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September 20, 2004

Nixon went to China, but Kerry-Edwards didn't go to Madison County

By Ted Frank

I'd like to thank Dr. Chusid for taking the time to join us. There's a certain entertaining irony that in the doctor-versus-lawyer policy battle, a doctor is taking the side of the party that has thrown its lot with the lawyers, while an attorney is taking the side of the party selling itself as pro-doctor.

Who is better on medical malpractice reform, Bush or Kerry? Dr. Chusid almost seems ready to concede this issue by arguing, at least as a fallback position, that it's issues of health insurance, government funding of medical research, and Medicare, rather than tort reform, that should lead doctors to support the Democratic ticket. Of course, someone can choose to prefer one candidate over the other despite one candidate's failings on a particular issue or set of issues. (My support of Bush is in spite of the fact that on issues of gay rights, he's substantially to the right of Kerry in rhetoric and slightly to the right in position.) But it would be beyond the scope of my mandate to expand this debate to include tax cuts, free trade, and the Bush FDA's actions to protect pharmaceutical companies from unfair products liability litigation, all of which benefit doctors and health care directly or indirectly. I therefore restrict my remarks to three premises, each of which Dr. Chusid challenges: (1) Kerry-Edwards are not credible tort reformers; (2) the proposed Bush-Cheney medical malpractice reforms are better public policy than the proposed Kerry-Edwards medical malpractice reforms; and (3) medical malpractice reform is a significant issue.

Dr. Chusid's opening essay addresses all three of these points (and I hope to have the time to address all of the relevant positions over the course of the week), but I'd like to start with the first of them, since it's the idea expressed in Dr. Chusid's essay title and concluding paragraph: the tort reform efforts of Kerry-Edwards shouldn't be judged because they're Democrats or lawyers, but on their record. Here I have to agree. But it's the record of Kerry and Edwards on tort reform that demonstrates that they are the inferior candidates on this issue.

"Only Nixon could go to China", but the analogy only stretches so far. Reagan embraced disarmament, but he also implemented substantial deregulation, as his record indicated he would. Clinton passed welfare reform (over Sen. Kerry's opposition (see Mickey Kaus, Jan. 28), but he was also behind a notoriously disastrous legislative health care effort. Bush has become a Wilsonian nation-builder, but kept his promise to reduce taxes.

In his 1994 run for governor, one of Bush's four planks of his campaign platform was tort reform, and he followed through with substantial tort reform measures passing in the Texas legislature in his first term. In 1999, Bush made Texas the first state to enact limited liability for good-faith efforts to address Y2K issues. At the same time, Kerry was unsuccessfully pushing language in a bill that would have substantially expanded Y2K litigation before criticism from Democrats sent the amendment to defeat. "'The Kerry amendment is a lightning rod for additional frivolous lawsuits,' [Sen. Ron] Wyden [(D-OR)] charged. 'Some of the language is so vague it's going to ignite a litigation derby.'" The Bush administration also passed a Good Samaritan law protecting from legal liability voluntary health providers who provide medical care through non-profit organizations. The Perryman Group found that the 1995 reforms benefited the average Texas household $1,078/year. While the new filibuster-friendly rules of the Senate have allowed a Democratic minority to frustrate many bipartisan tort reform efforts, the Bush FTC and FDA have made notable steps, and it's plain that tort reform, including medical malpractice reform, is a central (and popular) part of the Bush domestic platform.

On the other hand, Kerry has given slight lip service to the need to free the Democratic Party from being the political wing of the trial lawyers' lobby, but there's little to demonstrate it beyond the paragraph in the campaign book. In drastic contrast, Bill Clinton in the summer of 1992 showed his willingness to buck an important constituency. In the wake of the LA riots, a minor rap star had been quoted by the Washington Post as saying "If black people kill black people every day, why not have a week and kill white people?" Minutes after Jesse Jackson gave a speech praising the singer, Clinton spoke to the same Rainbow Coalition audience and noted that Sister Souljah's remarks were indistinguishable from the racism of David Duke. The occasion was so memorable that it gave rise to the term Sister Souljah moment. Clinton went on to lecture unions about the need for free trade, and then followed up by getting NAFTA through over Democratic opposition. Can anyone imagine Kerry giving either of those speeches? Has he done anything comparable in twenty years as a senator? As Mickey Kaus puts it, how can "a man who showed bravery on the battlefield ... demonstrate so little of it in his political life"?

The week Kerry named Edwards as his vice president, the two had a splendid opportunity to have their own "Sister Souljah moment" with the trial lawyers' lobby. The Class Action Fairness Act was aimed at abusive forum shopping for national class actions that hurt businesses, hurt consumers, and benefited no one except a small coterie of attorneys. It had bipartisan support of the majority of the Senate across the political spectrum, including such liberal senators as Jim Jeffords, Dianne Feinstein and Charles Schumer. The bill had earlier stalled by one vote when both Kerry and Edwards failed to provide the critical sixtieth vote to invoke cloture of a filibuster against it, but it was on the verge of passing the week Kerry made his VP pick after some minor changes prompted three opposing senators to switch sides.

How easy would it have been for Kerry and Edwards to send an olive branch to a business community worried about the unprecedented nomination of a such a vocal opponent to tort reform? Even with the business community clearing its throat about Edwards's nomination (including the Chamber of Commerce threatening to break tradition and take sides in a presidential election), Kerry-Edwards let the moment pass. The order went out for the Democrats to kill the bill. It was more important to Kerry-Edwards that a handful of attorneys be allowed to continue to skim from consumers and businesses than for Kerry-Edwards to try to neutralize the perception (now shown to be accurate) that they were doing the trial lawyers' bidding.

It would be one thing if this were an aberration. But it is not. Edwards, of course, made his name from questionable lawsuits against doctors, defended the litigation culture, and has regularly been the point-person to oppose tort reform. Kerry was in the 61-37 minority when he voted against the (later-vetoed) Common Sense Product Liability Reform Act of 1996, vocally opposed efforts to limit the multi-billion-dollar transfer of wealth from taxpayers to attorneys in the tobacco settlement, and has actively courted ATLA in the 2004 campaign.

One will note that noone screamed bogeyman tales about the fact that Bill Clinton was a lawyer, or that Hillary Clinton or Joe Lieberman or John Ashcroft or Evan Bayh are lawyers, or even (before he picked Edwards) that Kerry was a prosecutor. John Edwards isn't the subject of criticism because he's a lawyer. John Edwards is the subject of criticism because he's the personification of a lobby of a subset of lawyers that have sucked billions out of the American economy and are actively seeking to do more damage. It's not that tort reformers are worried that John Edwards is unduly influenced by the millions of dollars he's received from the plaintiffs' bar (though an earlier Democratic administration might have been); it's that the plaintiffs' bar has given Edwards millions of dollars because they know that John Edwards is a true believer. (ATLA was holding its annual convention when Kerry announced Edwards; there was "a whole lot of cheering and foot stomping" in response to the news, said New York State Trial Lawyers Association president Shoshana Bookson.) Kerry and Edwards have regularly taken the side of trial lawyers over the public interest, and their campaign demonstrated out of the gate that they would do so even when doing so would cost them political points in what looked to be a close election. How can we expect them to support tort reform, much less meaningful medical malpractice reform, when actually in office?

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Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.