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Even in an era of hyper-partisanship, it should have been easy. Everyone on Capitol Hill, Republican and Democrat, understands that the U.S. needs emergency legislation designed to speed production of new vaccines aimed at combating future pandemics. Everyone knows drugmakers need a liability shield to protect against the lawsuits that will inevitably spring up when a vaccine is rushed to market. And nearly everyone wants Washington to help Americans who are injured by their shots.
But in Washington nothing is easy, especially when it involves a clash between two bitter enemies -- Hill Republicans and the trial lawyers. The GOP and pharma lobbyists charge that the lawyers and their allies are pulling out all the stops to prevent any erosion of their cherished right to sue at the drop of a hat. But the plaintiffs' attorneys see the Republicans pushing broad relief from lawsuits under the guise of public health. "It's cynical to claim that this is what's needed to deal with avian flu," says Senator Edward M. Kennedy (D-Mass.). "The Republican leadership is trying to do another favor for the drug companies."
Obscured by the overheated rhetoric, however, is a key issue: How much compensation should people damaged by these vaccines collect? Kennedy and the trial lawyers say they can support liability protections for drugmakers only if victims are promised full government indemnity. "We are not in any way trying to undermine the vaccine program," says Association of Trial Lawyers of America lobbyist Linda Lipsen. "In the event that individuals are injured [or] killed, there should be... compensation."
Full indemnity could be a trillion-dollar commitment, but that's completely impractical and unaffordable, Republicans say. During negotiations between Kennedy and Mike Enzi (R-Wyo.) on indemnity, Senate Majority Leader Bill Frist (R-Tenn.) summoned senators to his office to call off the talks. Indemnity will never fly, he said.Vague Compensation
Instead, Industry and Frist are backing an effort led by Senators Richard Burr (R-N.C.) and Judd Gregg (R-N.H.). They would limit liability to vaccines designated as essential to fighting pandemic flu or other deadly new diseases and would direct the Secretary of Health & Human Services to create a compensation program, with details and funding to be determined later. "We just don't have enough information to set one up now," argues a GOP staffer.
The pharmaceutical industry, not surprisingly, is firmly behind the GOP. Trial lawyers, advocates for vaccine victims, and others counter that a vague plan for a future compensation program is tantamount to none at all. Somewhere in the middle are public health experts. They want Congress to spur vaccine production while assuring the public it will have a safety net.
When all the smoke clears, that's likely to happen. Supporters plan to attach the Burr liability provision to a spending bill that just enough Democrats -- especially those like Senator Hillary Rodham Clinton (D-N.Y.), who have already backed some form of liability protection -- will be loath to oppose. It won't be pretty, it won't be easy, and it won't be truly bipartisan. But "it's all going to work out, despite the big bad trial lawyers," says a pro-industry lobbyist. Union leaders vowed to shut the fund-raising spigots for 15 House Democrats who broke ranks with their party in July to vote for the Central America Free Trade Agreement. But new Federal Election Commission reports indicate that business has more than compensated for labor's closed wallets.
A BusinessWeek analysis of political action committee receipts for the first nine months of 2005 finds that unions provided an average of 16.1% of the PAC money raised by CAFTA Dems -- down from 22.1% in the 2004 election. But business donations surged to 76.7% of the CAFTA 15's PAC money, from 66.3% that these pro-business Dems received in 2003-04. Corporate interests have already pumped more than $100,000 into the coffers of 10 of the 15 Democrats.
Business efforts included a September fund-raiser hosted by leaders of the Business Roundtable, the National Association of Manufacturers, and the Electronic Industries Alliance. Bernadette Budde, senior vice-president of Business Industry PAC, says executives also will hold local events to make sure that Democrats "do not suffer for the [pro-trade] positions they have taken." First up: helping friendly Democrats such as Representatives Henry Cuellar of Texas and Gregory Meeks of New York, who face primary races against labor-backed foes.