The thimerosal rider: a legislative “ooops!”

Dr. Manhattan at Blissful Knowledge (thanks to Instapundit for the pointer) stands to the “pro” side of the thimerosal-rider debate as Dwight Meredith of P.L.A. stands to the “anti” side: a knowledgeable, intelligent, and calm advocate, and a good writer. Now that they are aware of each other, the rest of us can sit back and wait to be enlightened.

However, Dr. Manhattan’s latest post seems to me to make the strongest case yet against the rider, and more to the point, against the process by which it was tacked on, without hearings, as a “midnight amendment” to the Homeland Security bill. He cites an article in the authoritative Tax Notes which points out that the terms by which the Vaccine Injury Compensation Trust was established forbid its use to compensate thimerosal victims. [That’s aside from the problem that the claims would be time-barred by another provision of the same law.]

Dr. Manhattan’s comment: “ooops!” I imagine that the families might use somewhat stronger language. This is exactly the reason that complicated legislation shouldn’t be pushed through without hearings. And these two mistakes suggest that Dr. Frist, the sponsor of the original amendment, Dick Armey, who has sorta-kinda acknowledged that he was responsible for pasting it into the Homeland Security bill, and the still-anonymous-but-widely-believed-to-be-Mitch-Daniels White House gnome who passed the word to Armey all failed to perform due diligence. (Unless, that is, it was their intention to deprive the families of the right to sue and “accidentally” leave them with no recourse whatever.) If you’re going to short-cut the process, you ought to be certain you’ve got the substance right.

There’s nothing that keeps the new Congress from fixing these problems. But the Lilly lobbyists, and their friends on the Hill, including the new Majority Leader, now have the huge advantage of the status quo. And Frist may not regard himself as being bound by the promises to undo the damage that Trent Lott made (and immediately started to back away from) to hold on to the Republican moderate votes he needed to pass the bill last session. The families and their friends are now in the position of begging the other side for whatever concessions it might deign to offer. Not a pretty picture.

As to Dr. Manhattan’s suggestion that the Congress might repeal the amendment entirely if a mercury-autism link were shown, thus exposing Eli Lilly to bankruptcy, what planet is that prediction about? Not the one I live on. I can recite the arguments now: (1) It wasn’t Lilly’s fault; (2) We can’t afford to lose a major pharmaceutical company; (3) We need the smallpox vaccine, and no one will produce it unless VICP is known to be airtight.

For all we know, there’s a “smoking gun” memo somewhere in Lilly’s files, where a company researcher says “We should check whether the mercury burden in all these new vaccines might create a risk of autism” and his boss writes back “Forget it.” If such a memo were to come out, the pressure to throw Lilly to the wolves might become overwhelming. But no Congressional committee is going to find that memo. Only the greedy tort lawyers will, and they’re now out of this business by Congressional fiat.

The final outcome of the tobacco cases was disgusting, and I’ve said so in print. But let’s not forget that we now know, rather than merely suspecting, that the companies were consciously creating and maintaining nicotine addiction, only because the tort lawyers finally managed to beat the documents out of them. Ditto with the Catholic Church and child sexual abuse: all the key documents came out of civil lawsuits, and it was only then that the public prosecutors began to come in with criminal charges.

Litigation is a nasty process, which is why I tend to prefer regulation and no-fault compensation of victims as means to dealing with risky products and services. But as long as money talks as loudly as it now does on Capitol Hill, litigation will remain the most effective route to uncovering and punishing some kinds of corporate malfeasance.

[Previous thimerosal post here.]

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: