July 25, 2002
Democrats' Ties To Trial Lawyers Deserve Debate
Besides taxes and social spending, if there's a key issue separating the political parties - and therefore, a fit subject for campaign debate - it's legal reform. But it's a muted topic, at best.
Democrats often accuse Republicans of being the "party of special interests" - drug and oil companies and big business in general - but the Democrats rarely get tagged as "the party of trial lawyers," which they are.
According to the Center for Responsive Politics, the Association of American Trial Lawyers has distributed $1.8 million to candidates so far during the 2002 cycle - 87 percent to Democrats.
All told, lawyers and law firms have contributed $44 million, 72 percent to Democrats. During the 2000 election cycle, they handed out $112 million, 69 percent to Democrats.
By comparison, unions in 2000 gave $39 million, overwhelmingly to Democrats, while oil, tobacco and pharmaceutical companies contributed a total of $62 million, 75 percent of which went to Republicans.
Finance, insurance and communications companies handed out a total of $434 million, but the electronics and communications industries gave 54 percent of their money to Democrats, while finance firms gave 59 percent to Republicans.
Representing their constituencies, Democrats and Republicans are constantly at odds over measures to expand or restrict opportunities for lawyers to sue and collect fees, but the media rarely give the conflict the attention it deserves.
Trial lawyers currently bask in the popular image projected by Erin Brockovich, intrepid defender of innocent people exploited by rapacious corporations. It's partly accurate.
But tort reformers paint an equally valid picture: of predatory ambulance-chasers who overcharge clients, intimidate corporations into settlements, drive doctors out of practice by inflating malpractice insurance rates and use their huge fees from tobacco cases to build a political empire.
The clash between business, defended mainly by Republicans, and trial lawyers defended by Democrats is an ongoing drama little covered by the media.
It is at the bottom of Congress' likely inability to pass a patients' rights bill this year. Republicans want limits placed on damages when patients and lawyers sue HMOs and insurance companies for denial of coverage, while Democrats oppose them.
A similar dynamic is holding up terrorism reinsurance legislation, designed to protect insurance companies from catastrophic losses in future Sept. 11-sized attacks.
The GOP-dominated House passed a measure that would allow plaintiffs to sue for all of their actual economic losses, but would limit noneconomic damages and bar punitive damages and would cap lawyers' fees when cases were settled out of court.
The Senate, after a seven-month delay, passed a bill with none of those limits. Without a single defection, Democrats opposed an amendment by Sen. Mitch McConnell (R-Ky.) that would have barred punitive damages except when a defendant was found guilty of a crime.
Terrorism insurance is necessary for construction projects to go forward, so a bill probably will pass this year, but the differences are considerable.
President Bush indicated his attitude last week in Alabama, when he said the legislation was necessary to create jobs - but not jobs for trial lawyers.
"This legislation," he said, "must keep in mind the workers of America and not open up our government and/or employers to unnecessary and frivolous and junk lawsuits."
The administration and business groups also think that amendments attached to the Senate version of corporate reform legislation passed last week will open businesses and accounting firms to onerous litigation, but political pressure may force Republicans to accept it.
During Senate debate, McConnell offered an amendment requiring lawyers in personal injury cases to fully disclose their fees to clients, but it was roundly defeated.
If it were up to McConnell, tort reform would be a major national GOP rallying cry. "Second only to the sorry state of public education in America," he told me, "litigation is the most important problem facing the country. It drives the cost of everything up.
"In most cases, it has little to do with civil justice, but more to do with extortion. And it's an example of how an interest group can really be powerful and really needs to be taken on."
As McConnell noted, Bush successfully pushed legal reform during his governorship in Texas and advocated it during the 2000 campaign, "though he hasn't mentioned it lately."
"It's going to take some president to think this is important enough to trot it out repeatedly from the bully pulpit. I haven't lost hope that this president may choose to do it."
Bush's Council of Economic Advisers did publish a paper in April estimating that the U.S. tort system, costing $180 billion, is the most expensive in the world as a percentage of gross domestic product, equivalent to a 3 percent tax on wages.
The administration also has encouraged House GOP efforts to limit medical malpractice awards, push large-scale, class-action suits into federal courts and cap lawyers' fees.
But this hardly constitutes a full-force effort at legal reform. What probably would motivate Bush to make it a front-burner issue is for the Democrats to nominate Sen. John Edwards (N.C.) to run against him. Edwards was a trial lawyer and leads all other presidential contenders in trial bar contributions.
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