- The Washington Times - Thursday, October 17, 2002

Trial lawyers are the reality TV of American politics expanding their presence on policy issues as shows like "Survivor" fill network programming slots. Ubiquitous and aggressive, trial lawyer legislative involvement spans a wider array of issues than most interest groups. And like schlock TV, their impact is neither particularly positive nor consistently constructive.

Unlike other narrowly focused interests, trial lawyers are in a league of their own, intimately involved in a broad set of issues like the patients bill of rights, education reform, homeland security legislation and terrorism insurance. While their "opponents" are varied, they are often disorganized and sometimes no match for the litigation bar's lobbying prowess and organizational strength. Business interests and others concerned with the trial lawyers' expanding agenda and activism must address this advocacy asymmetry or pay a high price.

While lobbying for most groups is a game of "public policy checkers," the trial lawyers engage in three-dimensional chess. What makes them so effective?

First, their members' commitment and activism is key. Campaign money is a great example. Lots of groups play the contribution game. But only an overly simplistic view of how Washington works believes cash is king. Sorry, Common Cause, but money by itself doesn't buy you anything.

An energized and inspired membership does. In addition to the $5.3 million the American Trial Lawyers Association (ATLA) political action committee (PAC) gave so far this election cycle 80 percent to Democrats individual lawyers contribute millions directly to candidates. Their national and state organizations recommend candidates that deserve support and the lawyers deliver. While federal laws limit the amount the ATLA PAC can give candidates, individual trial lawyers pony-up, aggregating hundreds of thousands of additional contributions. Few organized interests receive this type of significant personal financial participation from their members and lawmakers notice.

Exercising trial lawyer participation, early and at a variety of levels of the process, builds political muscle. "They identify people very early in their careers and nurture these relationships," someone familiar with the organization said. So, when it comes to lobbying, the trial lawyers give more than money they are political allies and close friends of the people they support.

Second, litigation lawyers play outside the box. While public-health advocates, tobacco growers and other groups worked on tobacco legislation several years ago, the measure stalled in Congress. So, trial lawyers created a new paradigm. With their allies, the state attorneys general, they created a new policy-making process, raising tobacco taxes and imposing new regulations without a single act of Congress.

Michael S. Greve of the American Enterprise Institute (AEI) notes that the tobacco agreement created a precedent that will lead to many policy decisions made outside normal congressional process. "The imposition of a quarter-trillion-dollar national sales tax on a single consumer product (cigarettes) ought to involve more than a bunch of lawyers," Mr. Greve said in a recent AEI analysis. "We want these decisions to be made after an open debate and vote in Congress as opposed to insider negotiations among plaintiffs' lawyers, industry flaks, and self-appointed custodians of 'concerned citizens.' "

Parallel policy-making mechanisms, outside the control of Congress, will result in consistent losses by opponents of trial lawyers because their adversaries won't even be in the game.

Trial lawyers also played outside the box on the asbestos litigation issue. Instead of directly advocating the creation of more litigation opportunities, they heavily fund environmental and victims groups to do the bidding. Indirect advocacy like this is sophisticated and effective, a tactic not often used by their opponents.

Finally, the trial bar's issue matrix is so broad the opposition becomes spread thin and feckless. On issues from education reform to insurance to health care, their opponents are rarely the same. Sometimes, adversaries are tough and well organized and on others issue weak or nonexistent. However, no one group, with the same organizational strength and financial resources, matches them consistently on every issue. Facing weaker competition, the trial lawyers usually win.

Intense member mobilization, clever tactics and an ever-broadening agenda, make the trial bar a formidable force in American politics. James Madison and the other Founders designed a system that works best when groups with relatively equal skills and resources compete in a process where everybody plays by the same rules.

The expanding agenda and new tactics of the trial bar, along with the absence of well-organized and financed opposition, could tip the balance dangerously in the direction of those seeking a rising tide of litigation to lift their own boats. It's time to vanquish the litigation Leviathan with quality competition before it permeates public policy the way reality TV fills the airwaves.


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