any recovery. Senator Jeffords and I will be introducing a bill that will say if you have a serious disease and have been disabled because of your smoking, you can file a claim and within 90 days you can be paid. You will not even have to have an attorney. We will limit the cost to 10 percent and we will dispense the moneys based on the seriousness of your disease, the seriousness of your disability and whether or not it is connected to smoking. That is the kind of thing we can do. We can use this money that the tobacco companies in this litigation demand that they pay-- $8 billion a year--and we can use that to compensate in a prompt and fair way those who have been injured. To do otherwise is just not a good way to do business. It will enrich lawyers, it will burden the courts, and it will guarantee an irrational distribution of funds to those who have been injured and minimize the amount of money actually getting to those who deserve to be compensated. I will say that I do believe that this amendment should not be passed, that the payment of $755 billion, the agreement to give up certain constitutional rights such as free speech and advertising is the kind of settlement that is justifiable and proper under the circumstances. We would make a historic step forward for America if we can develop a way to ensure that those who are injured in a mass injury-type situation such as this are compensated in a realistic and prompt way. I believe we can do that. For these reasons, I must ask my fellow Senators to vote no on the Gregg amendment. I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. I will reserve the time on this side.

Mr. SESSIONS. Mr. President, we are looking at a situation that is literally intolerable. It is not acceptable to have these kinds of fees. I know contracts were entered into, but nobody expected it to break the way it did. We have law firms in States that literally did only a few weeks' worth of work; States are going to recover billions of dollars, and they are going to get 15, 20, 25 percent of that recovery. We already have provisions in this bill, agreed to by the President and the trial lawyers and the members of the other party, to contain some of these fees in a poor and ineffective way. I say if we can do it that way, let's do it straight up. Let's have a fair fee per hour: The more hours you work, the more money you get paid. We have evolving all sorts of contracts in this case and abrogating them, and we can certainly make a rational agreement on attorneys' fees. I yield the floor.

Mr. SESSIONS. Mr. President, I would like to mention a few things. First of all, attorneys' fees do affect the settlement because it is money otherwise available to be paid by the tobacco companies that could be used for health of the children and the good things this bill seeks to do, for that money is directly usable for good things, and it ought not to be given away in unprecedented windfalls for attorneys, many of whom did little work. I know the distinguished Senator from Minnesota said that his lawyers did a lot of work. And I think that is probably true. Perhaps the Minnesota attorneys have done more work than any other group of attorneys in the country. And they were paid, I believe, $450 million. That is not $2.8 billion. That is 5, 10 times what they made. So they did a lot of work in Minnesota, and they are going to get fees far less than this settlement would call for. People say we should not mess with the contracts. But the other arguments from the people opposing the Faircloth amendment are: Don't worry about it. Florida reduced their fees. Although Texas hasn't yet, they may yet. And there are arbitration policies to reduce fees. So they are already admitting it is appropriate to reduce these fees. And as was noted, we contain fees for doctors and lawyers and every other kind of litigation--on many other kinds of litigation in the country. And we are comprehensively dealing with a health problem that is significant. Now, we are here setting about to pass legislation to control abuses by tobacco. And I submit we can control abuses by attorneys. Let me make one more important point. With regard to this litigation, States have the right to opt out. They are not required to be bound by this and, therefore, the 10th amendment, in my opinion, would not be implicated. They could opt out and not be bound by this agreement. But they have sought our legislation to comprehensively deal with this in a fair way. And that would call upon us, I submit, to contain the abuses of the attorneys fees. Mr. President, I conclude my remarks at this time and recognize Senator Enzi from Wyoming, who I understand wishes to make remarks, unless our time has expired and you want to go back to your side, which you should be entitled to.

Mr. SESSIONS. Mr. President, I would like to make a----

Mr. SESSIONS. I did not hear the President.

Mr. SESSIONS. Yes. I ask unanimous consent that I be allowed to use time from the Senator from North Carolina.

Mr. SESSIONS. Mr. President, 15 minutes.

Mr. SESSIONS. Mr. President, this is, indeed, an important issue. We have heard a lot today about validity of contingent fees. Historically, contingent fees have not been favored by the law. They have been scrutinized. Lawyers ethically were supposed to take fees on a paying basis unless the person could not afford to hire a lawyer--but we have always affirmed a contingency fee basis. I am not here to criticize that. I am not. This legislation in no way would stop private attorneys from going forward with contingent fee arrangements with their clients. As an attorney, I have filed cases on an hourly fee basis and on a contingency fee basis. I don't think there is anything wrong with that and I don't mean to suggest there is. But in the history of litigation, in the history of America, in the history of law, in the history of the world there have never been fees equivalent to the ones we are talking about today. They go beyond anything we can imagine. These fees are beyond any payments that have ever been known in the world of law. I call them the mother of all attorney's fees. This is a serious matter. The attorneys general of the United States have come to this Congress, this Senate, and they have asked us to approve a settlement, to add things to it, to review it and comprehensively deal with this matter. So one of the things that we have to deal with is attorneys' fees. Under the Constitution, the Congress is empowered to regulate. We do it when we enact a minimum wage. A person has a contract with somebody at $4 an hour, and we say the wage ought to be $5 an hour; that contract is vitiated. We have a lot of containment of attorney's fees in America. Indeed, with regard to Social Security cases, there is a limitation on attorney's fees. With regard to the Criminal Justice Act, the limit is $75 an hour. Under the Equal Access to Justice Act, attorney's fees are limited to $125 an hour. Limitation of attorney's fees is common. We have had a number of research papers written on fee limitations. A professor from Cardozo School of Law has written comprehensively on this legislation and says it is, indeed, constitutional. To illustrate the amount of money at issue in these cases, I would like the people of this country and the Members of this body to think about this: The yearly general fund budget for the State of Alabama is less than $1 billion. In Texas, a judge has approved payment of $2.3 billion to a handful of lawyers for this litigation. They approved that kind of fee. In Florida, attorneys are still battling to obtain $2.8 billion in fees--that is two thousand eight hundred million dollars--two thousand eight hundred million dollars. That is absolutely unconscionable, as a judge in Florida said, and as anyone who has any sense of decency ought to understand. We have been asked to pass legislation dealing with this health care problem and try to do something about teenagers and smoking? We have a right to pass legislation dealing with attorney's fees. Let me share something with you. People may not understand exactly how all of this has occurred. I have a transcript of a recent 20/20 program about the Florida attorney's fees debate. Let me share some of what was said in that program. The segment is entitled, ``What A Deal.'' Hugh Downs. What is your time worth? How does $7,000 an hour sound? That's what some lawyers want to be paid for their work on Florida's suit against the tobacco industry. Each and every one of them could become a millionaire many times over, just from this one case. So, did they really earn their fee? Well, John Stossel tells us how the lawyers came to demand a king's ransom for their work. John Stossel. The children are supposed to benefit from the new money for anti-smoking programs. And later the governor invited in some children and dummied up a check to celebrate the first $750 million payment. But now it turns out that Florida's taxpayers may not get as much of that money as they thought because Florida lawyers are in a legal battle over how much money they should get. Montgomery, the plaintiff's lawyer in the case, says they deserve $2.8 billion. That's right--billion, says Stossel. He (referring to Mr. Montgomery) doesn't exactly need the money. This is his multimillion-dollar house in luxurious Palm Beach right next to the ocean. The house is so huge, it looks more like a palace. Even his Rolls Royce and his Bentley live in a garage that's bigger than many houses. Montgomery got this rich suing carmakers and hospitals and insurance companies. Bob Montgomery. So this is my putting green, and this is my sand trap. And what I do is I have these balls, and this is where I drive them. John Stossel. Out into the water? Bob Montgomery. Out into the water. He has so much money, he doesn't worry about his golf balls. He hits them out into the ocean. John Stossel. The inside of the house is even more grand. Montgomery has a vast art collection. Another attorney, Mr. Fred Levin, defends the fees. Fred Levin. It was contracted. John Stossel. So who made this contract? Fred Levin. Well, the State did. It was a valid, legitimate contract. John Stossel. Fred Levin helped the governor put the deal together. You're a private lawyer? (Asked of Mr. Levin.) Fred Levin. Right. John Stossell. What are you doing there? Just giving advice? Fred Levin. Well, yes. John Stossel. Friendly advice? Fred Levin. Yes, I was a--I'm a good friend of the governor's. John Stossel. Friendship starts to explain how some of these private lawyers were selected and ended up with a contract that says each now is entitled to hundreds of millions of dollars. It began four years ago, when Levin came up with a scheme to use Florida's legislature to make it easier to win a suit against big tobacco. Fred Levin. I took a little-known statute called a Florida Medicaid recovery statute, changed a few words here and a few words there, which allowed the state of Florida to sue tobacco companies without ever mentioning the word ``tobacco'' or cigarettes. The statute passed in both the house and the senate. No one voted against it. John Stossel. Well, did the people know what they were voting for? Fred Levin. No. And if I told them, they'd have stood up and made a--you know, they'd have been able to keep--keep me from passing the bill. John Stossel. This made the suit much more winnable? Fred Levin. Oh, God. It meant it was a slam dunk. John Stossel. And who would get to be the lead lawyer on this slam-dunk offense? Fred Levin. Initially, I was assuming that I would be bringing the case. But then they said, ``Fred Levin's going to make all the money.'' John Stossel. Fred Levin's doing a scam here. He's changing the law so he can get rich. Fred Levin. So I went to the governor and I said, ``Listen, let me help you get a group of lawyers together, our dream team, and I'll get out.'' Mr. Montgomery suggests that if he lost the case, he would have been out $500,000. He probably has that much invested in all of his automobiles in this mansion he has. He suggested his cost was $500,000. John Stossel. Am I missing something here? The controversy has become, should the dream team get billions from the 25-percent deal they have with the State or from arbitration? My question is, why do private lawyers get so much of the State's money in the first place? When this construction company got the contract to replace this Florida bridge, they had to compete against other construction companies. There was competitive bidding. To win the job, they had to show they were qualified and submit the lowest bid. All States have such rules to prevent politicians from funneling projects to their friends. But that's not what happened with the lawyers. Here, Fred Levin called some friends. You picked the dream team. Then Mr. Stossel discussed how the deal was negotiated and the fact that Mr. Levin and the Governor were close, riding in the same car together. Then Mr. Stossel asked Mr. Levin why the Governor was spending the night at this trial lawyer Montgomery's house. Fred Levin. Well, when he's in Pensacola, he sleeps at my house, so-- John Stossel. That week, Levin threw a big party. His estate's so big he buses the guests in from where they've parked their cars. The Governor came, of course. And they talked about how the Governor's guests had raised a lot of money for him. As Professor Lester Brickman of Cardozo Law School said: It's an outrage. It's more than greed, it's a scam. John Stossel. Law professor Lester Brickman, who's an expert on legal fees, says it's not right to hand such a lucrative-fee case to a friend. This is the issue we are talking about today. I was attorney general of Alabama when this litigation was being suggested. I had groups of trial lawyers come to me and ask me to file the litigation. We had meetings and we discussed it. They wanted a contingent fee, as I recall, 25 percent of the recovery. I remember saying, ``Well, some of the States are moving along fine in this litigation. If they win, I assume Alabama will be able to win with our own staff. I don't believe we need you to represent us.'' They said, ``Well, you don't just hire us, you can hire some of your law firm friends, too. You can cut them in on the deal.'' That was one of the things they suggested to me. I said, ``We're not hiring lawyers for friendship. We're not hiring lawyers to pass out funds to people we want to give money to. If we need a lawyer, we'll hire a lawyer.'' I didn't do so. Basically, what I had predicted came true. When the end came, the tobacco companies settled all over America. Some States had hired lawyers on a contingent-fee basis, lawyers that may have only worked a few weeks or months, and then began to come in and claim 25 percent of $2 billion, $3 billion, $15 billion. This is supposed to be fair and just? I submit that it is not. My good friend and chairman of the Judiciary Committee, on which I serve, expressed real concern that we ought not attack contingency-fee contracts, as these contracts benefit people who cannot afford to hire lawyers on an hourly basis. I don't intend to undermine normal contingent-fee contracts, and nothing in our amendment does that. I think everyone needs to know that this McCain bill that the administration has approved and signed off on, and the trial lawyers, I suppose, have signed off on, calls for a panel of arbitrators. It consists of three people: The Castano plaintiffs; I understand one of them may get $50 million out of this litigation. Plaintiffs would have one member on the arbitration panel. The other members of the group would be the manufacturers and the attorney general. They get to pick the second one. But you see, there is a problem there, because the accord really is between the manufacturers and the attorneys general and the plaintiffs' lawyers. I submit that they are not defending the best interests of the people--they signed those contracts together. In this situation, the plaintiff lawyers have placed themselves in-- and I don't know any other way to say it--a conflict-of-interest position. When the tobacco companies agreed to settle, they went to the lawyers on the other side and said, ``Now, let's talk about your fee. We won't pay all the money to the State and let you be paid by the State, because that would look bad. We'll just have a little side agreement, and we'll pay your fee, and it won't come out of the State's money.'' The attorneys general agreed to that. So the attorneys general are in on the agreement. And the plaintiff lawyers are in on the agreement. And the tobacco companies are in on the agreement. Anybody who knows anything about economics and thinks realistically about this matter will know there are not two separate pots of money. The attorneys' fees and the recovery by the States are all payments by the tobacco companies to get these people off their backs. The tobacco companies do not care whether lawyers get the money or whether the children of the State or the children of the United States get the money. They are not concerned about that. They want this litigation over. So this is what we have. The more you pay the lawyers, the more likely they may be to compromise the interests of the State and the children. Every dollar that goes to them is a dollar that would not go to the children. The third member of this arbitration panel is picked by the plaintiffs and the manufacturers and the Attorney General. So you have more of the same. This is not an effective arbitration panel. It is a stacked deck. I am not sure some of the people who defended this panel have fully thought that through. We will need to talk to them about that. But this is not an acceptable panel. Some people say, ``Well, Congress can't undermine contracts.'' We limit the minimum wage. And Florida has limited attorney's fees--at least so far they have tried to. People on the other side say, ``Well, it's not so bad. Florida limited their attorney's fees contracts. So if Florida can limit that contract, why can't we limit their fee?'' But in Texas they did not. In Texas a judge has approved $2.3 billion in attorneys' fees. I will point this out to you: I have a recent article about the owner of the Baltimore Orioles making over $1 billion from these attorneys' fees, $1 billion--B-I-L-L-L-I-O-N--$1 billion. I suspect he probably is making more off the lawsuit than he has made on all of his other investments. Do you know how many billionaires there are in the United States according to Forbes? I had my staff check. There are about 60. I wonder how many new billionaires these attorneys' fees will make? Who will pay for this wealth transfer? Who will be making more Montgomerys with multimillion-dollar mansions on the beach, who hit their golf balls out into the water because they have so many they don't care, and have world-renowned painting collections? I am not weeping at all over the poor state of these attorneys. I think it is time for us to have a clear policy about what we ought to pay. This body voted last year that $250 was a fair wage for them to be paid per hour, and I think it is, too. I support this amendment.

Mr. SESSIONS. How much time do I have left?

Mr. SESSIONS. The 15 minutes?

Mr. SESSIONS. I will share a few thoughts as we discuss this thing. I think the feelings are strong on both sides. I suggest that Federal action is appropriate here because the States have asked for a comprehensive settlement of this matter. The legislation that we have proposed is a comprehensive piece of legislation. It involves where the money goes. We don't agree with the States on everything that they say, and we will be doing things differently in a number of ways. It will represent the consensus of the House and the Senate and the President, if he signs it. I think it is perfectly appropriate for us to deal with the problem of just how much these litigators make. When you have a young lawyer taking on a big company and winning a contingent fee verdict and making some money off of it--we are not trying to undo that. We are talking about a massive effort, nationwide, that has resulted in incredibly huge profits or windfall attorney fees that ought to be contained by the very nature of this. We have a right to legislate that. Whereas at this stage Florida has reduced the attorney's fees that were to be awarded of $2.8 million, one of the lawyers, I think, is still contesting that, and they may not prevail. Or if they do, it is just proof of the fact that courts and legislative bodies have the power to deal with excessive fees in this kind of circumstance. Finally, they say, well, there is an arbitration panel in this agreement. I must tell you, the configuration of that panel is unacceptable. It is unacceptable for two different reasons, really. It is unacceptable, No. 1, because it doesn't even come into play unless the attorney involved is unavailable to agree with the plaintiff. The plaintiff is the attorney general or, I guess, representing the State, of the people. I am on page 438 of the agreement. It says you can't have arbitration unless the attorney involved--that is, the private plaintiff lawyer--is unable to agree with the plaintiff--that is, the attorney general who employed that attorney--the attorney general, with respect to any dispute that may arise between them regarding their fee agreement. Why, this is the fox guarding the hen house. These are the same people that agreed to the fees. We don't have a good thing there. Then, when it talks about submitting it to arbitration, the makeup of the panel shall consist of three persons, one of them chosen by the plaintiff--that is, the attorney general--one of them chosen by the attorney--that is, the plaintiff's attorney--and one of them chosen jointly by the two of them. That is who is making the decision--the same people that got us into this fix. I submit that is not an effective arbitration panel and it is not something that at all deals with the seriousness of the problem. Lester Brickman, when he was interviewed on ``20/20,'' the professor from Cardozo Law School, made these statements: ``These are politicians involved who are stroking the backs of lawyers because lawyers have stroked their backs before and may yet stroke their backs again. So I think the public perception here, which is probably pretty accurate, is that it smells.'' I want to make one more point. I think this is really important. I can see how that could be of confusion. The Senator from Massachusetts says there really are two pots. This is fundamental when you think about it. It is not two pots. There is one pot of money; that is the tobacco companies; and they will pay it over to get rid of this lawsuit. And they are willing to pay as much to the lawyers to get them to agree to the settlement. It is not a healthy relationship. It is not a healthy relationship. And the suggestion that the tobacco company can go over here to the side and enter into a side deal with the lawyers who are supposed to be representing the State and the people to pay their fee, and that is not going to affect the overall settlement, is not sound thinking. It is the same money, and every dollar they agree to give is one dollar less that goes to the people and victims of smoking. I believe the present proposal is not effective at all. I object to it. I believe the Senator from North Carolina has a proposal that will fix this matter. It will be a generous fee for these attorneys. They worked on it for 4 years, and they have 10,000 hours. They get paid $250 for every one of those hours. That is perfectly generous. I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I rise to speak on behalf of the Religious Liberty and Charitable Donation Protection Act of 1998. It is an honor to work with my good friend from Iowa on this important piece of legislation, and I thank him for his leadership on this issue. In an important 1970 Supreme Court case upholding tax exemptions for churches, Chief Justice Burger spoke of the Government's relationship with religion as being a relationship of ``benevolent neutrality''. It seems more and more that the Government's ``benevolent neutrality'' is becoming harder to discern, often being replaced with what appears to be ``outright hostility''. A good example of this is found in Federal bankruptcy law. In the 1995 case of ``In re Tessier,'' a couple filed for bankruptcy under Chapter 13. Out of their net monthly income of $1,610, they proposed to continue making contributions to their church in the amount of $100 per month. This couple had deeply-held religious convictions about donating to the church as part of the exercise of their religious faith. They proposed spending only $200 per month on food, and nothing on entertainment, recreation, health insurance, life insurance, cable television, telephone, or even electrical utility service. Nevertheless, the Bankruptcy Court ruled that during the 5 year duration of their Chapter 13 plan, this couple could not make the proposed contributions to their church. This was in spite of the fact that the Court would probably have allowed them to spend that sum of money on entertainment or recreational expenses. The matter of pre-bankruptcy contributions to a church or charity is also a matter of much concern. Several courts have actually interpreted the bankruptcy law to require churches to refund donations made to them in the year prior to a debtor filing bankruptcy. In making such rulings, the courts hold that donations to the church are ``fraudulent conveyances''--that is, by giving the money to the church without (according to the courts) receiving something economically valuable in return, they are defrauding their creditors. In reality, there is no fraud involved. And of course you can imagine the potential burden on small churches that may be just getting by financially--churches that have done nothing wrong--to find that they are required to repay a year's worth of contributions received from a faithful contributor. The Grassley-Sessions bill is a commonsense bill that would clarify the Bankruptcy law to ensure that our courts will no longer make the sort of rulings that I have described. Under our bill, contributions of up to 15% of a person's income, or a higher amount that is consistent with an individual's past practice of giving, will not be considered fraudulent when made during the year prior to filing bankruptcy. Consequently, innocent churches and charities would not have to repay such contributions. Secondly, our bill will allow debtors under Chapter 13 repayment plans to make charitable contributions of up to 15% of their income. If bankruptcy law allows for spending on recreational expenses while under a Chapter 13 repayment plan, it should also allow an individual to tithe to their church or make reasonable charitable contributions. Mr. President, this is an important bill which will help to restore the Government to its rightful position of benevolent neutrality toward religion. It will provide necessary legislative guidance in an area of bankruptcy law that has gotten off track. I urge my colleagues to join with me in support of this legislation. Mr. President, I am honored to support this legislation. Senator Grassley has done an excellent job in identifying an unfair component of the Bankruptcy Act. If an individual pays money to a nightclub, a casino, or to any other recreational activity whatsoever, that person who received the money does not have to give it back to the bankruptcy court. If they had given money to a charitable enterprise or a church, they could be required to give it back. And in chapter 13 where an individual pays out their debts on a regular basis, the courts have denied them the right to give money to charitable institutions as part of their regular payments while at the same time allowing them substantial amounts of money for recreational expenditures. We think that is unfair. We think this bill is a sound way to correct that problem. I am honored to work with Senator Grassley and support him in this effort.

Mr. SESSIONS. Mr. President, I move to reconsider the vote by which the bill passed.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I am very, very reluctant to rise in opposition to this conference report as it is presently constituted, and in support of the motion to return this legislation to the conference committee. I believe, however, that returning this legislation to the conference committee is the proper and appropriate thing to do. Having said that, I feel that there are some marvelous provisions contained within this bill. For example, agricultural research is very important, and this legislation will strengthen and improve the work being done to advance this field. Similarly, crop insurance will be made sound under this legislation. Both are matters of critical importance to me. I do not believe that sending the legislation back to the conference committee to fix this bill's entitlement expansion in the Food Stamp Program will kill this bill or extraordinarily delay it or in any way jeopardize the fundamental reforms that are contained in it. Sending the bill back to conference simply reflects routine business practices in this Senate. Under this legislation's expansion of the food stamp entitlement, 250,000 new people will be added to the food stamp rolls. In my last campaign, I talked about the fact that the President had committed to undermining the welfare reform bill that was passed several years ago. These provisions have proven that statement to be true. This bill expands from 5 to 7 years the amount of time noncitizens can draw food stamps. It is an expansion of that policy, and it is the kind of expansion I think is not justified. Will we next year come back for 10 years? Will it be 15 years? What will be the next revision? There will always be pressure for us to expand and expand and expand. I think we have to show some integrity and some fortitude on this issue. And so, with great reluctance, I have to say to the distinguished chairman of the committee and the members of that committee that I cannot vote for this bill. I cannot vote for it because I told the people of Alabama I was not coming up here and voting for the undermining of the welfare bill that was passed last time. I cannot justify this expansion of the Food Stamp Program. So if we cannot send it back, I will be forced to vote no. I will hate to have to do that. I think supporting this motion to recommit the bill is the best way to address this issue. I thank the Senator from Texas for his leadership and courage in raising this important issue, because we have to get to a point in this country where we can contain our spending tendencies, and if we do not, we will never maintain a balanced budget. Thank you, Mr. President.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I want to congratulate the Senator from Nebraska, Senator Roth, and others for introducing an outstanding bill. I know they have worked hard and dealt with a number of difficult issues. This is, I am sure, a good-faith effort to involve the union in the process. But the truth is, as we have had a chance to look at the law, it just won't work. Senator Fred Thompson has made the point eloquently and clearly. His amendment is the only way we can handle this circumstance. We should not, and must not, agree to allow a clear conflict of interest to be waived, according to the Office of Government Ethics. If the Office of Government Ethics were to decide this issue, a waiver would not be granted. It is because such a fundamental conflict exists that we should not expect it to. The truth of the matter is that if you sit on the Government Oversight Board and are also a paid union representative, you are being paid by two masters. You can't serve two masters. That is a paid position. It is not a union member serving on the board but a person whose salary is paid by an outside group who is not part of the process. I know many people would like to involve an employees union representative in the IRS restructuring effort. I support this idea. There are many ways a union representative could be involved in the process. I have had many friends over the years who have been members of the Treasury Union. I think they do a good job and help to contribute positively to our Nation's Government. But this is a powerful board that sets administrative rules and principles throughout the agency. I would suggest that the waiver is not of some ethics rule, it is a waiver of the Criminal Code of the United States of America. At least four sections are implicated. It is quite possible that if this union member were to participate as a board member, he would be in violation of perhaps four different criminal codes--statutes. To ask us in this legislation to just blithely waive these statutes, would be a mistake and unwise and would undermine the Office of Government Ethics ability to effectively manage and uphold ethics in government. I was a Federal prosecutor for almost 15 years. I serve on the Senate Ethics Committee. I understand what my colleagues are trying to accomplish. But this waiver is unprecedented, according to the Office of Government Ethics. That means that this has never been done before-- that the U.S. Senate, in a legislative act, has never granted exemption to one person from the Criminal Code of the United States. It is something we ought not to do. I urge my colleagues in this body to vote yes on this amendment. I yield what time is remaining. Mr. THOMPSON addressed the Chair.

Mr. SESSIONS

Mr. SESSIONS. Criminal law of the United States. And I can see, therefore, why the Ethics Committee would suggest it was unprecedented that the U.S. Congress would pass a law to exempt someone from the criminal law of the United States. I hope that is unprecedented. And my complaint, I say to the chairman, just simply is this--to say that I understand what the Senators have been trying to do. I understand their good intent. But I think we are confusing ourselves with the law of the United States. This is a very bad thing. It is a very bad policy. It should not happen. And we need to vote on it. I appreciate the chairman yielding.

Mr. SESSIONS. I say to the chairman, do you see what we are doing here, as a matter of principle, any different than if this body were to pass a law to exempt an individual from the bribery laws?