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No omnibus, but sneakiness looms as Congress leaves

Senate Majority Leader Harry Reid (D-NV) has pulled the $1.1 trillion, 1,924-page omnibus spending bill after Republicans withdrew their support because of the now politically noxious earmarks. But we think it was Hans von Spakovsky's report that sealed the legislation's fate. Thursday afternoon, the Heritage Foundation's legal maven posted this at National Review Online, "In the Omnibus Bill, a Treat for the Litigation Industry":

Only God and Harry Reid know all of the goodies and unpleasant surprises tucked into the 2,000-page omnibus spending bill being crammed through Congress, but there's at least one gift for community organizers and ambulance-chasing tort lawyers: pages 199-200 of the bill, which contain funding for the Legal Services Corporation.

For years, liberals used the semi-government corporation to pursue lawsuits advancing their political and social causes, until a 1996 reform put a stop to most of the abuses. Lawyers funded by the LSC were prohibited from pursuing class-action lawsuits; engaging in political activities; challenging welfare reform and abortion restrictions; or representing illegal aliens.

However, as the "Explanation" accompanying the spending bill explains at page S9399 of the Congressional Record, Title V of the omnibus lifts the ban on class-action lawsuits and will "permit the use of funds" to file such actions.

It was the final straw!

Even without the omnibus, there's plenty of opportunity for legislative mischief as Congress winds up within the next week. There's a continuing resolution to fund the government, which one assumes will be clean, but maybe not. Sen. Reid this morning stressed his desire to move on nominations, again citing Deputy Attorney General nominee James Cole as a priority. Many judicial nominations have also been approved by the Senate Judiciary Committee and could receive floor action, including controversial candidates like Goodwin Liu, Edward Chen, Jack McConnell and Louis Butler Jr. (Robert Chatigny, nominated to the Second Circuit, never did get a committee vote.) The closing hours of a session often see the approval of a long slate of nominees.

Congress' departure is no guarantee of calm on the civil justice front, either. With Republicans in control of the House, the plaintiffs' bar is expected to turn to the Executive Branch to achieve its goals. Tax breaks for trial lawyers? As The Washington Times reported this week in a Page One story, "Changes on Hill bode ill for trial lawyers":

Tiger Joyce, president of the Washington-based American Tort Reform Association, said the trial lawyers group still has support from congressional Democrats who survived the midterm elections, but he thinks industry lobbyists will shift their "liability expansion" efforts toward "friends throughout the executive branch."

Mr. Joyce noted that the group has started a campaign through the Treasury Department to get a tax break that will allow trial lawyers to deduct costs advanced to clients immediately. Repeated attempts to persuade Congress to enact the tax break, valued at an estimated $1.6 billion over 10 years, have failed.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.