February 9, 2010

Note: Today's Trial Lawyers, Inc.: K Street Live Event Now an Online Presentation / Conference Call

IMPORTANT NOTE: To anyone who was planning on attending MI's live event on Capitol Hill this afternoon, at which we were to unveil the newest Trial Lawyers, Inc. report, Trial Lawyers, Inc.: K Street--A Report on the Litigation Lobby 2010, we've had to cancel due to projected inclement weather, speaker and attendee unavailability, and Senate office building closure to the public.

In lieu of the live event, we're sponsoring a conference call and online presentation, at the same time (2 pm). Stay tuned for details.

How the Plaintiffs Bar Bought the Senate

In today's Wall Street Journal, I have an opinion piece that explains how the plaintiffs' bar is using its campaign-funding largesse to buy political influence:

Since 1990, the sums donated to federal political candidates by lawyers--excluding lobbyists--exceed $1 billion, according to CRP. Lawyers as a group have given more to federal candidates than any other industry or profession. Their ability to keep tort reform out of the health-care reform bills is unsurprising: Congressional campaign contributions by lawyers in the last election cycle were about $25 million more than the combined total of political donations from doctors, pharmaceutical companies, HMOs, hospitals and nursing homes.

While some of these campaign donations come from defense lawyers (who also profit from the litigation status quo) giving by plaintiffs attorneys is far higher per lawyer (16 to 120 times greater, depending on the firm, according to Manhattan Institute estimates), and more tightly focused. Over the current six-year senatorial election cycle, four of the top seven donors to the campaign committee and leadership PAC of Senate Majority Leader Harry Reid (D., Nev.) were plaintiffs firms. Plaintiffs firms were the top two donors to Senate Majority Whip Dick Durbin (D., Ill.).

I go on to list some of the goodies the trial bar has been getting out of Congress, as well as some of the top items on its wish list, many of which will be familiar to the regular readers of this site.

Moreover, I argue that the political power of the plaintiffs' bar is integrally linked to the post-Buckley campaign-finance regime: "Contribution limits favor those best able to 'bundle' donations. The plaintiffs bar, with thousands of well-heeled members willing to write $2,000 checks, is well-situated to play this game."

My op-ed today summarizes arguments and facts presented in much more detail in the Center for Legal Policy's newest installment in its Trial Lawyers, Inc. series, Trial Lawyers, Inc.: K Street--A Report on the Litigation Lobby 2010, which will be available later today here.

February 8, 2010

Dan Walters on Schwarzenegger proposals

The veteran California political columnist describes what the governor is trying to do, but offers this blunt assessment: "Don't hold your breath. The Legislature's Democratic majority is symbiotically welded to the trial bar." [Sacramento Bee first, second columns via Pero, earlier]

February 3, 2010

M. Patricia Smith nomination

House Republicans say the nominee for the key post of Labor Department Solicitor wasn't candid (PDF) in her representations to committee staff, but Democrats seem intent on ignoring their protests. More: Carter at ShopFloor.

A ruling on the First Amendment? We'll introduce legislation!

In the week following the Supreme Court's decision in Citizens United v. FEC, members of Congress introduced 10 pieces of legislation to limit the impact of the decision. (List here.) Other bills had been introduced before the decision, as well.

In his prepared statement today at a hearing by the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, Sean Parnell of the Center for Competitive Politics of Alexandria, Va., explained that the legislative approach is fundamentally flawed.

Among the options that are unlikely to be permitted by the Courts would be any sort of tax levied on the exercise of a constitutional right, as proposed in H.R. 4431, or the enactment of legislation that would simply restore the pre-Citizens United status quo through the back door such as H.R. 4435, a bill that would apparently forbid companies listed on stock exchanges from engaging in independent expenditures....[snip]

[The] Courts are likely to be skeptical of laws and regulations that impose burdens upon only some disfavored incorporate entities while leaving other, favored speakers free of similar burdens. For example, laws that require for-profit corporations to seek shareholder approvals for expenditures, such as H.R.s 4487 and 4537, might be struck down in court because no similar requirement is imposed on unions or other non-profits.

The others testifying ...

Laurence H. Tribe
Carl M. Loeb University Professor, Harvard Law School, Cambridge, MA

Monica Y. Youn
Counsel and Director of the Campaign Finance Reform Project
Brennan Center for Justice, New York University School of Law, New York, NY

Donald J. Simon
Partner, Sonosky, Chambers, Sachse, Endreson & Perry, LLP
Washington, DC

Senate hearing features more overheated rhetoric on Citizens United

Sen. Chuck Schumer (D-NY) chaired a Senate Rules and Administration Committee hearing Tuesday, "Corporate America vs. The Voter: Examining the Supreme Court's Decision to Allow Unlimited Corporate Spending in Elections." His over-the-top opening statement on the Citizens United ruling would have been funny were the Senator not so intent on regulating the First Amendment:

If this ruling is left unchallenged, if Congress fails to act, our country will be faced with big, moneyed interests spending, or threatening to spend, millions on ads against those who dare to stand up to them. The threat alone is enough to chill debate and distort the political process in ways that hurt the voice and influence of the average citizen.

Stopping those big bonuses by bailed out firms? Forget about it. Pushing back against polluters to protect the health of our children? No more. Regulating dangerous chemicals in drugs and children's toys? Much less of a chance.

This opinion can allow foreign interests to influence our elections, special interest spending to go unchecked and undisclosed, and corporate America to rule the day.

Sen. Robert Bennett (R-UT), the only Republican Senator attend the hearing, gave an opening statement that eschewed hyperbole for expression of principle: "This decision means one thing and one thing only - that there will be more free speech in our political campaigns. That is a good thing. It should not be feared. It should be cheered and celebrated."

The hearing webpage has video of the hearing and links to the prepared testimony. We've also posted the links in the extended entry section below.

Also, a House Judiciary subcommittee held a hearing on Citizens United this morning, and the prepared statements are posted here.

Continue reading   Senate hearing features more overheated rhetoric on Citizens United

January 31, 2010

Status report: The Administration and medical liability refrom

President Obama, speaking to House Republicans at their policy retreat in Baltimore Friday:

From the start, I sought out and supported ideas from Republicans. I even talked about an issue which has been a holy grail for a lot of you, which was tort reform, and said that I'd be willing to work together as part of a comprehensive package to deal with it. I just didn't get a lot of nibbles.

Beyond talking, the Administration's nod to medical liability reform is a Health and Human Services program of demonstration grants to states, the Patient Safety and Medical Liability Reform Demonstration announced Sept. 17, 2009. (Presidential memo, and White House fact sheet.)

HHS's Agency for Healthcare Research and Quality (AHRQ) is running the $25 million grant program. The panel called to provide input on the process, the Patient Safety and Medical Liability Reform National Advisory Council Subcommittee, held a little-reported meeting on Oct. 26, and the deadline for submitting grants was Jan. 20.

Is this a serious effort to bring exorbitant legal costs of medical care under control? Reading through the online materials, we find this, "Clarification and Update Notice for AHRQ Medical Malpractice Funding Opportunity Announcements (FOAs): RFA-HS-10-021 and RFA-HS-10-022":

The Research Objectives Section in both FOAs currently provide background information and descriptions in the areas of 1) Patient Safety and Risk Management and 2) Medical Liability. This Notice clarifies that AHRQ requires all applications for both of these FOAs to address both of these two areas in order to be responsive to the FOAs. Applications that do not address both patient safety/risk management and medical liability will not be considered responsive, and will not be reviewed by AHRQ.

So don't bother making straight-forward tort reform proposals like limiting non-economic damages.

AHRQ says peer review will take about four months, with the grants to follow four months later. That schedule puts us into the early fall, i.e., campaign season, and will give candidates an opportunity to say things like, "The Administration actually proposed health care tort reform."

(Hat tip for the President's statement, Philip Klein.)

January 30, 2010

From Iowa to Maui, trial lawyer candidates seeking cash

The American Association for Justice's winter convention opens today in Maui, and two Democratic politicians and trial lawyers are being criticized for attending fundraisers organized on their behalf. The National Republican Senatorial Committee issued a news release knocking U.S. Rep. Bruce Braley (D-IA) but mostly directed at Roxanne Conlin, a Senate candidate.

Conlin, a Des Moines personal injury attorney, is the former president of the American Trial Lawyer Association; she hopes to challenge Sen. Chuck Grassley (R-IA) in the fall. An invitation to the fundraisers was addressed to "My fellow women trial lawyers" and includes messaging on Citizens United v. FEC that we'll probably see in many direct mail pieces:

I am pleased to report that Congressman Bruce Braley and Roxanne Conlin will both be in Maui during the AAJ Winter Convention.

Congressman Braley, a trial lawyer himself, has been a steadfast supporter of our cause in his two terms in office. Since he has to run every two years, he is always targeted by opponents of civil justice, and this year will be no exception.

Roxanne Conlin, AAJ's first woman president, is running for the Senate in Iowa, hoping to unseat incumbent Charles Grassley. Since we've lost our Super Majority, Roxanne's race presents a solid opportunity to convert a Republican vote to a Democratic one!

Most importantly, given the Supreme Court's recent ruling on campaign finance, expect the Chamber of Commerce to oppose these two worthy candidates with every dollar they can muster. Now more than ever, these two incredible trial lawyers need your support!

The NRSC issued a statement from a spokesman, Colin Reed, declaring Conlin to have violated her pledge to stand against special interests.

The NRSC news release is available at IowaPolitics.com here. The Iowa Independent has a report, as well. (The Independent is one of the online news operations supported by Center for Independent Media, a 501(c)(3) non-profit that funds local reporting with a leftward tilt.)

January 29, 2010

Congress to critique corporations, First Amendment

Guess we know where Chuck Schumer comes down on the Supreme Court's ruling in Citizens United v. FEC. The Senate Rules and Administration Committee he chairs has entitled its hearing next Tuesday,"Corporate America vs. The Voter: Examining the Supreme Court's Decision to Allow Unlimited Corporate Spending in Elections."

On Wednesday, it's the House's turn. The House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties holds a hearing, "First Amendment and Campaign Finance Reform After Citizens United."

UPDATE (11:50 a.m.) Tim Carney at The Washington Examiner provides a bit of illumination, "How the court campaign finance ruling hurts Wall Street favorite Chuck Schumer," featuring a fine quote from Schumer:

This activist and far reaching decision is even worse than we had feared. This opens the floodgates and allows special interest money to overflow our elections and undermine our democracy. The bottom line is, the Supreme Court has just predetermined the winners of next November's election.It won't be the Republican or the Democrats and it won't be the American people; it will be Corporate America.

State of the Union, cont'd

UCLA lawprof Adam Winkler, at HuffPo, says "Alito Was Rude (But Right)". His colleague Stephen Bainbridge invokes Abner Mikva. Bradley Smith at NRO gets into some of the details of foreign money and U.S. politics. And Roger Clegg at NRO catches the President being tendentious on the topic of job-bias enforcement.

More: Randy Barnett (Georgetown) in today's WSJ:

In short, the head of the executive branch ambushed six members of the judiciary, and called upon the legislative branch to deride them publicly. ...

Then there is the substance of the remark itself. It was factually wrong. The Court's ruling in Citizens United concerned the right of labor unions and domestic corporations, including nonprofits, to express their views about candidates in media such as books, films and TV within 60 days of an election. In short, it concerned freedom of speech; in particular, an independent film critical of Hillary Clinton funded by a nonprofit corporation.

While the Court reversed a 1990 decision allowing such a ban, it left standing current restrictions on foreign nationals and "entities." Also untouched was a 100-year-old ban on domestic corporate contributions to political campaigns to which the president was presumably referring erroneously.

That is a whole lot to get wrong in 72 sanctimonious words. Clearly, this statement had not been vetted by the president's legal counsel. Solicitor General Elena Kagan, for example, would never have signed off on such a claim. Never.