Section 1 of "The Attack on Trial Lawyers and Tort Law"
Tort Reform Organizations and the Far Right
"For the last 15 years, insurance companies, manufacturers of dangerous products and chemicals, the tobacco industry and other major industries have been engaged in a nationwide assault on the civil justice system. In nearly every state and in Congress, corporations and their insurers have waged a relentless campaign to change the laws that give sick and injured consumers the ability to hold their offenders responsible for the injuries they cause. . .
Since 1991, 'tort reform' advocates have set up dozens of tax-exempt groups . . . to plant their 'lawsuit abuse' message in the media and the public consciousness, and to influence legislation, the judiciary and jurors. These groups claim to speak for average Americans and represent themselves as grassroots citizens groups determined to protect consumer interests. But their tax filings and funding sources indicate that they actually represent major corporations and industries seeking to escape liability for the harm they cause consumers -- whether it be from defective products, medical malpractice, securities scams, insurance fraud, employment discrimination or environmental pollution. These organizations hide their pro-business agenda behind consumer-friendly names like Citizens Against Lawsuit Abuse, Stop Lawsuit Abuse, Lawsuit Abuse Watch, and People for a FAIR Legal System."
"The CALA [Citizens Against Lawsuit Abuse] Files -
The Secret Campaign by Big Tobacco and Other Major Industries to Take Away your Rights," a report by the Center for Justice and Democracy and Public Citizen
Studies like the "The CALA Files" show that, since its inception in the 1980s, the industry-funded "tort reform movement" has pursued a strategy of creating and funding numerous seemingly-independent advocacy organizations that push tort-reform arguments, work to discredit opponents, and use marketing methods to change underlying public attitudes over the long term. Well-known tort reform organizations include the American Tort Reform Association (ATRA) -- "a coalition of more than 300 major corporations and trade associations," according to "The Cala Files" -- and its numerous state Citizens Against Lawsuit Abuse (CALA) organizations, as well as several state Lawsuit Abuse Watch (LAW) organizations. (For examples of national and state organizations that advocate tort reform, see Appendices 4, 5 and 6)
Their strategy has included the use of phony "grassroots" campaigns designed to give an impression of widespread public support for an issue, the circulation of false or misleading lawsuit scare-stories, the creation of organizations and websites like "Lawyers-Stink.com" that seek to defame and diminish lawyers in the public mind, and the dissemination of anti-lawyer jokes and cartoons. (See Appendix 3)
Most importantly, the tort reform movement is associated with a network of organizations, such as the Heritage Foundation, the Washington Legal Foundation, the Cato Institute and the American Legislative Exchange Council. All are part of the self-described "conservative movement."
Right-wing organizations in this network all receive major general operating support, project grants and coordinated strategic guidance from a core group of interlocking, ultra-conservative foundations that has been working for nearly thirty years to alter public attitudes and move the national agenda to the right. This core group of right-wing foundations includes the Scaife, Castle Rock (endowed by the Adolph Coors Foundation in 1993), Bradley, Olin and Koch foundations. (See Appendix 4)
"Five foundations stand out from the rest: the Lynde and Harry Bradley Foundation, the Koch Family foundations, the John M. Olin Foundation, the Scaife Family foundations and the Adolph Coors Foundation. Each has helped fund a range of far-right programs, including some of the most politically charged work of the last several years."
- "Buying a Movement," People for the American Way Foundation
These foundations are associated with the extreme right of the political spectrum. The Bradley Foundation's money comes from Harry [*] Bradley, a member of the John Birch Society. The Coors Foundation previously financed the John Birch Society. The Koch Foundations were founded by Charles and David Koch, sons of Fred Koch, founder of the John Birch Society. David Koch, the 1980 Libertarian Party Vice Presidential candidate, funds many libertarian organizations, and is co-founder of the libertarian Cato Institute. William Simon of the Olin Foundation was a member of the secretive Christian-Right Council for National Policy, and chairman of an organization set up by the Rev. Sun Myung Moon's Unification Church. Richard Mellon Scaife and his foundations were the primary funders of the anti-Clinton efforts of the 1990s, which included funding the vitriolic magazine, American Spectator. As for today's John Birch Society, it is currently engaged in a "Get US Out!" (of the UN) campaign, a philosophy reflected across the right-wing movement.
There are now over 500 organizations, of which Heritage Foundation is the most influential, all receiving funding from this core group. A 1999 study, $1 Billion for Ideas: Conservative Think Tanks in the 1990s, shows how well-funded these organizations are. The study found that the top 20 of these organizations spent over $1 billion on their ideological campaign in the 1990s, not only on tort reform, but on a number of other issues they are advancing.
The right-wing funders, their organizations and associated politicians are closely linked, centrally coordinated and act in concert -- that is why they can be considered components of the same movement. Since these individuals and organizations owe some portion (if not all) of their livelihood to a very small core group of funders, they cannot be expected to act independently.
Right-wing funding patterns support lock-step coordination. One example of this coordination is a weekly meeting hosted by Grover Norquist, of the Scaife/Coors/Olin /Bradley (among others)-funded Americans for Tax Reform, and attended by representatives of the funding foundations, major right-wing organizations like the National Rifle Association, the Christian Coalition and the Heritage Foundation, the Republican Party, House and Senate Republican leadership, right-wing associated media, and the White House. Robert Dreyfuss, in his Nation article "Grover Norquist: 'Field Marshal' of the Bush Plan," writes, " 'The meeting functions as the weekly checklist so that everybody knows what's up, what to do,' says Kellyanne Fitzpatrick, a conservative pollster who has been a regular attendee for years."
A USA Today story, "Pipeline Leads to White House" says of Norquist, "To the extent that there is a conservative network, Grover is at the switchboard." Explaining how Norquist's weekly meetings are used to keep varied organizations and individuals in line, a Guardian Limited story says:
"While the ostensible purpose of the meeting is to share information and coordinate strategy, they also give Norquist the opportunity to act as an ideological enforcer. When one member of the Bush administration worried to a New York Times reporter that the administration's plan to repeal the estate tax would cripple charitable giving, he was publicly warned by Norquist that this was 'the first betrayal of Bush', and was gone not long afterward. When a conservative pundit . . . criticized a fellow conservative . . . she was immediately informed by Norquist to decide 'whether to be with us or against us'. She was no longer welcome at the meetings."
David Brock, in his book Blinded By the Right, described from inside this "movement" how different parts of the right-wing web and their funders interacted during the attempt to remove President Clinton from office. Brock writes that funding was supplied by Richard Mellon Scaife, with Federalist Society (partly funded by Scaife) lawyers and judges working behind the scenes assisting Special Prosecutor Ken Starr and supplying information to the (partly Scaife-funded) American Spectator magazine.
The interconnectedness of these organizations -- leveraging the work of individuals and organizations tied to this movement -- increases their effectiveness in disseminating messages to the public through seemingly independent channels. Individuals whose education was directly or indirectly funded by scholarships from the core group of funders and obtained at educational institutions that receive funding from this core group then graduate to work at organizations that receive funding from this core group, producing work that is funded by grants and fellowships from this core group. Their research cites other research pieces, published by others similarly receiving funding from this core group. Their books are published by publishers receiving funding from or ideologically associated with this core group, promoted by media and businesses ideologically associated with this core group, reviewed by other individuals similarly associated with this core group, and sold in part through channels ideologically associated with the goals of this core group. In addition, still other organizations that receive funding from this core group then refer to this work to validate and give the appearance of credibility to their own work or messaging. (See Appendix 2)
"The overlap among members of foundations, think tanks and, increasingly, the Bush team, borders on the incestuous."
- "Perspective: Who funds whom?" Energy Compass
This interconnectedness gives their "research" an aura of credibility by citing each other's work and presenting it as conducted by independent, authoritative sources. The majority of the "conservative" experts and scholars writing newspaper op-ed pieces, books and magazine articles, and even the organizations that generate the "talking points" and position papers used by TV pundits and radio talk show hosts, are directly funded by, work for organizations supported by, or receive some form of support from this core group of funders. (See Appendix 2)
This pattern of concentrated, interlinking financial backing and ideological interconnectedness is found in conservative organizations backed by the core group of funders previously described. A similar pattern is not found between the funders and organizations outside the right-wing movement.
Tort reform has been sold to the public on the bases of (1) "unreasonably" large settlements that "greedy" attorneys receive: (2) silly, unworthy ("frivolous") lawsuits; (3) adverse impact of lawsuits on the cost of products and insurance premiums; (4) adverse impact of malpractice suits on the cost, quality, and availability of medical care; (5) adverse, "unfair" impact on certain industries (e.g., tobacco, asbestos, fast food); and, finally, (6) the purportedly unscrupulous nature of trial attorneys.
But a number of tort reform arguments rest upon a broader, underlying ideological foundation, one built around the ideas of personal responsibility, free markets, deregulation of business, and privatization of government functions. For example, the values of self-reliance and personal responsibility are evoked in tort reform arguments regarding the dangers of cigarette smoking and fast food. The free enterprise theme is frequently evoked in arguments for limiting punitive damages, because of the potential harm to a company or a whole industry. By promoting an anti-government, pro-corporate philosophy that encompasses many issues, the Right has laid the ideological groundwork for public acceptance of these tort reform arguments. The problem is that the right's ideologues have warped the values they claim to espouse, and the danger is that they have taken them to extremes.
In an article in Capitalism magazine, Joseph Kellard links tort reform to "personal responsibility," using hyperbolic and ideologically loaded language such as "statist" to describe those who believe in government, "looting of individuals" to describe taxes, and "physical force" to describe laws. He decries
"...the falsehood of 'social responsibly', i.e., [the idea] that each individual is somehow responsible for others. This statist idea of evading and manipulating the essence of personal responsibility so as to transform its meaning to include social interdependence, on which Medicare and certain anti-tobacco crusade 'causes' are based, engender injustices, such as the looting of individuals to support the lives of others.
The corollary and equally crucial distinction that statists must destroy to perpetrate these injustices is between voluntary, self-responsible action and the initiation of physical force. If a company sells cigarettes -- especially when warnings of their possible detrimental health effects have been forcibly placed on each cigarette pack for over three decades, health effects of which were widely known for many decades prior to such warnings -- and people voluntarily smoke their cigarettes and become ill from them, then such harm is not the responsibility of the tobacco company, any more than it is McDonald's responsibility if one often consumes their hamburgers and subsequently develops heart disease. When failure of personal responsibility for discovering the known dangers and consequences of anything one voluntarily ingests are excused, and when laws are subsequently enacted which hold others, i.e., businessmen, responsible for initiating force for what individuals have voluntarily indulged in, then irrational lawsuits are filed and justice becomes impossible."
Similarly, an Insurance Journal story, "What About Personal Responsibility," declares, "People bring lawsuits against other people and businesses for an almost endless variety of reasons. Some are legitimate, many are not. And most of the time, the claims that seem to be absurd or even downright frivolous may never have happened if the claimants had only used common sense or had taken the responsibility for their own actions."
These and similar arguments have been used frequently to make a case for tort reform, but they also are the basis for right-wing arguments on other issues. A restrictive notion of "personal responsibility" also underlies the right-wing philosophy of limiting government's ability to help people. In "Do You Really Believe in a Limited Government?" Randall R. Rader, a Federal Judge and member of the Federalist Society, writes: "If we profess a philosophy of limited government, we profess in the same breath a faith in unlimited personal responsibility."
From there, it's not a great leap to eliminating Social Security (or, for that matter, any of the other entitlement or service programs designed to help the needy). Lawrence W. Reed, former president of the Mackinac Center for Public Policy, (which receives funding from Scaife/Bradley/Koch), argues that "in a free society, responsibility for one's retirement is too important to relinquish to the vagaries of politicized programs. . . . Social Security, make no mistake about it, will ultimately be privatized partially or wholly. . . . It's time that Americans take back a responsibility they should never have trusted to government in the first place, one way or another, the sooner the better."
In "Personal Responsibility: A Brief Survey," David Duff ties "personal responsibility" ideology to yet more standard conservative issues, advocating the elimination of public schools ("When parents began to delegate educational responsibilities to the government, a decline soon followed."); government assistance for health care and welfare ("As with other services, health care and social welfare programs are most effectively provided by the private sector"); government regulation of business ("Government intervention or redistribution, in whatever form, hampers the accurate measure of a businessman's effectiveness in these areas"); unemployment benefits ("allowing people to live off the state while taking an excessive amount of time to find employment"); and taxation itself ("Taxation makes it difficult for many citizens to meet their responsibilities. As time passes, more and more families adopt an attitude of resignation, and fall back on government aid.")
Bringing the underlying ideology of personal responsibility back to tort reform arguments, and never missing an opportunity to ridicule attorneys, the Power-Of-Attorneys website (see Appendix 5) writes, "Personal responsibility left the building the moment personal injury lawyers took over the show and America is none the better for it."
What all these examples of the ideology of "personal responsibility" demonstrate is that attempts to refute tort reform arguments are likely to be effective only if they are supported by a campaign that addresses the underlying ideology that the Right has promoted for the past 30 years.
The alliance of the tort reform movement with the far right involves an agenda that goes beyond such tort-specific issues as jury awards. These linked movements want more than just restricting litigants' rights and weakening regulatory constraints on business. By working to limit jury awards, and thus limiting the income of plaintiffs' attorneys, conservatives seek to "defund the trial lawyers," thereby undermining the attorneys' ability to lobby effectively and to contribute money to the conservatives' political opposition.
In a candid article discussing the Right's agenda, Grover Norquist writes, "Modest tort reform, much of which has been actively considered by committees in both houses, would defund the trial lawyers, now second only to the unions‹and this is debatable‹as the funding source of the Left in America." He has also written, "Modest tort reform would deprive pillar number three--greedy trial lawyers--of billions from American consumers. In some states trial lawyers give more to Democrats than union leaders do."
This agenda is further illustrated in an August 10, 2003 Seattle Times story, "GOP using 'tort reform' as powerful political club":
"The drive to limit court-awarded damages in civil lawsuits, often called 'tort reform,' usually is framed as a contest between accident victims' rights and corporations' desire to be protected from unreasonably high judgments. Increasingly, however, the battle is deeply partisan, as conservative groups try to mobilize the political right and cripple a key Democratic constituency, trial lawyers. . .
'It's a double kiss,' said a key strategist involved in the battle taking place in Congress, state legislatures, bar associations and local judicial elections. 'Republicans get to force one of the biggest backers of Democrats to spend money just to survive and, at the same time, please everybody from the Chamber (of Commerce) to the drug companies, to the Realtors, doctors, you name it.'
Ed Lazarus, a Democratic political operative who works for the American Trial Lawyers Association, said: '(I)t's very clear what the program is ‹ it is to defund the Democratic Party.' For the GOP, he said, 'it's a double-header: more income for your side, and you take income from the other.' "
The above-mentioned Norquist stories make public what many have suspected -- that the Right is not involved in advocating tort reform solely due to their concern over the insurance rates paid by doctors or damage awards paid by businesses. In a coordinated effort to weaken their political opposition, they are similarly targeting the Labor movement through "Paycheck Protection" legislation, teachers unions through advocacy of vouchers, aid to the urban poor, and attacking voting rights.
[*] Corrected from Lynde.