CONGRESSIONAL LIABILITY

PRODUCT LIABILITY REFORM is important enough to Congress that there were three overwhelming votes in favor of debating it in the Senate in September. Yet there was no debate. But that should not surprise anyone who observes Congress on a regular basis.

The majority leader, Sen. Bob Dole, R-Kan., told his colleagues, If I had my druthers we would pass the bill. It never came to a vote. Having once stated his preference, Sen. Dole then suggested removing product liability law reform from the calendar so the Senate could get on with other legislation on its must list before adjournment. An old hand in the House suggested that the raison d'etre of the Senate is to make the House look good. But in reality both houses have rules that stymie floor consideration of legislation considered important by the committees of jurisdiction.The Senate tried to streamline its procedures this summer when it allowed televised debate for the first time. Thus, once cloture was invoked - that strange Senate procedure under which legislation can be talked to death unless two-thirds of the senators present and voting choose to cut off debate - senators would be limited to 30 hours of discussion over whether they should really proceed to the measure before them.

Before this reform, there were 100 hours of debate permitted after cloture. But even with the streamlined 30-hour rule, if legislation can be bottled up in committee long enough with demands for more information and more data, it can be defeated on the floor of the Senate strictly by time.

So with votes of 96-0, 97-1 and 84-13, product liability could not be allowed to consume the time it would take to debate the concept and planned amendments as controversial as: whether there should be caps on liability for pain and suffering; whether all liability should be fault-based; and whether the federal government should go beyond the admittedly interstate nature of products sold countrywide and create federal tort law applicable to doctors, professionals, municipalities, day-care centers and others affected by escalating claims and limited or no insurance.

End result: there will be no product liability reform act this year.

The House has really not been much better in how it has handled changes to banking law.

The House Banking Committee voted out two bills in tandem in June 1985. One would have closed the loophole in banking law that allows the creation of non-bank banks that have most of the powers of banks . . . but don't suffer the restrictions on branching across state lines or affiliating with commercial enterprises imposed on banks under federal law.

The second bill was a five-year trigger to phase out restrictions on interstate banking.

The Rules Committee, the traffic cop for the House that determines the rules of floor debate, has refused for 16 months to give either bill permission to go to the floor. But House Rules Committee Chairman Claude Pepper, D-Fla., was determined not to move on interstate branching. As one might imagine, interstate banking is disliked by Florida banks, who do not want competition from New York money center banks. Once he tied up one bill, it was easy for all the commercial, securities, insurance and banking firms, which like their non-bank banks, to keep that legislation off the agenda as well.

All these pieces of legislation - product liability law reform, closing the non-bank bank loophole, interstate bank branching - are controversial. And there is no guarantee that having passed one house of Congress they would have surfaced in the other and been signed by President Reagan. It is no secret that Donald Regan, the president's chief of staff, does not want the non-bank bank loophole closed.

A legislature that talks everything to death and refuses to stand up and be counted is hardly the centerpiece of a democracy. But in an election year, controversy is the farthest place incumbents want to be around.

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