December 30, 2002

MORE ON THIMEROSAL: Mark Kleiman is pointing out a problem that Dr. Manhattan has also noted: the controversial amendment to the Homeland Security bill may not have been anonymous, since Dick Armey has admitted being behind it, but it is, ahem, screwed up. Here’s Kleiman’s email description, which is particularly clear, and which I think is right (email me if I’m wrong):

1. Frist offered a bill to get Eli Lilly off the hook on thimerosal in the Senate. No hearings were held.

2. That provision appeared in neither the House nor the Senate version of the Homeland Security bill as passed before the election, since it has nothing to do with homeland security.

3. After the election, a version was reported out by the conference committee, with lots of stuff, including the thimerosal language, that hadn’t been in either bill.

4. There’s no mystery about who put it in: Armey did. But Armey had no particular interest in the thimerosal stuff. The “mystery” is who asked him to put it in. Frist, the author, specifically says he didn’t. But no one will say who did. The natural suspect is Mitch Daniels; the early reports were that the pressure came from “the White House,” and Daniels is an ex-officer of Lilly and planning to go back to Indiana, where Lilly is based, to run for governor.

5. The Frist version had a necessary conforming amendment to the Internal Revenue Code. The Armey version, the one that passed, didn’t. As a result, the bill as passed blocks all lawsuits and directs the claims to VICP, but the VICP trust fund is still barred by law from paying any such claim.

6. All the thimerosal claims are time-barred by the terms of VICP. Neither the Frist version nor the Armey version deals with that.

So unless the thing gets undone, the families are out of luck. Not being a lawyer, I’m not sure why denying someone the right to press a damages claim isn’t the sort of “taking” that requires compensation.

Well, as for the last, the answer is that lots of things that ought to be considered “takings” that require compensation aren’t treated as such. (And don’t even get me started on “qualified immunity”). But this — unlike the bogus “anonymity” claims that have been raised earlier — seems like an actual issue, and one that deserves to be addressed.

And why wasn’t Bill Keller’s column on this, or Eleanor Clift’s, this clear and to the point? Were they so anxious to try to pin something on Frist that they missed the real story here? Maybe someone should just give Kleiman a bigshot oped slot.