Politics & Policy

The Trial Lawyers’ Full Employment Act

VAWA and the Paycheck Fairness Act are all about making work for lawyers.

Hey guys, everyone in the Democratic party loves all women with a love that is pure as the driven snow, and none of them have ever done anything in the name of that deep, enduring love that could possibly have been motivated by lobbyists, corporate dollars, deep-pocketed donors, etc. No way could that ever happen.

At least, no way could that ever happen except in the case of the Violence Against Women Act and the Paycheck Fairness Act, both of which won’t help women much but will make life way better for the wealthy trial lawyers who make it rain for the DNC and its candidates.

Let’s start with the wonky stuff, and focus on the Paycheck Fairness Act and the Violence Against Women Act (known as VAWA, rhymes with the name of that gas station). Democrats say Republicans have stalled both pieces of legislation because they hate all women, or something. Obviously the only reason you’d vote against the Violence Against Women Act is because you support violence against women, right?

Well, Democratic fundraising e-mails aside, that’s actually not true. I’ve written about this in detail a few times, but the short version of why it’s okay to oppose VAWA runs thus: First, remember that the bill’s original iteration — back in the Dark Ages of 1994 — was simple, non-controversial, and backed by a bipartisan coalition. When it got reauthorized in 2000 and 2005, it remained reasonably non-controversial. Then Patrick Leahy and the Democrats on the Judiciary Committee got ahold of it and added a few provisions that Republicans found intolerable.

One of those provisions changed how some crimes allegedly committed by non-Indians against Indians on tribal lands would be prosecuted; Republicans argue (convincingly, in my opinion) that this would undermine Americans’ constitutional rights, which are kind of a big deal. But more relevant to this article’s purposes is another element of the legislation, which would make it easier to sue domestic-violence shelters for discrimination. Republicans argue that the provision, intended to prevent discrimination against LGBT individuals, is unnecessary — they cite Democrats’ remarkable absence of evidence on systemic discrimination — and would open cash-strapped shelters to costly lawsuits. For instance, if a single-sex shelter for women didn’t let a gay man stay, it could face a lawsuit.

In other words, the new provision is bad for women and good for trial lawyers. But whatever, the Democrats are for it and the Republicans are against it, so it must save a ton of ladies!

Moving on: The Paycheck Fairness Act, which might as well be called the “Everyone Who Votes Against This Hates Women” Act, has gotten plenty of play from Democrats. They argue that women only make three-quarters of what men do because, sexism! The president gave it a shout-out in the State of the Union address, and it looks like it will be reintroduced in the Senate during this Congress. If you’re a betting man or woman, here’s a good place to put your money: Senate Democrats will reintroduce it, Republicans will filibuster it in the Senate, and Democrats will say that Republicans are going to break out their flux capacitors and send everyone in the entire country back to the 1950s. The language they use in fundraising e-mails will probably be a bit more vivid.

So why on earth do Republicans want women to make only 77 cents for every dollar men make? A few things:

First, the decidedly-not-right-leaning Washington Post says that that data point is bunk and that a more realistic figure is about $0.95 on the dollar. Much, much, much ink has been spilt on the existence or nonexistence of the wage gap, but the most important thing to know is that it’s certainly not settled science, and that there isn’t enough evidence of the existence of a problem to warrant a dramatic overhaul of national labor laws. But that hasn’t stopped the Democrats.

The Paycheck Fairness Act basically makes it much easier for employees to sue their employers over wage discrimination. For example, it would put the burden of proof on employers to show that a difference in salary between a man and a woman was based on “business necessity.” And if the plaintiff could demonstrate that an “alternative employment practice” existed that would rectify the perceived injustice, and it wasn’t put in place, the business could face penalties. James Sherk of the Heritage Foundation described that as “an incredibly high standard” when I spoke with him about the legislation in June, and the Washington Post editorial board cited it as a reason they opposed the legislation.

Another way the bill would be a boon to trial attorneys: It eliminates the current $300,000 cap on punitive damages and makes class-action suits opt-out rather than opt-in — which means that potential class sizes could be enormous, as Sherk told me back in June when this legislation failed. The cost of fighting this kind of lawsuits and insuring against them would probably be mammoth — not exactly the kind of burden you want to put on businesses in a recession.

That is, it’s not the kind of burden you want to put on businesses unless you’re a member of the trial-lawyer lobby or you get lots of money from it. And, no news here, Democrats get tons of from trial lawyers. As NR’s Andrew Stiles reported in June (for the Washington Free Beacon), trial lawyers gave more than $230 million to federal candidates and committees. Three-quarters of that went to Democrats. Data from the Center for Responsive Politics shows that some of the Paycheck Fairness Act’s most vocal proponents, including Representatives Rosa DeLauro and Jan Schakowsky and Senator Kirsten Gillibrand, have gotten especially substantial windfalls from the trial-law industry.

One of the top donors to Schakowsky’s campaign committee was the American Association for Justice, also known as the Association of Trial Lawyers of America. Schakowsky called the Senate vote against the Paycheck Fairness Act “another chapter on the war on women.” Indeed. The Orwellianly named American Association for Justice is also one of Rosa DeLauro’s top donors. And her third-biggest donor, Koskoff, Koskoff, and Bieder, has been called one of Connecticut’s best plaintiff’s law firms.

Gillibrand, who leapt to her feet when the president brought up the Paycheck Fairness Act during the State of the Union address, certainly had a lot to be excited about. Lawyers and law firms are the industry that gives her the most support (more than $4 million between 2007 and 2012). Her top two donors are both law firms. One, Boies, Schiller & Flexner, is headed by David Boies, a rock star of the trial law industry. If you were getting that kind of support from trial lawyers, you’d probably jump up and down about the Paycheck Fairness Act, too.

Of course, Democrats win either way by pushing this legislation — either they realize all their legislative goals and do a big favor to their allies in the trial-lawyer lobby, or Republicans block their efforts and give them endless fodder for campaign commercials and fundraising letters. Ho-hum, nothing new here.

— Betsy Woodruff is a William F. Buckley Fellow at the National Review Institute.

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