Tort reformers resort to back-room deals and bureaucratic coups

Congress is an imperfect institution -- its members are pampered, partisan and subject to undue influence from lobbyists. But it is the only branch of government constitutionally empowered to make laws, and it should do so properly.
Conservatives are fond of complaining about the judicial branch of government "making law rather than interpreting law." Political careers have been built on that very theme. And while everyone has been worrying about judges usurping the power of the legislature, it seems that bureaucrats have been quietly at work writing laws of their own -- and they're starting to get away with it.
The American people should be outraged. The Founding Fathers would have been. And yet this latest governmental phenomenon has gotten scant attention.
In December, we editorialized against efforts by Senate Majority Leader Bill Frist to attach pharmaceutical tort reform to a must-pass defense spending bill. The effort traded on the nation's fear of a bird flu epidemic to create a new secret bureaucracy that would shield the government's health decisions from public scrutiny.
Exempt from FOI
Frist supported creation of the Biomedical Advanced Research and Development Agency within the Department of Health and Human Services. BARDA would have the authority to determine what medical equipment, drugs and vaccines would be shielded from civil lawsuits. It would be presided over by a presidential appointee and would be exempt from the Freedom of Information Act.
Even though the Senate voted against Frist's proposal, he and House Speaker Dennis Hastert took the extraordinary action of reinserting tort protection for drug companies and medical equipment providers into a compromise bill without concurrence of the Senate or House. Some independent members of Congress are mounting a challenge to the action of Frist and Hastert, as well they should
Now, however, the administration is taking even more dramatic action to shield vaccine and pharmaceutical makers from liability and scrutiny, bypassing even the legislature. New FDA regulations in drug labeling are being issued by the agency which are designed to supercede related state consumer protection laws and labeling requirements. And the FDA won't even say what the regulations are until they're are put into effect. No hearings, no debate, no legislative action.
This coup has gotten very little national attention yet. The National Conference of State Legislatures, the Consumers Union, and civil justice groups are speaking out.
Illinois state Sen. Steve Rauschenberger, president of the NCSL, which represents state lawmakers in Washington, D.C., describes the FDA action as "a thinly-veiled attempt to confer upon itself authority it does not have by statute and does not have by way of judicial ruling. & quot; It would pre-empt state prescription drug product liability laws despite Congress and the courts' refusal to grant them such power.
Some reform needed
We have editorialized against frivolous lawsuits and juries that return outrageous amounts in damages -- verdicts that reflect more emotion than common sense. We have never suggested that tort law is perfect.
But tort reform must be pursued though traditional and transparent legislative action. It should not be effected through back-room tactics by a Senate majority leader and House speaker. And reform certainly shouldn't be cooked up by political appointees and bureaucrats working behind closed doors in a federal agency.
It is ironic that most of the complaints made by politicians about activist judges are aimed at federal jurists, but those same politicians seem content to stand by while the administration and powerful legislators attack the independence of state courts. One has to ask why people who are ideologically inclined toward states rights are willing -- eager, even --to shift power to the federal government.
The most obvious answer is money. Few Washington lobbies have deeper pockets than the pharmaceutical industry. It bought protection against the federal government being able to negotiate quantity discounts for senior citizens when the new Medicare drug coverage plan was pushed through Congress in 2003. Now it appears to be buying protection from consumer lawsuits anyway that it can.