- The Washington Times - Wednesday, July 23, 2003

A little over 200 years ago, possibly on a muggy July morning, Thomas Jefferson expressed frustration with the slow pace of legislation in the Senate. At breakfast with President George Washington, Jefferson, who was in Paris during the Constitutional Convention, asked why the Founders created an upper body. Washington answered with a question, “Why did you pour that coffee into your saucer?” “To cool it,” Jefferson replied. “Even so,” responded the president, “we pour legislation into the senatorial saucer to cool it.”

Washington and Jefferson’s legislative china cabinet never contemplated repeated partisan filibusters as a procedural delaying tool, but they would have found a way to turn the opposition to their advantage. Over the next few months, Republicans can do just that in their ongoing battle with the trial bar.

Lawmakers poured tort reform into the senatorial saucer this month, and the momentum to pass critically needed legislation chilled considerably. Yet, do not confuse cooling the legislative brew with pouring it down the drain. Despite reform efforts hitting some bumps after two major tort bills (medical liability and class action) passed the House earlier this year, persistent and creative advocates can use the Senate’s more deliberative pace and the Republicans majority’s procedural advantages to remain on the offensive.

Two important litigation reform efforts suffered setbacks earlier this month, and a third’s fate is questionable when Congress reconvenes after the August recess. Senate Democrats successfully blocked consideration of medical liability reform through a filibuster two weeks ago. Moreover, legislation on asbestos lawsuits appears mired in the muck of labor and industry opposition. Finally, class-action reform, scheduled for Senate consideration in September, also appears a few votes short of overcoming still another Democratic filibuster.

Despite these challenges, tort reform advocates possess some powerful weapons — even in the Senate. By creating different versions of tort reform — what some are calling the “mutation” strategy — and exercising their scheduling power, Republicans can force Democrats to cast repeated tough political votes. This will yield positive results, both on the policy and the politics of tort reform, if advocates are patient.

The “mutation” strategy started earlier this year, segmenting the tort reform issue into separate battles on issues such as asbestos, malpractice and class-action reform. Fighting three separate battles on different fronts stretched the resources and energy of the trial bar to its limits. Victor Schwartz, a well-known Washington attorney in the tort reform debate, told the National Journal last week that, with three bills moving through Congress, “trial lawyers are facing a hurricane, a tidal wave, and a tornado.”

Yet, the political climatological conditions could change again, if Republican lawmakers further “mutate” tort reform — and certain advocates are suggesting a way to do just that.

Medical malpractice reform, for example, is ripe for further mutation — possibly stretching trial lawyer political resources to a breaking point. Reform advocates are contemplating dividing the issue into four separate pieces — dealing with areas most in need of reform and politically difficult to oppose. For example, separate legislation could cap damages and awards for specific medical providers in: 1. rural areas; 2. emergency room employees; 3. obstetricians/gynecologists; and 4. those sued providing medical assistance as “Good Samaritans.”

This strategy is both clever and effective, according to reform watchers. “Tort reform usually only succeeds if Congress addresses it in bite size pieces,” says Charles Gabriel, senior vice president of Prudential Securities Washington Research.

Creating additional vehicles for tort-reform legislative transforms some of the more deliberative aspects of the Senate into an advantage. First, forcing multiple filibusters further dilutes the political resources of the trial bar. “Instead of asking their Democratic allies to filibuster one or two issues, they have to do six. That gets tough, even for the trial lawyers,” adds Mr. Gabriel. Second, the Senate’s slower, deliberative process allows tort reform advocates to highlight the outrageous positions of the trial bar. They support a system that forces women in Missouri to travel to Kansas to have a baby because their OB/GYNs can’t get insurance. Third, if the Democrats insist on extended debate, it allows advocates in the Senate to repeat these messages numerous times with voters. Repetition of the urgent need for action helps underscore the need for tort reform. “It highlights with voters that Democrats repeatedly choose special interests over broader public concerns,” said a Republican Senate leadership aide.

Unlike the House, which passes bills quickly because of its rules, Senate has procedures requiring more legislative sips than gulps. But, by cooling the legislative process and highlighting the unseemly positions of a powerful special interest, the Senate is setting the table to serve some critically needed tort reforms and maybe break some of the trial lawyers’ expensive china.

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