Omnibus Appropriations Act, 2009

Floor Speech

OMNIBUS APPROPRIATIONS ACT, 2009 -- (Senate - March 10, 2009)

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AMENDMENT NO. 673

Mr. CORNYN. Madam President, I ask unanimous consent to set aside any pending amendment and call up Cornyn amendment No. 673 and ask for its immediate consideration.

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Mr. CORNYN. Madam President, I rise to offer an amendment 673 to the Omnibus appropriations bill. As a former State attorney general, I am very concerned that the current bill lets State attorneys general outsource their responsibilities on behalf of their citizens to enforce the Truth in Lending Act. This is a very important piece of legislation that was passed in 1968 to protect consumers in credit transactions by requiring clear disclosure of key terms of the lending agreement at all costs. As I said, this is an important piece of legislation. However, the current provision in the bill allows the attorney general, the elected representative of the people--the people's lawyer--to basically hire trial lawyers on a contingency fee arrangement. Thus, the litigation that might follow under this piece of legislation would benefit not just the citizens, not just the public, not just the taxpayers but trial lawyers too. I don't believe that should be the intent of Congress.

Specifically, this amendment clarifies that State attorneys general may not outsource these lawsuits to outside lawyers or expert witnesses on a contingency fee basis. As we all know, contingency fee means you get a piece of the pie if you win. This would not prohibit attorneys general from hiring lawyers on a more reasonable basis, such as a set fee or an hourly rate, but the new causes of action created by this bill could add up to significant money damages, and this money, as I indicated, should be paid to the people, not to private lawyers.

Both Democrats and Republicans have expressed some concerns about the enforcement of this Truth in Lending Act by State attorneys general. Senator Dodd, the distinguished Senator from Connecticut, said that ``giving such broad authority to State attorneys general would be a departure from the current regulatory regime,'' and he is right.

This amendment prevents the authority to enforce the Truth in Lending Act from being further disbursed by State attorneys general delegating it to trial lawyers on a contingency fee basis. Without this amendment, it is likely that plaintiffs' lawyers will develop class action lawsuits, then go to their State attorney general proposing to pursue these cases on a contingency fee basis, perhaps reaping millions of dollars in attorneys' fees awards.

My colleagues have expressed concerns the bill would increase the number of authorized enforcers from 1 to 51. I would submit that unless this amendment is adopted, we are effectively increasing the number of authorized enforcers of this legislation from 1 to 5,100 or more.

Hiring outside counsel on a contingency fee basis, unfortunately, as we have learned through hard experience, can lead to other problems, including the appearance of corruption or outright corruption. For example, my predecessor in office, the Texas attorney general, entered into contingency fee agreements with outside lawyers in the tobacco litigation, which was then being pursued across the country. These lawyers ended up making roughly $3 billion in attorneys fees through contingency fee provisions that my predecessor in office entered into. Unfortunately, my predecessor also falsified records in an attempt to funnel some of that money to a friend, and he paid the price. He went to the Federal penitentiary.

This is not just a problem in my State; this is a national problem as well. Last year, the Wall Street Journal reported and editorialized about the appearance of corruption in Mississippi, where the State attorney general had retained as many as 27 law firms as outside counsel to pursue at least 20 different State lawsuits over a 5-year period. In 2007 alone, the attorney general received almost $800,000 in political contributions from those same lawyers and law firms and, thus, the appearance of conflict of interest, if not an outright conflict, was created.

This kind of conflict of interest has no place in the attorney general's job, which is to protect the legal interests of the people of his or her State. Amendment No. 673 would ensure that State attorneys general either do the work themselves in enforcing this law or hire an outside lawyer at a reasonable, competitive hourly rate or flat rate; no windfall attorneys' fees for hitting the long ball over the fence.

When Federal agencies bring suits to enforce the Truth in Lending Act, they are barred from hiring outside counsel on a contingency fee basis. All I am suggesting is that this same rule should apply to the State attorneys general who are now authorized enforcers under the law. Particularly at this time in our Nation's economic history, it should hardly be one of Congress's priorities to increase the number of lawsuits. We cannot sue our way to recovery. Unless amendment 673 is adopted, the bill would give trial lawyers a share of the public's money and will disrupt the Federal credit regulatory regime and, as I indicated a moment ago, create dangerous incentives to corruption. I ask my colleagues to support amendment No. 673.

AMENDMENT NO. 674

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Mr. CORNYN. Madam President, my second and final amendment to this Omnibus appropriations bill would help protect workers' paychecks and increase transparency, something we all heard our new President speak about just a few short weeks ago--I believe about 50 days ago now--when he said he believed increased transparency would increase accountability and help restore the public's confidence in their Government. This amendment is offered in that vein.

The U.S. Supreme Court, in Communication Workers v. Beck, said workers could not be forced to pay dues for purposes other than collective bargaining. That means workers have the right to keep more of their money rather than support political action committees, lobbying and gifts, things they may not even agree with.

We know every dollar counts in this economy, and many workers object to scenes such as the one we saw last week in Miami. There, the AFL-CIO held a meeting at the Fontainebleau Resort, which describes itself as "the epicenter of style, fame, and glamour.'' Now, if workers don't want to support that kind of extravagance based on their union dues, they shouldn't have to. And, frankly, who can blame them?

The Bush administration issued an Executive order that required employers to post signs at the workplace that informed workers of these rights regarding union dues. These notices are similar to those that inform workers of their rights regarding family and medical leave, workplace safety, equal employment opportunity, and other rights they have under the law.

Now, this chart shows what the notice says. It says:

Under Federal law, employees cannot be required to join a union or maintain membership in a union in order to retain their jobs. Under certain conditions, the law permits a union and an employer to enter into a union security agreement requiring employees to pay uniform periodic dues and initiation fees. However, employees who are not union members can object to the use of their payments for certain purposes and can only be required to pay their share of union costs relating to collective bargaining, contract administration, and grievance adjustment.

It goes on to say:

If you do not want to pay that portion of dues or fees used to support activities not related to collective bargaining, contract administration, or grievance adjustment, you are entitled to an appropriate reduction in your payment.

Meaning your payment of your union dues.

If you believe that you have been required to pay dues or fees used in part to support activities not related to collective bargaining, contract administration, or grievance adjustment, you may be entitled to a refund and to appropriate reduction in future payments. For further information concerning your rights, you may wish to contact the National Labor Relations Board, either at one of its regional offices or at the following address.

The Supreme Court has said when a worker pays their dues, they cannot be forced to financially support things they don't agree with, whether it is extravagant spending at the Fontainebleau Resort or perhaps even a political speech where a union might use those dues to help finance a campaign against a political candidate or perhaps an incumbent.

President Obama, unfortunately, has signed an Executive order that, among other things, rescinds the requirement to inform workers of their rights regarding union dues. This Executive order, contrary to what we heard a few short weeks ago, actually reduces transparency in the workplace, and it places unnecessary limits on the information available to help workers make informed decisions about their union dues.

Amendment No. 674 would prohibit Federal funds from being used to implement that part of President Obama's Executive order related to this notice to workers. It would have no other effect on the Executive order, other than to reinstate this notice to workers that you don't have to join a union; and, No. 2, if you do not join a union, you cannot be forced to finance points of view or activities you disagree with, and you can assure that your money can only be used for legitimate collective bargaining contract administration and grievance adjustment.

I urge my colleagues to support amendment No. 674.

I yield the floor and suggest the absence of a quorum.

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