Op/Ed: Déjà Vu All Over Again: Bush And Tort Reform

By Joanne Doroshow
CJ&D Executive Director

When Governor George W. Bush took office in 1995, one of his first acts was to meet with nine corporate groups in a salsa factory outside of Austin, after which Bush declared a legislative "emergency" on "frivolous lawsuits."

Bush went on to sign a series of laws that insulate Texas corporations from lawsuits for their reckless behavior and strip the rights of injured Texans who would be entitled to compensation. These "tort reform" measures included: capping the damages that big corporations must pay when they injure or kill (e.g., Ford/Firestone); diluting Texas's Deceptive Trade Practices Act to benefit, among others, used car salesmen and real-estate developers; making it more difficult for the sick and injured to sue malpracticing doctors; immunizing teachers from liability for hitting children; and prohibiting Texas cities from suing gun makers and sellers.

According to Dan Lambe of the consumer group TexasWatch, these laws "set back hard-fought consumer protection victories by decades, making it more difficult for injured workers and Texas families to hold irresponsible wrongdoers accountable."

Thanks to Bush's record in Texas, "tort reform" emerged as an "under-the-radar" presidential campaign issue that Fort Worth Telegram columnist Molly Ivins cynically dubbed his "sole legitimate claim to be a 'reformer with results.'" Now that he's going to be president, we might ask what Bush's Texas record portends for all Americans.

So Much For States' Rights

First, it should not necessarily mean anything. Bush, after all, campaigned hard on an anti-Washington, states' rights platform and there has hardly been an area more traditionally reserved to the states than liability law, or tort, in lawyerspeak. Unfortunately, as the U.S. Supreme Court decision anointing Bush president clarified for most Americans, hypocrisy doesn't seem to thwart partisan Republicans from interfering with state authority when it suits their agenda.

And it certainly hasn't stopped Bush. In February 2000, he released a "tort reform" package containing several measures aimed at penalizing injured consumers and their attorneys, and taking authority away from local judges and juries. During the presidential debates, he expressed specific support for a federal law immunizing teachers who hit their students.

With Congress now split and Senate Democrats likely to stop any radical new legislation, tinkering with bills from Congress's last session might be as far as Bush can go, at least early on. A controversial class action bill will undoubtedly earn Bush's support when it resurfaces again. This law would make it more difficult for consumers to succeed in class action lawsuits against corporations that commit fraud and other violations of consumer health, safety, and environmental laws.

There's also the Patients Bill of Rights, which would, among other things, allow consumers to sue HMOs for malpractice. This incredibly popular idea doesn't sound like something Bush would go for, except that during the campaign, he had the gall to take credit for enacting a similar law in Texas. In fact, as governor Bush actually vetoed the bill once and then let it become law without his signature when a veto-proof majority passed it again.

While a Patients Bill of Rights sounds like a great idea, Bush and the Republicans also have a special fondness for "capping damages," especially punitive damages that hold corporations accountable for their most severe misconduct. Unfortunately for consumers these "states rights" advocates are likely to support such a cap on HMO liability, allowing the cash-greased Congress to overrule the judgments of local judges and juries in cases where bad HMO decisions have egregious outcomes.

Why Is "Tort Reform" On The Agenda?

At a time when corporate profits are booming, tort filings are declining, only two percent of injured people sue for compensation, punitive damages are rarely awarded, liability insurance costs for business are minuscule and the premium-gouging underwriting practices of the insurance industry have been widely exposed, it may be hard to understand why "tort reform" is even on the national agenda.

The answer, of course, is money. Texans for Public Justice (TPJ) reported in a January 2000 study that political action committees, businesses and individuals affiliated with Texas's two major corporate tort groups -- Texans for Lawsuit Reform and the Texas Civil Justice League -- contributed $4.1 million to Bush's two gubernatorial campaigns, outspending every other special-interest donor except for those in the "energy and natural resource" category. And major corporate interests contributed heavily towards his presidential bid, as well.

According to Dan Lambe of TexasWatch, "The special interests got a hefty return on their investment in George W. Bush as Governor and there is no reason to believe they won't be seeking the same after getting him his new job."

TPJ's Andrew Wheat put it this way: "Because the same interests financed Bush's presidential bid, it's looking like, what Yogi Berra would call, 'deja vu all over again.'"