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#768 - Extreme Threat To Class Action Lawsuits, 30-Apr-2003

Published July 10, 2003

July 10, 2003: Sometime during July, right-wing extremists in
Congress expect to achieve another major milestone in their
radical revamping of the U.S. court system. If they attain
their goal, successful environmental class-action lawsuits will
become as rare as Dodo birds.

Class action lawsuits are the only effective remedy when large
numbers of people are harmed but each person sustains
relatively small damages, making individual lawsuits
inefficient or impossible.

An example would be the current lawsuit being pursued by 6000
residents of Louisiana who say that a Mobil Oil refinery
discharged 3.4 million gallons of untreated industrial wastes
that contaminated their drinking water. No individual plaintiff
could take on Mobil alone, but the total damage may be large,
so a class action is the right vehicle for pursuing a remedy.

Class action suits are an essential component of a balanced
legal system that is supposed to provide a check on the
misdeeds of the powerful, such as oil corporations, by raising
the threat of substantial financial penalties.

With large numbers of right-wing extremists now sitting in
Congress, corporations see an opportunity to derail class
actions. So the elected representatives of the insurance,
medical, chemical, oil, and automobile corporations are pushing
a new law intended to stifle class actions. The proposed Class
Action Fairness Act has already passed the U.S. House of
Representatives (H.R. 2115) and is expected to come up for a
U.S. Senate vote (S. 274) during July.

If the proposed law passes, it will severely restrict, if not
totally derail, class-action lawsuits on behalf of the
environment, workers, consumers, and civil rights plaintiffs
such as people of color, people with disabilities, and women.

Few in the environmental community have been paying attention
as this bill has made its way through the legislative process.
Corporations, on the other hand, know exactly what's at stake
and they have poured money and resources into this fight.

At last count, corporations had 475 paid lobbyists working to
push this bill through the Senate -- nearly five corporate
lobbyists for each U.S. senator. The insurance industry alone
has 139 lobbyists promoting the bill. Health maintenance
organizations have 59 lobbyists pressing their case; banks and
consumer credit corporations have 39; automobile corporations
have 32; the chemical industry has 20 and the oil corporations
have another 19. If this proposed law didn't matter, would
corporations field such an army?

To inform yourself about this proposed law, you can check with
Public Citizen at
http://www.citizen.org/congress/civjus/class_action/articles.cf
m?ID=9320. For details, you can read their 95-page report,
"Unfairness Incorporated: The Corporate Campaign Against
Consumer Class Actions" (June, 2003), available at
http://www.citizen.org/congress/civjus/class_action/articles.cf
m?ID=9846 .

You can also learn about the proposed law from the U.S. Chamber
of Commerce at
http://www.uschamber.com/Search/SearchResults.asp?ct=USCC&q1=cl
ass+action+fairness+act .

If you decided you wanted to weigh in on this issue, you could
call both of your U.S. senators and give them an earful. (To
find your senators and their phone numbers, go to
http://www.senate.gov/ .) Proponents of the bill reportedly
have at least 55 senate votes in the bag already, so the only
way to stop this juggernaut would be a filibuster. (Extremists
in Congress are working to revise the filibuster rule, too.)

Essentially the proposed law moves all class action lawsuits
out of state courts and into federal courts, which are already
clogged and fraught with delays, and where the rules and most
of the the judges are biased against environmental, labor,
consumer and civil rights plaintiffs such as women, people of
color and people with disabilities. Much of the federal court
system is now grossly pro-corporate, often to an extreme
degree. This is no accident.

Making the courts friendly to corporations has been high on the
agenda of the right wing for 30 years. The reason is simple:
there are only about 900 federal judges. They are appointed by
the President, not elected. The Senate must approve their
appointment but by "gentleman's agreement" it is rare for the
Senate to veto a judicial appointment.

Federal judges serve for life, so once they are appointed they
become unstoppable. They also have almost complete freedom to
make any legal interpretation that suits their ideology. The
only real check on their rulings is the threat of reversal (an
embarrassment, nothing more) by one of the nation's 13 federal
circuit courts of appeal. But judges on the appeals courts are
often chosen from the ranks of the more extreme federal judges,
so they are all pretty much cut from the same ideological
cloth. It's a closed system with stupendous power to change an
entire culture. When an extremist right-wing agenda cannot be
enacted through legislation, it can be engineered through the
courts.

This explains why right-wing ideologues set out in the
mid-1970s to pack the federal courts with their own kind, then
to "educate" the judges about economics and ideology by
inviting them to all-expense-paid "workshops" held at vacation
resorts,[1] and then to engineer changes in precedents and
procedures -- all for the purpose of making federal courts
sympathetic to corporations and the rich.

Previously, no one had ever set out to take over the entire
federal court system. The plan was breathtaking in its reach
and it was generously funded by the banking and oil fortunes of
the Mellon-Scaifes of Pittsburgh, the manufacturing wealth of
Lynde and Harry Bradley of Milwaukee, the energy revenues of
the Koch family of Kansas, the chemical fortune of John M. Olin
of New York, the Vicks patent medicine empire of Smith
Richardson of North Carolina, and the brewing fortune of the
Coors family of Colorado. Over two decades, the plan unfolded
with huge success.

Now that the courts are dominated by right-wing judges, the
extremists in Congress want the "Class Action Fairness Act" to
require all class-action suits to be heard by "their" judges,
not by state court judges who are often elected and therefore
less likely to espouse extreme legal theories.

Though no one likes to mention it, there's also a simple
electoral goal behind The Class Action Fairness Act. The
Democratic Party has three identifiable sources of major
funding: organized labor, Hollywood, and plaintiffs' lawyers
who handle most of the nation's class-action lawsuits.
Derailing class actions would add substantially to the
Republicans' financial advantage at election time.

The original plan to bend the courts to corporate/ideological
purposes was hatched in 1971 by a southern lawyer named Lewis
F. Powell, Jr., who drafted a document called "Confidential
Memorandum: Attack on the American Free Enterprise System."[2]
The U.S. Chamber of Commerce circulated the Powell memo to all
its members.

Powell argued in 1971 that the U.S. economic system was under
sustained attack and might not survive if its critics were
allowed to continue unopposed. He identified four areas where
he thought corporations and the rich needed to fight back
aggressively and regain control: higher education, the media,
Congress, and the courts. Two months after circulating his
memo, Powell was appointed to the U.S. Supreme Court by Richard
Nixon.

Ultimately the Chamber of Commerce decided not to lead the
charge that Powell tried to incite. But when others read the
Powell memo they ignited a right-wing revolution.[3] Adolph
Coors -- the beer magnate -- acknowledged that the Powell
manifesto convinced him to put the first $250,000 into what
would become the Heritage Foundation, an important think-tank
for extremist views to this day. Modeled on the Heritage
Foundation, we now have the Manhattan Institute, the Cato
Institute, Citizens for a Sound Economy, and dozens of other
think tanks that crank out right-wing propaganda, policy
proposals, books, magazines, reports, and attacks on the
nation's liberal heritage.

Their basic message is rather simple: a Libertarian devotion to
individual rights (and denial that a "common good" even exists)
mixed with worship of a mythical "free market" which opposes
regulation of any kind -- except regulation that helps
transnational corporations achieve global dominance.

Veteran journalist Jerry M. Landay has described the 30-year
effort to transform the U.S.:

"The house that so-called New Conservatism built has operated
on the principle that 'ideas have consequences.' The principal
'ideas' they marketed were individual gain over public good,
deregulation, big tax cuts, and privatization. For two decades,
since the installation of Ronald Reagan in 1980, the radical
right has run a tightly coordinated campaign to seal its hold
on the organs of power, ranging from the highest law courts to
the largest corporations, from the White House to Capitol Hill,
from television tubes to editorial pages, and across college
campuses.

"They have constructed a well-paid activist apparatus of idea
merchants and marketeers -- scholars, writers, journalists,
publishers, and critics -- to sell policies whose intent was to
ratchet wealth upward....

"They shifted the nation rightward; tilted the distribution of
the nation's assets away from the middle class and the poor,
the elderly, and the young; they red-penciled laws and legal
precedents at the heart of American justice. They aimed to
corporatize Medicare and Social Security. They marketed class
values while accusing their opponents of "class warfare." They
loosened or repealed the rights and protections of organized
labor and the poor, voters, and minorities. They slashed the
taxes of corporations and the rich, and rolled back the
economic gains of the rest. They came to dominate or heavily
influence centers of scholarship, law, and politics, education,
and governance -- or put new ones in their place. Their
litigation teams nearly overthrew an elected President. And, to
maintain power, proclaimed Constitutionalists on the right, to
this day, wage a concerted counter-revolution against such
Constitutional guarantees as free speech and separation of
church and state....

"This has amounted to the greatest organized power grab in
American political history. Astonishingly, it goes largely
unreported on television, radio, and most newspapers...."[4]

By the time Ronald Reagan came to power in 1980, the right wing
was intent on taking over the courts. As the Washington Post
observed, "...selection of conservative judges was a
cornerstone of the Reagan administration."[5] In 1991 the Post
noted that George Bush the Elder "is cementing Ronald Reagan's
conservative transformation of the federal courts in the
biggest turnover of federal judges since the New Deal of
Franklin Roosevelt...."[5]

When Bill Clinton appointed moderate judges -- 60% of them
women and people of color -- the Senate Judiciary Committee
under the control of extremist Orrin Hatch simply refused to
schedule confirmation hearings, thus barring many Clinton
appointees from ever taking office. This perfectly-legal
maneuver created a raft of opportunities for ideological
judicial appointments by Bush the Lesser. Those appointments
are now in the works.

Not surprisingly, corporations have formed a special lobby
group called the Committee for Justice to raise millions of
dollars to strongarm Congress on behalf of Mr. Bush's judicial
picks.[6] The Committee is dominated by lawyers representing
firms like Citigroup, Microsoft and R.J. Reynolds Tobacco, all
of which are facing class-action lawsuits. They, more than
anyone else, understand the importance of installing
right-minded federal judges who can be counted on to render
right-minded decisions in class-action suits.

=================

[1] See Rachel's #732.

[2] Powell's "Confidential Memorandum" can be found at:
http://www.rachel.org/library/getfile.cfm?ID=178

[3] Jerry M. Landay, "The Attack Memo That Changed America,"
available at: http://www.rachel.org/library/getfile.cfm?ID=179

[4] Jerry M. Landay, "The Conservative Cabal That's
Transforming American Law," Washington Monthly (March, 2000).
Available at http://www.rachel.org/library/getfile.cfm?ID=180

[5] Ruth Marcus, "Bush Quietly Fosters Conservative Trend in
Courts," Washington Post Feb. 18, 1991, pg. A1.

[6] Jesse J. Holland and Jonathan D. Salant (Associated Press),
"Lobbyists Tout Bush Judicial Picks," Philadelphia Inquirer
July 5, 2003, pg. unknown.