ALSO VISIT

The Majority Leader of the U.S. Senate is now seeking to push a business-sponsored bill (S. 274) through the Senate, in order to forbid citizens from filing class-action suits before state courts. The word 'forbid' applies, though it does not occur in S. 274, because the bill helps defendants "remove" class-action suits from local to federal courts. The purpose of the bill, as envisioned by its backers, is to impede the freedom of citizens to access the judicial system in order to seek redress for wrongs committed against them. Though the bill's sponsors claim that facilitating the removal of class-action suits to federal courts will minimize "forum-shopping" by plaintiffs, it clearly invites forum-shopping by defendants.

The text of S. 274, Sec. 4, specifies that:

`(2) The district courts shall have original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $2,000,000, exclusive of interest and costs, and is a class action in which—

`(A) any member of a class of plaintiffs is a citizen of a State different from any defendant;

`(B) any member of a class of plaintiffs is a foreign state or a citizen or subject of a foreign state and any defendant is a citizen of a State; or

`(C) any member of a class of plaintiffs is a citizen of a State and any defendant is a foreign state or a citizen or subject of a foreign state.

By predetermining that a certain type of lawsuit can only occur in federal courts, or by installing loopholes permitting corporate forum-shopping that do not currently exist, the Republican sponsors are hoping that their supporters in the corporate world who may become defendants might better find their way to judges who will reject suits that are unfavorable to those supporters. Though the intention may be genuinely to reduce the sprawl of dubious class-action suits brought by self-interested attorneys, this will more likely spur a new wave of obstructionist defense tactics, designed to thwart citizens' attempts to access their courts, and to bring complicated truths to light.

The bill also includes inviting language providing for equal treatment of class members (i.e. requiring that some members not be more favorably treated than others). It also requires that class actions suits not cause harm to class members, who may have no actual formal involvement or say in the suit itself, and who are by definition innocent of the allegations against the defendant. But these provisions stand in stark contrast to the primary initiative of the bill, which militates against citizens' using their state courts to adjudicate class-wide abuses which may (through no fault of their own) also have occurred outside the borders of their own state.

What is puzzling about the timing of the sudden initiative is that the Senate Majority Leader chose to make his push while a major defense bill is still pending, in the midst of a war that most Americans now feel has gone desperately off course. Sen. Frist also launched this push at a time when even his own party, which is solidly aligned behind this legislation, felt it would be inappropriate, given the gravity of the crisis in Iraq, and the need to resolve Pentagon funding.

The move also came on the same day that the price of crude oil hit an all-time high. Environmental groups are making a renewed push for redesigning a so-called 'national energy bill' to feature clean, renewable resources and higher efficiency standards, as a way to ensure energy security and long-term economic sustainability. New Mexico has already adopted such legislation as a way of forging its own way to sustainability. Despite the President's calling for a showdown on the energy bill, in hopes of shoring up the economy against extreme pressure from rising fuel costs, Frist shifted gears and called for a vote on legislation to limit the rights of individuals to sue corporate criminals.

The question clearly emerges as to whether the Majority Leader's surprise maneuver was timed to coincide with a sort of political cover coming from other major issues of the day. The Senate reportedly rejected Mr. Frist's initiative, considering it in poor taste with such vital security interests currently at issue. As a result, Mr. Frist has postponed the vote himself, in what amounts to a stunning about-face on an issue which he felt was so urgent only this morning.

Some opponents and critics of Frist are reminded by the incident that his raison d'être législateur is quite possibly based on his personal interest in shaping a favorable environment for his family's healthcare management business. If the Senator holds a stake in one of the country's largest privately held hospital chains, or knows he will upon leaving office, as is frequently reported of the former physician, then his interest in reducing its exposure to massive financial penalties for negligence is clear and easily defined within the context of S. 274.

Some cynics will suggest a direct connection favoring the class-action constraints before a defense spending bill and the imminence of the defense bill itself, because many corporate interests have sought to limit their exposure to civil liabilities through association of their activities with national security (a provision was included in the Homeland Security bill itself that offered unconditional immunity from lawsuits for vaccine-producers, even where they knowingly used what the Alliance for Human Research Protection calls "adulterated products"). Even doctors' groups that call for tort reform believe shielding HMOs from liability will directly harm patient care and endanger lives.

Personal ambition and self-interest have been thought to drive other decisions made by Frist in recent weeks. In May, he announced would campaign in South Dakota to actively push for the defeat of his Democratic counterpart, Tom Daschle. Knight Ridder called the move an "unprecedented step in modern history", saying "no leader of one Senate party has invaded his counterpart's turf to campaign for his defeat."

One of the principal theories put forth for Frist's brash departure from Senate decorum is the fear of some Republicans that they may lose the Senate in November, leading to Frist's reclassification as Minority Leader and the dampening of his presidential aspirations for 2008. It would seem a brave assumption, but if even throughout the turbulent years of Watergate, Iran-Contra and the Starr Report, there is no precedent for this move, and history dictates that in time of war the Senate has prized solidarity over partisanship, then there are few viable explanations for Frist's aggressive political assault.

Various business lobbies have been calling for action on the legislation, accusing the Senate of exemplifying a "do-nothing Congress". Debate on the bill has been tied up by an ongoing filibuster, which requires that 60 senators vote in favor, just to bring the bill to a vote for passage. This has caused frustration among the bill's chief proponents, many of whom currently face staggering potential losses from major class-action lawsuits, like those involving asbestos and claims of negligence and deliberate exposure of individuals to cancer-generating compounds.

So a less cynical, but still disconcerting possibility, is that Mr. Frist has raised the issue now precisely to placate corporate lobbies that organize support for his party, as the nation enters the political season leading up to the November elections. The real impetus for Mr. Frist's untimely push will most likely remain a mystery to all but the Majority Leader himself, but what readers should consider is the gravity of the legislation in question, and the manner in which it was brought to the fore today.

If Mr. Frist's pet project is passed, there may be a hygienic effect in the overall function of the judicial system, as cases are consolidated and/or cleared out across the country. That does not, however, mean the system will function better or produce better adjudication for American citizens with legitimate grievances. For a party which has so often called for strict protections of states' rights, it is indeed unusual that they seek to effectively nationalize a vital segment of citizens' complaints to the civil courts. The first and most pronounced effect would be to severely limit the access of individual plaintiffs to the court system.

The second, and perhaps more subtle effect would be a strange new antagonism between federal and state laws. This particular sort of tort reform would reduce the overall number of cases, thus lessening the burden for corporate defendants, but it would also raise Constitutional questions about whether the federal government can prohibit citizens' access to state courts. It would essentially impose a sweeping ban on class-action suits in all 50 states, not all of which are likely to agree with such a state of affairs.

The fact that this particular issue, so contentious as to generate a filibuster, was brought up at such a time, and in such a way as to be opposed even by many of its dedicated supporters, at a time when the confidence of the American people in their leadership is faultering, in the midst of a war and with such partisanship already on display, speaks most clearly about the dedication of the Majority Leader to his role as public servant and the nature of his allegiances. The bill would best affect the average citizen by shaving a few cents off the cost of various goods and services, but would provide millions to some of Mr. Frist's and the President's most dedicated fundraisers.

While some judgements are extraordinary, not even the tobacco verdicts have bankrupted the cigarette producers. What is lost on many supporters of tort bans and legislative predetermination of court cases is that these judgements most often stem from community anger over the impunity of those guilty of a given fraud or of inflicting harm on innocent people. Frivolous lawsuits can be thrown out by any judge, at any time, if they do not meet the evidentiary standards of our legal system. The crisis emerges from the fact that individuals responsible for massive fraud or for massive harm to public health are not prosecuted in the criminal justice system as individual criminals.

The tort system is designed to serve as another source of societal reform, in which individual citizens, or members of a legal "class" take action to impose punishments the government has not been willing to impose through criminal prosecutions. The system is designed to be parallel to the criminal justice system, not necessarily mutually exclusive, and therefore serves as a measure of community sentiment and of the legislative will of the people, as such, unfiltered by government jargon, pretense or professional political bias. In this way, the tort system for all its sloppy meandering and unpredictability, is a kind of citizen-based reform, which helps fill in the gaps in our system of checks and balances.

Such an aggressive strike against that system may have the unforeseen consequence of consolidating the strangle hold of wealthy special interests over career politicians, by effectively erasing a large amount of direct public input into the legal system. While that may not be the intention of legislative sponsors, it most certainly serves some of the interests backing the legislators who have signed on, and that should signal the need for serious public debate where people are allowed to profess not only the inadequacies but also the virtues of the American system of jurisprudence.

These assertions are not an irrefutable confirmation that the Senator's motives are so narrow. They are not a final word, by any means, on his qualities as a leader, but they should serve to illustrate which judgements about his personal interests and their role in his legislative priorities are most reasonable, and which are most likely a case of naïveté. We would all be better served to see a Senate where leaders seek to achieve a climate of debate where all citizens will be represented vigorously and where the top priorities are those closest to ensuring engagement with the core values of our democracy, not those closest to the purse and careerism of individual politicians.

First Amendment to the US Constitution:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." [emphasis added]