How the Plaintiffs Bar Bought the Senate

The Supreme Court’s decision in Citizens United v. Federal Election Commission to permit independent campaign expenditures by corporations has led to a good deal of hysteria about money and influence in politics.

But for those, like me, who view factions as inherent in democracy, the decision was welcome. Labyrinthine campaign-finance laws serve mainly to entrench incumbents and empower those special interests either exempted from regulation (i.e., the institutional media) or best able to navigate the maze of rules. Among the latter group, no lobby has been more empowered than the legal profession—specifically the trial lawyers.

After the Supreme Court’s 1976 Buckley v. Valeo decision affirmed the constitutionality of dollar limits on campaign donations to candidates, plaintiffs attorneys realized they could work within the new rules to increase their political influence. Three years later, the plaintiffs bar set up the Attorneys Congressional Campaign Trust. Its successor organizations have given $33 million in political action committee (PAC) donations to federal campaigns since 1990, according to data gathered by the Center for Responsive Politics (CRP).

These PAC contributions only scratch the surface. Contribution limits favor those best able to “bundle” donations. The plaintiffs bar, with thousands of well-heeled members willing to write $2,000 checks, is well-situated to play this game. While corporations’ interests are dispersed among hosts of competing tax and regulatory concerns, the trial lawyers have a focused cause: maintaining the lawsuit industry and expanding legal liability rules that lead to more lawsuits.

Since 1990, the sums donated to federal political candidates by lawyers—excluding lobbyists—exceed $1 billion, according to CRP. Lawyers as a group have given more to federal candidates than any other industry or profession. Their ability to keep tort reform out of the health-care reform bills is unsurprising: Congressional campaign contributions by lawyers in the last election cycle were about $25 million more than the combined total of political donations from doctors, pharmaceutical companies, HMOs, hospitals and nursing homes.

While some of these campaign donations come from defense lawyers (who also profit from the litigation status quo) giving by plaintiffs attorneys is far higher per lawyer (16 to 120 times greater, depending on the firm, according to Manhattan Institute estimates), and more tightly focused. Over the current six-year senatorial election cycle, four of the top seven donors to the campaign committee and leadership PAC of Senate Majority Leader Harry Reid (D., Nev.) were plaintiffs firms. Plaintiffs firms were the top two donors to Senate Majority Whip Dick Durbin (D., Ill.).

The first piece of legislation signed by President Obama—the Lilly Ledbetter Fair Pay Act of 2009—gutted statutes of limitation in employment lawsuits. The first legislative triumph for new Sen. Al Franken (D., Minn.), an amendment to the defense appropriations bill, foreclosed employment arbitration clauses for federal contractors.

Pennsylvania’s Sen. Arlen Specter, now a Democrat, is a longtime trial-bar ally. Mr. Specter has introduced one bill to facilitate more legal fishing expeditions against corporate defendants, by loosening legal requirements for filing baseless claims. He’s introduced another bill to authorize more securities class-action shakedowns by allowing lawyers to sue companies that are customers or suppliers of other companies alleged to have misled shareholders. And he’s introduced still another bill to cut the plaintiffs bar a fat $1.6 billion tax break by allowing the immediate expensing of contingency-fee-litigation expenses. Mr. Specter and his trial-lawyer allies hope to ram these bills through Congress before the November elections.

The late Fred Baron, a prominent Texas asbestos lawyer, liked to boast about the trial bar’s political influence. In 2002, he reacted to a Wall Street Journal editorial that claimed the plaintiffs bar was “all but running the Senate” by saying, “I really, strongly disagree with that. Particularly the ’all but.’”

Perhaps Citizens United will help to break the trial-attorney stranglehold on national politics through its ownership of Congressional Democrats. For now, the unheralded story of the 111th Congress is how much the current Senate is living up to Baron’s assessment.

This piece originally appeared in Wall Street Journal

This piece originally appeared in The Wall Street Journal