Implementing the Bush Campaign Promises By End-Running the Constitution
Part Two of a Series
Quick Disclosure: The author is a plaintiff’s practicing injury lawyer, and a registered independent voter, who prior to law school was employed as a staff assistant to a Republican U.S. Congressman for two years.
When George Bush was elected in the year 2000, he ran on a Republican party platform which included a platform that the civil justice system in the 50 states was completely broken and that reform was needed. This was quite a reversal of Republican conservative philosophy, which as late as 1976 included in the party platform this:
As a general rule, however, we believe that government action should be taken first by the government that resides as close to you as possible. Governments tend to become less responsive to your needs the farther away they are from you. Thus, we prefer local and state government….
Between 1976 and 2000 the Republican platform made a 180 degree reversal, after it became clear that more conservative federal courts and judges were better suited to snuff out various long standing state consumer protection laws. Indeed, by 2000 the Republican party official platform also stated:
We encourage all states to consider placing caps on non-economic and punitive damages in civil cases. We also support such caps in federal causes of action. We also encourage states to examine the effects on the democratic process of advancing policies through litigation that could not be accomplished through the political process.
Where was the groundswell of the public citizenry that believed that the civil justice system was broken and since when were the 50 states not better suited to protect the health and safety of state citizens? There was no such groundswell, but rather the Bush Administration determined that fundraising goals could be met by catering to large insurance companies and big corporations, and by supporting the corporate interests that assisted their candidates. A wonderful fundraising recipe indeed.
Where does the Seventh Amendment to the U.S. Constitution fit in here? It states:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
The framers of the U.S. constitution debated each amendment to the constitution, many for days, weeks or months. Trial by jury in civil cases protected state citizens from the whims of wealthy black robed judges-or from judges biased to a foreign sovereign. Why would state citizens gladly, even willingly, agree to pass state laws that wiped out or limited the right to trial by jury as at common law? They would do so only if they came to believe that they were helping themselves (ie., lower insurance rates) instead of increasing insurance company windfall profits. The trick of the insurers was convincing regular consumers—who were protected by a variety of state common law protections— that it was good for them to eliminate protections on the books that benefited them! Only really good fictional and faked news stories about gold digging injured people could convince the masses to ignore their own state law protections. Limiting verdicts, changing the common law civil case rules is a direct dismantling of the seventh amendment to the constitution.
Insurers and companies selling dangerous products-hit by jury verdicts-also learned that directly lobbying for wholesale changes to the civil jury and justice system was not effective-when their companies themselves were associated with the lobbying efforts. As Neal Cohen, one of the PR gurus behind the Manhattan Institute and its various offspring “tort reform” entities explained to a meeting of the “Public Affairs Council” in 1994, "In a tort reform battle, if State Farm…is the leader of the coalition, you’re not going to pass the bill. It is not credible. OK? Because it’s so self-serving." Cohen had been running Philip Morris’s front organization, through a consulting firm, to help the tobacco industry fight a stealth campaign against smokers’ lawsuits. According to Mencimer’s article (see Part 1 of this series) the tobacco industry was providing millions to the front organization per year-apart and aside from other insurers or companies. All this was separate and apart from the grassroots project of promoting hundreds and thousands of emails about jackpot justice, in many cases “inventing” crazy jury verdict stories that never happened–that’s right–emails you may have forwarded on to others about crazy verdicts–many were invented by the same insurance front organizations.
By 2000, the Bush administration and Karl Rove installed friendly federal agency chiefs who believed that the civil justice system was broken, and that the 50 states and their stupid juries were unfairly penalizing corporations and insurance companies. But how could the federal government, without passing a new federal law, snuff out state laws that provided safety controls and protections for consumers? The answer was to seek complete immunity/preemption for corporations at the federal level. It was too hard to change laws in all 50 states, so why not focus on snuffing out state laws at the one stop shop-the federal agencies with secretary/chiefs appointed by President Bush.
Please see Part Three of this Series, How Complete Federal Corporate Immunity/Preemption Snuffs Out State Laws
Rick Shapiro is a personal injury lawyer based in Va. Beach practicing with Shapiro, Cooper, Lewis & Appleton law firm.