COMMENTARY:

The Real Goal of "Tort Reform"

In some ways it can be called a law to end all laws. Federal judge A. Wallace Tashima spoke recently at a conference in Los Angeles and was quoted in the A.P. as saying,"The war on terrorism threatens to destroy the very values of a democratic society governed by the rule of law." He was referring to "the Patriot Act," an insult to the Bill of Rights. For indeed, with not many worlds left to conquer, the Bush Administration has turned its sights on one of the last remaining pillars of democracy--the right to sue in civil court. Waving the banner of tort reform, what is sought is the obliteration of the last line of defense that stands between the people and absolute statism. What's left may look like law, but it will be law without remedies.

First, it is necessary to assess this administration's attitude towards law as revealed in the record of the past four years. Starting with the strange effort of James Baker to argue before the US Supreme Court that the vote counting in Florida must be stopped in order to protect his client's rights to due process as enshrined in the 14th Amendment to the U.S. Constitution. For pure irony, this was an amendment ratified in 1868 for the purpose of protecting freedmen from the abrogation of their rights by the Confederate (now Bush) states. Even a cursory examination of the Bush record of obfuscation, secrecy and duplicity will reveal the extent to which they have flaunted established laws, regulations, rulings and precedents in an arrogation of power hardly made note of in the complacent mainstream press.

The Supreme Court of the land finally resolved the disputed election of 2000 in Bush's favor, of course, in a ruling they cautioned should never be used as a precedent. In effect, it made Bush a victim of a voting system that was purposely rigged to produce ambiguous and disputable results. Bush and Republicans cast as victims is a recurring theme calculated with Machiavellian efficiency to mask their relentless attack on democracy.

Fresh from losing the popular vote despite unprecedented voter intimidation and spoilage of democratic votes, Bush proceeded to staff his cabinet with secretaries primarily plucked from the industries and pressure groups they were bound by oath to regulate. The regulations passed under previous administrations have been systematically undermined by "findings" --interpretations that contradict and reverse the clear intent of Congress. Contrived consent decrees were another useful tool to allow polluters impunity. A more detailed account is contained in a book by Johns Hopkins professor Matthew Crenson, chair of the political science department. The title is Downsizing Democracy: How America Sidelined its Citizens and Privatized its Public. His co-author is Benjamin Ginsberg.

This administration has been singularly successful in bypassing established protocols and constitutional mandates, from waging war without a clear declaration by Congress (including lying to Congress to coerce a "war powers" resolution); to treating the UN as a foil for imperial designs; to abandoning the Geneva Conventions as (in the words of White House counsel Alberto Gonzales, "quaint" restraints on Presidential power); to renouncing treaties and shunning international protocols such as the Kyoto Climate agreement, the landmine treaty, the International Criminal Court and the ABM treaty.

With the three branches of government now firmly controlled by a single philosophy, there is no evident check on the use and abuse of the Presidency to carry out an agenda that will return the Republic to a 19th century mindset. In fact, there may be no precedent for this usurpation of power and unabashed determination to mold America into a model that can only be described as fascist in political form. If the Republican-controlled Congress is able to change its own long-standing rules of procedure, and enable an up-or-down vote on the floor of the Senate by simple majority (thus eliminating the filibuster as a device to thwart the worst ravages of majority rule); we are likely to have several appointments to the Supreme Court in the next four years that will move it even further to the right. For those that see majority rule as not such a bad thing, it should be remembered that 50% of the Senators come from states that together comprise less than 18% of the population of the US.

The ends have always justified the means in this administration, and faith has trumped facts. It is, of course, possible that the majority of the American people would subscribe to the Bush philosophy. I'm doubtful that our public school system knows how to teach about this age-old but important debate. Laws and courts can also be seen as "quaint" when ends are justified by faith. If a far-right agenda becomes implanted, Geneva Conventions become optional and the Press is seen by the government as a servant to be tolerated and manipulated and not as a guardian of liberty.

As laws, treaties, regulations, and our constitution are brutalized, circumvented or ignored, the Presidency will assume so much power that the other branches will perform little more than a ceremonial function. Meanwhile, with Congress effectively neutered, internal debate stifled, and dissenters persecuted, the last institution standing in the way of a perfect autocracy will be the plaintiff's bar. If corporations can be shielded from the consequences of their negligence, the people will then have no redress for public or private wrongs.

There may be two self-correcting mechanisms to stop the slide towards one-party rule. The first is the parliamentary rules of the Senate. These rules are not constitutionally guaranteed, but tradition is strong, and history suggests that the"in" party could become the "out" party and be in need of the rules they would gladly change when they are in control. What is done with the rules on filibusters will be the first test of whether minority rights and privileges will be respected in the wake of Republican triumphalism. If we can count on a fair voting system, the threat is always there to prevent tyranny of the majority. However, this is not a sure thing when the two parties control the voting rules, the mechanisms employed and the count itself. Neither will allow third parties realistic access, so they are stuck with themselves in a black widow's embrace. There will be little honor among thieves when the winner takes all.

The other constraint on abandoning law is that corporations like to sue each other. Corporations with revenues of $1 billion or more have an average of 86 lawsuits pending at any given time. Most of this litigation is employment/labor disputes, contract disputes and intellectual property cases. They hate it when the public gangs up on them, but they love suing each other and are quite aggressive. Citigroup has reserves of over $7 billion for litigation expense and that is just for defense; one wonders what their "offense" budget is. The big deal is class action suits--if they can eliminate those, or get them into a safe federal district, they will have eliminated any viable way David can hope to contest with Goliath.

The idea that the President is all-powerful in his role as commander-in-chief during a time of war makes civilian law subordinate to martial law. The suspension of constitutional guarantees in favor of war tribunals is beginning to worry constitutional scholars and, of course, some judges who have ruled against the government in several notable cases. Despite these rulings, however, the government seems slow to comply; and, rather than set a precedent for losing a case on principle, they are apt to simply release the prisoner in question to be re-patriated to his country of origin. The recent reluctance of the Pentagon (specifically, Rumsfeld) to agree to have its budget subordinate to a new Intelligence "Czar" makes one wonder if there has been a palace coup, since the President is publicly on record supporting a new central directorship or "super" agency over all intelligence.

Under the past four years of Bush misrule, the enforcement of civil rights violations has declined dramatically. This is not due to any fewer claims being filed. Of course, the same thing is true of the EPA and other agencies. If the government will not enforce laws it finds inconvenient, how will they be forced to do so, especially if the courts are deferential to the expression of presidential privilege? One could say that at least we get a chance every four years to shift the balance through the vote. However, until we have clear evidence that the voting system is turning out a relatively honest product, this solution may be more myth than reality.

A free press should be a safeguard, but public disclosure of criminal activity by our government is not a given, and with the mainstream press beholden to corporate interests themselves, the depth of their coverage is always suspect. With all the usual guarantees of justice compromised, we may have to simply throw ourselves on the mercy of the Republicans and hope that there is still a trace of genetic material left from a point of evolution when democratic and egalitarian principles were still a part of growing up in America.

Another area where law has been endangered is in the trade agreements such as NAFTA, GATT, FTAA and the WTO. The proceedings of the WTO are super-national and, in many already-decided cases has been proven to have a veto power over progressive laws that might be declared in restraint of trade by a definition that ignores any social justice, environmental, and humanitarian considerations. It is the international component of the "race to the bottom," otherwise known as "free trade." All of the apparent setbacks to human rights over the past four years, the capturing of the citizen as consumers ruled by the corporatists, could have been reversed on Nov. 2; but, it does appear that the election solidified the perception that the man is more important than the law, faith is superior to fact, and fantasy is preferable to reality. The 2004 election can be seen, at least in part, as a rallying around the Judeo-Christian mythology that will trust in a savior to rise above a system that does not itself provide a path to salvation.

Someone who acts outside history, law, and precedent is thus viewed as the only hope of redemption from our own sordid history. This may, indeed, be a rational logic of sorts in a system that provides only a choice of the lesser evil rather than the greater good. So it is in a spectrum of choices so far to the right that a man of no particular virtue or talent looks like a real choice. It may be the price we pay for stability over the untidiness of grassroots democracy.

For 230 years the "republicans" have given in to the idea of democracy only reluctantly and by calculation. They do not really want democracy, and the voting franchise continues to be a threat. How is it that Republicans are not trying to verify the vote in the hundreds of precincts that have anomalies? Do they not want to guarantee the integrity of this precious pillar of democracy? Their silence speaks volumes. God forbid the count in Ohio turns the other way.

To be rational in 21st century America is to be insane. How else to understand the reports of progress in Iraq as the body counts rise and thousands of enemy bodies disappear in Fallujah as if they didn't exist? How to justify that we don't count civilian casualties because we don't target civilians? After Abu Ghraib, how can we understand the superiority of our culture over the peoples of the hapless countries we invade? What are we to make of the realization that our President could be arrested if he sets foot in Canada on unofficial business, because he is a suspected war criminal under Canadian law? The devolution of the law to "might makes right" is already having a profound effect on other dictatorships around the world who feel enabled by the convenient ploy of calling every despicable act part of the "war on terror."

Extra-judicial tribunals and tort "reform" are part of the unified effort to deny due process and effective remedies to presumed enemies of the ruling class. If the Patriot Act is renewed and expanded, and if "caps" on damage awards are installed in every state in order to be attractive to business, we have virtually eliminated the value of law. If damage awards beyond direct compensation for injury are limited to $250,000, consider this outcome when a victim "wins": 40% of the award is paid in taxes, leaving $150,000; and then your attorney gets 30% of $250,000, or $75,000, leaving the victim with $75,000 to, perhaps, apportion over the 60 or so remaining years of a severely handicapped child who was victimized by a medical error. Is this the kind of justice we must tolerate in order to preserve the system? Is this the kind of Republican paradise we intend to export to rest of the world in the form of liberation?