Monday, March 28, 2005

Legal reform is on the march in Congress, but Democratic lawmakers appear out of step with their constituent base on the issue. Earlier this year the House and Senate enacted class- action reform, and are now poised to do the same on bankruptcy legislation after the Easter congressional break. Lawmakers have other initiatives in their sights for later this year, like asbestos litigation and medical malpractice reforms. The trial bar, while far from vanquished, is under siege on a number of fronts — not facing one apocalyptic battle, but certainly getting wet feet from the leaking levy that used to keep these issues bottled up.

Most Democrats have been in lock step with the trial bar on these questions. All but 15 Democrats voted against medical-malpractice reform last year. A large majority of their party also voted against class-action reform earlier this year. Democrats also supported most of the defeated amendments aimed at upsetting the delicate balance on the recently passed Senate bankruptcy reform measure, which the House considers next week (week of April 4th).

Are all these “no” votes supported by Democratic voters? Polling data suggests otherwise. While less supportive than Republicans, Democratic voters are more positive on legal reforms than their representatives in Congress. These are the results of the recent American Survey, conducted by Dutko Worldwide (January 12-16, surveying 800 registered voters, margin of error +/- 3.5 percent). For example, we asked a generic question about legal reforms (do we need it or is the system fine because it protects victims? see Chart 1). Republicans overwhelmingly support reform (86 percent to 12 percent), but so do a majority of Democrats (67 percent to 28 percent).

A similar pattern exists when we asked questions about “cutting down on frivolous lawsuits as a way to reduce healthcare costs” and reform “as a good way to prevent rising costs in many industries” (Charts 2 and 3).

In each case, a large percentage of Democratic voters support positions consistent with legal reform. It raises the question why congressional party leaders and rank-in-file members are so opposed to these reform measures when self-identified Democratic voters embrace the value of legal reforms. Are they listening to their constituents or trial bar lobbyists? Continued Democratic opposition to legal reform in Congress may ultimately convince a larger percentage of rank-in-file voters to oppose these changes. Such “priming” of rank-in-file voters by congressional party elites happens frequently as political debates heat up. But that transformation in the electorate has not happened yet. In the mean time, continued Democratic opposition to most legal reforms in Congress appears out of sync with the preferences of their self-identified partisans.

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