| President's Column
March 2006 / Volume 42, Issue 3
Warped Washington
There’s a new way of doing business in
Washington. It used to be that an elected lawmaker would have an idea,
write it into a bill, and introduce it in either the Senate or the House
of Representatives. The bill would then go to committee, where it would
be studied, discussed, perhaps changed, and then either approved or
killed.
If the bill survived, the next step was, of course, debate about the
idea on the floor of the whole body, during business hours and in full
view of the public. The process was memorialized by Schoolhouse Rock in
the song “I’m Just a Bill.”
That’s the old paradigm. We live in a new age now. Both houses of
Congress, as well as the White House, are under the control of people
who care most about what the corporate CEOs want, not what the people
need. I don’t mean that to be a partisan statement. It’s a statement
about ideology and priorities. Even this crowd, though, understands that
real people still get to vote occasionally, so they’ve developed two new
ways to serve their corporate CEO masters, enact laws that hurt ordinary
people, and hide their schemes from the voters.
The first involves the legislative process. “Bill” would hardly
recognize it now. It starts with a “must pass” piece of legislation,
usually one that’s very long, like a budget reconciliation bill,
transportation bill, or military spending measure. Once that bill is
passed by both houses in slightly different forms, it goes to a
conference committee.
 Then, sometimes while the conferees are still considering the
differences between the versions (but in at least one case after the
conferees had signed off on a compromise), an unjust, anticonsumer
measure is tacked on by “leadership.” Progressive legislators are given
a Hobson’s choice: Capitulate or be accused of stopping essential
legislation. Interestingly, these tactics take place not in the light of
day, but usually in the middle of the night (once at 3 a.m.).
The enemies of the people used this tactic last year to eliminate
vicarious liability for rental car companies. In another egregious
example, they tacked immunity for drug companies onto a defense bill.
Not only does that provision give immunity at the discretion of a
cabinet member (the secretary of the Department of Health and Human
Services), but it also immunizes even gross negligence and reckless
misconduct. Under this law, a drug company could cause a pandemic with
tainted vaccines and still be immune from responsibility.
The major beneficiary of this congressional largess will be a
multibillion-dollar French corporation. This giveaway occurred in the
dead of night and over the objections of veterans’ groups, parents of
vaccine-injured children, the editorial writers of dozens of major
newspapers, and even the conservative Eagle Forum.
Pushing preemption
The other new attack on safety and responsibility is coming from
administrative agencies—controlled, of course, by the White House. For
example, when Congress directed the National Highway Traffic Safety
Administration (NHTSA) to issue new roof-crush standards, NHTSA ignored
Congress’s instructions by proposing both an inadequate safety rule (70
percent of cars on the road can already pass the new test) and a
preamble stating that the rule is intended to preempt state tort law.
Even worse is the final rule the FDA recently issued on prescription
drug warning labels. Like NHTSA, the FDA included a preamble stating the
agency’s position that the new labeling requirements preempt state tort
claims. The final rule is the polar opposite of the one that was
originally proposed, which explicitly stated that the new label
requirements would not preempt state law. The FDA even admitted at a
January press conference announcing the rule that the provisions were
added behind the scenes after consulting with the drug industry.
AAJ’s lobbying staff is working overtime to meet these threats. They
are the most professional, dedicated, and talented people in Washington.
Their work is a marvel to watch, but it grows increasingly difficult as
we lose legislators committed to serving people instead of special
interests.
It’s up to us, as AAJ members, to change that. The coming elections are
critical. There’s a real chance to put people who care about people back
in control of the Senate and to gain seats in the House.
Winning those races takes money. If you care about your clients, you’ll
give—and give now. Pay attention to the candidates on AAJ’s List. Get
involved in local races, and don’t forget to contribute to AAJ PAC as
well. Don’t wait for someone else to do it. The survival of the
Constitution and of the best civil justice system in the world is at
stake. Do not let this moment pass you by.
—Kenneth M. Suggs
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Articles: "New President Hopes to Boost Trial Lawyers' Image"
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