A new report says Senate Majority Leader and likely presidential contender Bill Frist slipped into a defense-appropriation bill–without knowledge of a bi-partisan committee that had already allotted all crucial military spending–a provision protecting drug companies from lawsuits in the final hours before Congress finished its business and broke for Christmas last December.
The provision, called the Public Readiness and Emergency Preparedness Act, provides limited immunity for manufacturers or healthcare providers responding to a declared public-health emergency like avian flu.
Frist, R-Tenn., a medical doctor, has long advocated giving aid and protection to vaccine makers as a way to prepare for pandemic flu. He says one reason vaccine manufacturing has declined in recent years is fear of lawsuits and has stressed the need for “sensible liability protection” for manufacturers of life-saving emergency medicines.
But according Thursday’s Tennessean, Senate colleagues on both sides of the aisle blasted Frist for going around the long-standing practice of bipartisan House and Senate conference committees working out compromises on legislation, calling it a power grab that threatened democratic processes and a payback to a pharmaceutical industry that contributed $17 million to federal candidates in the 2004 elections.
Keith Kennedy, who works for Sen. Thad Cochran, R-Miss., called the move “a true travesty of the process.”
As Congress scrambled to finish its business on Dec. 18, according to the article, a conference committee of 38 senators and House members met several times to work out differences on the 2006 Defense Department appropriations bill.
Conference members reportedly signed off on the bill, which did not include the vaccine liability language.
After the conference committee broke up, a meeting was called in the office of House Speaker Dennis Hastert, R-Ill., attended by Frist, Sen. Ted Stevens, R-Alaska, and House Majority Whip Roy Blunt, R-Mo., where the language was put into the document.
The final bill was filed in the House just before midnight and passed at about 5 a.m. by a vote of 308-102. The Senate unanimously approved the bill, viewed as must-pass legislation because it dealt with defense, on Dec. 21, despite criticism from Senate Democrats about the way the vaccine language was added. President Bush signed it into law Dec. 30.
In an interview in January, Frist disputed claims that the vaccine language was inserted after conference members had signed off on the bill.
“To my knowledge, that is incorrect,” he said. “It was my understanding, you’d have to sort of confirm, that the vaccine liability which had been signed off by leaders of the conference, signed off by the leadership in the United States Senate, signed off by the leadership of the House, it was my understanding throughout that that was part of that conference report.”
Asked about contradicting reports that the language was added at Frist and Hastert’s initiative after the conference committee concluded its work, a Frist spokeswoman said, “Bill Frist has fought hard to protect the people of Tennessee and the people of the United States from a bioterror emergency, and that’s what he did throughout this process.”
While adding to a compromise bill worked out by bipartisan House-Senate conference committees is highly unusual, it is not thought to violate congressional rules. Some Senate and House Democrats have proposed banning the practice, however, as part of broader ethics reforms in the wake of recent lobbying scandals.
Frist is one of several politicians who pledged to return money donated by lobbyist Jack Abramoff, who in January pleaded guilty to fraud, tax evasion and attempting to bribe public officials in a plea bargain, by which he agreed to cooperate with an investigation into public corruption.
According to the Center for Responsive Politics, a non-partisan, non-profit group that tracks money in politics, Frist has received more than $270,000 in campaign donations from the pharmaceutical and health products industry since 1989.
The Public Readiness and Emergency Preparedness Act inserted into the defense bill would allow vaccine providers to be sued only if they act with “willful misconduct” that causes serious injury or death.
That is a higher standard than what is required in most civil cases, such as thousands of lawsuits that were filed against pharmaceutical giant Merck & Co. over its drug Vioxx, which has been linked to health defects and deaths. Trial lawyers say it could make it nearly impossible to force people harmed by a vaccine to force drug makers to pay for their injuries.
It also grants broad discretionary powers to the secretary of Health and Human Services, a post now held by former Utah Gov. Mike Leavitt, a former shareholder in a number of pharmaceutical companies. Leavitt divested his stocks before joining Bush’s cabinet in 2004, according to an editorial in the Salt Lake City Weekly, but never disclosed the value of his investments or discussed publicly the issue of any partiality he might have toward the pharmaceutical industry.
Frist plans to leave the Senate when his second term expires in January 2007, when he plans to return to Tennessee and decide whether to seek the Republican nomination for president in 2008.
Among the waters he has tested are those with the religious right. Last April he participated in a program called “Justice Sunday,” that portrayed Democratic senators blocking the president’s judicial nominees as “against people of faith.”
Frist also took a leading role in Terry Schiavo case, a rallying point for the pro-life movement, by calling for further examination of a brain-damaged Florida woman during the last days of a feud among her family members over treatment.
That move backfired after her death, when an autopsy found brain damage so severe that Schiavo never would have recovered. Asked recently if he had any regrets, Frist said the lesson he learned is that the American people don’t want government involved in end-of-life decisions.
Frist also suffered image problems last year when the Securities and Exchange Commission and a federal prosecutor investigated whether he relied on inside information before selling stock in HCA, Inc., a hospital company founded and run by his family.
Bob Allen is managing editor of EthicsDaily.com.