The Right Wing's Drive for 'Tort Reform'
Few, if any, of the ultra-right's obsessions have won such substantial backing from mainstream corporate America as tort reform. Corporate boards may have little stake in school vouchers or abortion, but every company wants to limit its liability. According to Leonard Salle, co-author of the Commonweal Institute's report "The Attack on Trial Lawyers and Tort Law," the total spent on lobbying, advertising, think tanks, endowing chairs at law schools and electing reform-friendly judges and legislators probably exceeds $1 billion over a thirty-year period. But despite two successful waves of tort reform in the states in the mid-1970s and mid-1980s, in Washington antilawsuit bills died in committee. As an issue, "tort reform" had a chilly, academic ring, like lobbying for the metric system.
The solution was born in south Texas in 1991, when the Rio Grande Valley Chamber of Commerce, infuriated by a $2.5 million verdict to two Mexican-Americans illegally fired from a sugar mill, launched Citizens Against Lawsuit Abuse, which plastered billboards across the valley with slogans like "Lawsuit Abuse: Guess Who Picks Up the Tab? You Do," according to a joint study by the Center for Justice and Democracy and Public Citizen. The cigarette companies were already deeply involved in the issue, and Philip Morris provided generous start-up funding for Citizens Against Lawsuit Abuse. Thanks in large part to tobacco largesse, there were CALA groups all over the country by the mid-1990s. In 1993 and 1994, while a politically green George W. Bush received instruction from Mike Toomey, soon-to-be lobbyist for Texans for Lawsuit Reform, Karl Rove, a consultant to Philip Morris, was convincing Bush to exploit the lawsuit-abuse issue in his first gubernatorial campaign, according to the book Bush's Brain, by James Moore and Wayne Slater. Tort reform proved a powerful weapon. Although of little interest to voters, the issue, according to Rove himself, was a magnet for corporate donations--among numerous other benefits.
"By publicizing all the horrors of the tort system, they get a lot done," explains Pamela Gilbert, a lobbyist for plaintiff's lawyers. "You pass legislation that curbs their liability--that's the ultimate prize. But short of that, you affect juries, you affect elected officials, you affect judges, you affect the entire discourse of the United States." Best of all, by doing harm to plaintiff's lawyers, Gilbert notes, tort reform would help defund the Democratic Party, a key piece of strategy for the Rove Republicans in the new millennium.
With a uniform message and national structure, the "lawsuit abuse" campaign grew exponentially in the states in the 1990s. Trial lawyers and consumer groups fought back with hastily erected alliances. The tort reformers effectively used distorted anecdotes about minor injuries bringing absurd verdicts. The trial lawyers' counterpunch to "lawsuit abuse" was "tort deform," which sounded like a bad joke from a faculty cocktail party.
Now the message has become so familiar it has jumped the fence from think tanks to John Stossel, drive-time radio and David Letterman's Top Ten, coming perilously close to turning Americans against the civil jury, perhaps our most radically democratic institution. Its success can be measured by sitting in a Texas courthouse and hearing potential jurors recite, one after another, that there are just too many frivolous lawsuits.
There are, of course, plenty of things wrong with the civil justice system. It has high "transaction" costs, meaning money that should go to victims is eaten up by lawyers and others, but worst of all, it is haphazard. In 1991 a Harvard University study of medical malpractice in New York State found an unexpectedly high rate of medical accidents. However, few of even the most serious "mishaps" resulted in lawsuits, and there was no correlation between severity and litigation.
Carl Bogus, a law professor at Roger Williams University, argues that what plaintiff's lawyers do best is regulate, a role that has become more and more vital as government's watchdog function has shrunk under conservative attack. Bogus notes that while asbestos caused 170,000 deaths from lung cancer, the Environmental Protection Agency was never able to ban it. Lawsuits forced it from the market.
However, if this vital aspect of the civil justice system is to be rescued, someone will have to make the case for it. Despite Bush's persistent attacks and the presence of trial lawyer Edwards on the ticket, the Democrats apparently consider tort issues unmentionable. Part of the problem, says Gilbert, the trial-lawyer lobbyist, is that defending the system is inherently problematic. "If someone's been a victim of medical malpractice, to like say, Oh, but gee, aren't you lucky because you get to bring a medical malpractice lawsuit! It's like, Well thank you very much, I'd much rather that it never happened at all," says Gilbert.