Even Congress Gets Off its Knees Once in a While
by Hokman W. Jenkins Jr.

Doom hangs over the tobacco settlement from an unexpected
sonrce: congressional selfrespect.
We got a taste last week when Senate Labor members beat up
the deal in hearings. The No. 2 in the Senate, Don Nickles, put it this
way: "A few attorneys general and litigants representing companies,
states and interest groups came up here wIth a big proposal and
dumped it in our laps, saying, "Here is what we want to do, now pass
it."
Members may grovel on bended knee for a thousand dollar
donation, but the groveling is done in the dark of night The story is
different when donor groups, rich and selfinterested like the tobacco
Industry and the trial lawyers, show up demanding in the glare of the
television cameras that their pet schemes he enacted into law. The
electoral Imperative to be seen stiffarming them trumps all.

It would he the industry's biggest miscalculation yet if tobacco
hasn't figured this out.
They claim to he confident: Their matched hikes on ciitrrette prices
last week meant they were huilding a knttv for the $368 billion
settlement. Their $11.3 billion pact with Florida, most dubious of the
slate Medicaid lawsuits, was a mere clearing of the decks: The national
deal would take precedence anyway.
Bill Clinton is meant to decide this week whether to back the
settlement. Up to its eyeballs in the negotiations, the White House
mainjy wants credit for boosting the dollar amount. The Democrats are
in love with the trial lawyers, who'd make out like bank robbens. One
of them is Hugh Rodham, HiIlary's brother, and it might be nice to
have a milllonafre in the family, given all her legal problems.
It's not just that the deal represents, as Joe Califano put it, The
qulotessential corruption of the political process by an offsite cabal of
lawyers and statehouse Intriguers.
Congress is perfectly capable of doing something seedy and
hypocritical about tobacco, but tt would do its own seedy and
hypocriticat thing. It's in business to serve the diverse and jugglabie
interests of its membersthat is, democraticallyrather than as a
drivethrough for statehouse hacks usurping its prerogatives.

And, at bottom, what you have here is a bunch of grimy state
pollticians trying to whip up a cigarette tax hike they could never get
from their own state legislatures. Only difference: Between 10% and
30% of the proceeds wouldn't go to the state treasuries, but into the
pockets of the private lawyer pals of the state attorneys general, as a
sort of commission.

Not coincidentally, the same lawyers, in turn, are big donors to
the political careers of the attorneys general.

Nor is the settlement even a "settlement" in the normal legal
meaning: The lawsuits are ongoing. As the National Law Journal
pointed out, the pact Is little more than an "agreement that both sides
will lobby congress." The states and their lawyers would get their
payoff; tobacco would be let partly off the hook for future cliams.
Oh, and for their iroubie, Potus and he U.S. Congress would
get a shiny new tobacco "policy," without having to do the checking,
balancing or hard thinking the framers intended. There'd be instant
federal authority to regulate nicotinea power virtutially unusable
unless the goal is to make smoking more dangerous (less nicotine
means more tar inhaled) or to create a subsidy for oritanized crime.
There'd be a voluntary promise by tobacco to change its
advertising, obviating any messy First Amendment issue, though how it
would be enforced is inexplicable. But, let us not kid ourselves. The
tax hike is the thing.

Florida set out, in the words of the con tract it signed with its
outside legal guns, recognizing that "smokers pay tobacco taxes, not
the tobacco companies," but somehow "tobacco companies, not smok
ers, should pay" the penalties demanded in the stale's Iawsuiti,e.,
we're punishing tobacco companies here.

How easily this warm and sunny Florida settlement has been
dispensed with. Florida last month settled Its case for $11.3 billion,
and a week later the companies boosted cigarette prices by seven otots
a pack to meet a $750 million payment due the state this month.

Maryland's attorney general let the mask of hypocrisy drop.
He pointed out that, for the states "to get the $368 billion, they have
to keep people smoking."

If Congress needs further enlightenment on this score, it might
consult Bill Pryor, attorney general of Alabama. His office hired its own
team of lawyers to look into a Medicaid suit. Their report found the
arguments "at best weak and at worst bizarre."

He decided not to sue: "The political solution is so much more
simple and fair," Mr. Pryor said. "It would be fine by me if the
Alabama legislature would raise the tax by $1 a pack."

Georgia, Nevada and Colorado also rejected the legal
opportunism of a tobacco suit. Florida considered its case so weak it
passed a special law stripping the tobacco industry of settled, common
law defenses, such as "assumption of risk" by smokers. Even Florid'a
stacked deck might have guarnateed a win but not any winnings. Under
Florida law the tobacco companies woffid have been entitled to an off
set for excise taxes paid by smokers, plus any savings to the state from
smokers dying earlier. Chris May, writing in the Vanderbilt Law Review,
added up the numbers and concluded the state comes cut ahead by $3
billion a year on taxes alone.

Elsewhere, Judges have gutted the cases brougnt by Maryland,
Iowa, Arizona, the state of Washington and the City of San Francasco.
Mississippi's and Ari zona's attorneys general have had to fight their
own governors in court because they opposed the lawsuits.

"I mean, sure, we've got victories in Mississippi and florida,"
Mike Moore, at torney generalissimo of Mississippi and the
antitobacco alliance, was saying last week, "but time is running out."

Their cases were flimsy from the start and something extra was
always going to be needed to make sure the lawyers got their payola
and the state pols a feather in their beanie so they can run for higher
office. Hence they're whistling up Congress as errand boy. In fact, most
states sitting out until this looked likely. Forty are in now.

The laugh could be on them. The two that have collected so
far, Miississippi and Florida, may be the last that ever do. Mississippi's
lawyer is Dick Scruggs, brother inlaw of Senate Majority leader Trent
Lott. And one of the Flbritia lawyers is Mr. Rodham. Big tobacco may
not be so dumb after all.

Now that these these two have their share of the loot, the rest
may discover there's some stuff Congress won't eat.