ON JUNE 16, the Senate considered a proposal to cap at $ 4,000 per hour the amount plaintiff’s attorneys can charge in tobacco litigation. It was a revealing moment: What would anti-tobacco Democrats do? By voting for the cap, they could increase the tobacco bill’s chances of passage and avoid the embarrassment of opposing a reasonable limit on lawyers’ fees. But they would also enrage staunch Democratic allies, the trial lawyers, who were chomping at the bit to earn hourly fees in the tens of thousands of dollars for tobacco work.
In the end, 40 of the 44 Democratic senators opposed the cap on lawyers’ fees (though the amendment passed; the bill was later defeated). In this, they were true to form. Democrats have consistently refused to cross the trial lawyers in votes this year, on tobacco, health care, and product liability. In fact, never before have the Democrats crafted so much of their agenda around issues advantageous to the trial bar.
There’s a simple explanation: Trial lawyers are one of the Democratic party’s most reliable sources of campaign money. In 1995-96, the Association of Trial Lawyers of America (ATLA), the trial lawyers’ primary advocacy group, doled out $ 2.3 million in federal campaign contributions, making it America’s fourth most generous political action committee. Eighty-nine percent of its money went to Democrats. But ATLA’s spending doesn’t tell the whole story. An analysis by the Virginia-based State Affairs Company found that in 1995-96 the combined federal contributions of individual trial lawyers totaled more than $ 24 million, the vast majority of it given to Democrats. For comparison, tobacco companies gave only $ 10 million during the same period, 80 percent of it to Republicans, while the computer industry gave $ 7 million, 54 percent to Republicans.
The Democrats’ coziness with the trial lawyers has long been a target for the GOP, though less so than their ties to labor unions. That’s beginning to change. A senior Republican strategist calls the trial lawyers “the Democrats’ NRA,” adding, “They’re an absolutist group, and whenever you’re against such a group, you have a lot of cards you can play.” GOP pollster Frank Luntz says it is “almost impossible to go too far when it comes to demonizing trial lawyers.”
In Congress, the trial lawyers’ influence has eroded in the last four years. Sensing this, Republicans have moved to reform securities litigation and punitive-damage awards. Even more threatening to the trial lawyers is a proposal by Sen. Mitch McConnell and Rep. Dick Armey to reform auto insurance, which would limit “pain and suffering” damages — a cash cow for plaintiff’s attorneys. Victor Schwartz, a tort lawyer at Crowell & Moring in Washington who supports the reform, believes the trial lawyers still have enough clout to stave it off. But if it did become law, says Schwartz, it would plant a “dagger in the heart of the trial bar.”
The GOP seized another opportunity when Democrats introduced a health-care bill with a feature that would allow patients to sue their health-care providers. This proposal — so novel that not even a recent Clinton administration health-care commission had recommended it — would be a gold mine for trial lawyers. Newt Gingrich sounded the alarm: The trial lawyers were “seeking to enrich themselves at the expense of everybody else in this country.” In the same vein, the GOP mocks the Democrats’ “patients’ bill of rights” as the “lawyers’ right to bill.”
In addition to engaging Democrats over legislation, Republicans are looking to make trial lawyers an issue in this year’s elections. Steve Law of the Senate GOP campaign committee predicts Republicans will be running ads this fall using the Democratic opposition to the $ 4,000-per-hour cap to showcase the party’s dependence on trial lawyers. One state where trial lawyers have become a full-fledged campaign issue in North Carolina. Republican senator Lauch Faircloth has been berating his opponent, John Edwards, for making millions as a personal-injury attorney, calling him a “bounty hunter” and a “fat cat” trial lawyer. One of Faircloth’s ads asks, “Who’s paying for John Edwards’s ads? You are.”
If Edwards is elected, he will be a key player for the trial lawyers in the next fight over product-liability reform. Already in 1996, the trial lawyers were instrumental in persuading President Clinton to veto a sweeping product-liability overhaul. But the reformers were encouraged to think they could get more limited legislation through Congress this year when the White House endorsed the bill — sponsored by senators Slade Gorton, a Republican, and Jay Rockefeller, a Democrat.
In June, passage of the overhaul looked likely — until the trial lawyers unleashed a lobbying effort that Rockefeller said privately was more aggressive than any he’d ever seen them mount. It was also pretty crafty. The ATLA leadership, along with Ralph Nader, persuaded Democratic senators that the way to defeat the product-liability bill was to change the subject: that is, to insist on offering amendments. As expected, Trent Lott, the Senate majority leader, balked at this. Trial lawyers subsequently ginned up so much pressure on Democrats that when a cloture vote was held, even Rockefeller, the bill’s sponsor, voted against ending debate, and the bill died.
Campaign contributions are not the only reason the trial lawyers are so effective at protecting their interests. Schwartz notes that lobbying comes easily to people who spend their careers advocating before judges and juries. Plaintiff’s attorneys are skilled at public relations and hyperbole. They derided the product-liability bill as the “Gun Dealers Protection Act,” and Schwartz says he’s seen them repeatedly use severely injured people to influence members’ votes. In addition, they focus narrowly on their own special concerns. Perhaps most valuable of all, one of Washington’s most successful lobbyists, Tommy Boggs, is on their side.
Tellingly, a top Boggs deputy, Roger Ballentine, took a senior post in the White House office of legislative affairs earlier this year. Even if the trial lawyers’ power has slipped in recent years, they are far from cowed. Given their strength, one senior GOP official argues for following the strategy used by pro-lifers: Forsake big goals and instead spotlight indefensible practices. The legislative battle that exposed the unwillingness of the trial lawyers and their Democratic protectors to contemplate capping legal fees at $ 4,000 an hour accomplished just that. Republicans, in other words, could do worse than continue to press for common-sense reforms that the trial lawyers and their Democratic friends will look mighty silly opposing.
Matthew Rees is a staff writer for THE WEEKLY STANDARD.
