Resident Fellow Ted Frank
With Senator Barack Obama, D-IL, all but clinching the Democratic nomination, he begins the pivot to the center for the general election to better position himself to independents.
While the senator's rhetoric certainly speaks of post-partisan unity, his record lacks the supporting substance. This is well demonstrated by a recent appearance on Fox News. When Chris Wallace challenged him to name an example of reaching across party lines, Obama could only name his February 2005 vote for the Class Action Fairness Act (CAFA), which passed the Senate 72-26. But if this is his example of bipartisan support, it leaves much to be desired.
CAFA came about because trial lawyers had been abusing the class action mechanism by filing dozens of class actions in different states seeking to certify a nationwide class. In a game of "heads I win, tails don't count," if the trial lawyers lost in one jurisdiction, they would merely proceed with an identical lawsuit in a more favorable jurisdiction until they found a judge receptive enough to sign on to the most meritless of lawsuits.
As his party's likely standard-bearer, Obama could help break the partisan logjam that is blocking needed reform.
As a consequence, the notoriously plaintiff-friendly Madison County, Illinois, ended up with hundreds of lawsuits seeking to dictate consumer law nationwide, and defendants were forced into countless extortionate settlements.
CAFA simply undid this upside-down federalism by establishing that lawsuits alleging a nationwide class belonged in a single federal court rather than the most favorable magnet jurisdiction in state court that trial lawyers could find.
This is entirely sensible good-government legislation, which is why the bill passed by such a large margin. But the bill passed in the form it did in spite of Obama's efforts, not because of them.
While CAFA was under consideration, Senators Ted Kennedy, D-MA, Mark Pryor, D-AR and Dianne Feinstein, D-CA, proposed amendments that would have eviscerated CAFA; Senator Feinstein's proposed amendment likely ran afoul of constitutional due process requirements set forth by the Supreme Court in a 7-1 decision in 1985. Each amendment failed by large bipartisan majorities, supported only by Democrats; each time, Obama voted with the trial lawyer lobby.
These votes were not outliers. Obama also voted to filibuster medical malpractice reform and to kill an asbestos reform bill in 2006, each time providing a critical vote for a minority of senators that blocked tort reforms from achieving a three-fifths supermajority. That is hardly reaching across the aisle, much less showing a willingness to flout a Democratic special interest.
I do not mean to be unfair to Obama. The other Democratic presidential candidates in the Senate, Hillary Clinton, D-NY, and Joe Biden, D-DE, voted against CAFA. Her husband vetoed two bipartisan tort reforms when he was in the Oval Office, one of which the Congress overrode.
And Obama did take some heat on the Internet from those who reflexively support the litigation lobby when he made himself the 72nd vote in favor of CAFA, as well as in December when he sneered at presidential candidate John Edwards's record as a multi-millionaire trial lawyer.
But if Obama wishes to demonstrate himself a bipartisan leader willing to cross the trial lawyer lobby for the good of the nation as a whole, he has plenty of opportunity to show that his 2005 vote wasn't just an empty gesture with nothing on the line.
A 2007 report issued by Sen. Charles Schumer, D-NY, along with New York Mayor Michael Bloomberg, noted that America's competitiveness in the financial markets is endangered by the litigation environment, and calls for securities litigation reform, but the Senate has taken no action on it.
As his party's likely standard-bearer, Obama could help break the partisan logjam that is blocking needed reform. Obama could also join the Republicans calling for investigation into the practices of securities class action lawyers in ripping off investors through kickbacks, investigations that are blocked by the Democratic leadership.
Mrs. Clinton accused Obama of being all words and no action. By affirmatively supporting tort reform, Obama could simultaneously demonstrate that Mrs. Clinton was wrong, prove his bipartisan bona fides--and best of all, do something that will actually help the American economy.
Ted Frank is a resident fellow at AEI and the director of the AEI Legal Center for the Public Interest.