AS IT NOW stands, the Senate version of the Justice Department's appropriation would restrict the department's authority to file suit against the tobacco companies. Unless the matter is resolved in last-minute negotiations, an amendment to fix this problem will be put forward on the Senate floor by Sen. Bob Graham (D-Fla.) when the bill is taken up. Whether by amendment or negotiation, the current restriction has to go.

The department contends that the tobacco industry has engaged in intentional wrongdoing over the past 50 years in order to cover up the addictive qualities of its product. Industry misconduct, the argument goes, has resulted in huge federal health care bills. Normally, when a company fraudulently exacts such a toll on the taxpayer, the Justice Department seeks to recover some of that money. And that is what the department plans. It has asked Congress for $20 million for a planned suit. But the Senate appropriations subcommittee chairman, Judd Gregg (R-N.H.), seems to have other ideas. He inserted language into a committee report specifying that no money may be used for such a suit. The language would at least complicate the Justice Department's efforts, and it could be read to forbid a federal suit altogether.

The decision on whom to sue is a quintessentially executive branch power in which Congress has no legitimate role. If senators want to protect the tobacco industry's ill-gotten gains, they are free to change the laws under which Janet Reno is contemplating action. But it is the attorney general's job to decide whose violations of the law merit federal action. Moreover, when the attorney general plans a civil action against companies she claims have bilked the taxpayers of billions of dollars, it is not the place of any senator to seek to prevent the recovery of money that, in the judgment of the executive branch, lawfully belongs to the American people.

The amendment would not give the department the $20 million it has requested, but it would clarify that other money can be used for the suit. There can be no misunderstanding a vote to reject such a change. It would be an amnesty for decades of misconduct and a retroactive taxpayer subsidy for that misconduct as well.