Even as they lamented anemic economic growth six years into a so-called recovery, not one candidate during the first two rounds of presidential debates has said a word about the lawsuit industry’s striking success in lobbying the Obama administration for steady expansions of civil liability or the considerable toll such liability takes on investment, innovation and competitiveness.

In defense of the candidates, the media have paid scant attention to many waiting-to-be-told stories about how the trial lawyers, represented primarily by the American Association for Justice (AAJ), have been granted extraordinary access to and influence throughout the executive branch for nearly seven years.


Even when an FDA official grudgingly admitted to a House subcommittee last year that AAJ lobbyists were the only ones to meet directly with the agency before it proposed a dramatic rule-change, most media ignored the story.  The rule change sidesteps Congress to overturn a Supreme Court decision by altering longstanding authority for warning labels on generic drugs.  It will generate a new tsunami of class action lawsuits that could indirectly cost consumers an estimated $4 billion annually.

So, believing that trial lawyer influence warrants greater scrutiny and that those who would be president should better understand the problems posed by such influence, my organization, the American Tort Reform Association, teamed up with our civil justice reform allies at the U.S. Chamber’s Institute for Legal Reform to do some research and reporting of our own. And we’ve just issued The Trial Lawyer Underground: Covertly Lobbying the Executive Branch, a report detailing many instances when lawsuit industry lobbyists have quietly sought and often secured administration support for their liability-expanding agenda.

For example, even before President Obama was sworn in, the trial lawyer underground had sent his transition team a detailed request to limit the so-called preemption of often lucrative state tort lawsuits by various federal health and safety regulations.  And just four months later, the president issued an Executive Memorandum to agency heads cautioning them against asserting or even discussing the preemptive effect of regulations, unless an existing regulation expressly included preemption language.  The memo also ordered agencies to review such regulations and reconsider any preemption language.

Among the most disconcerting of such reconsiderations and deletions of preemption language were two in 2009 by the National Highway Transportation Safety Administration.  One regulatory change invited lay judges and juries in state courts to second-guess federal experts’ automobile roof-crush standards designed, among other things, to minimize rollover accidents.  Another did the same for mandated seatbelt counts calculated to maximize passenger safety.    

Other early gifts to the plaintiffs’ bar included final passage of the president’s signature health insurance reform law with no provisions to discourage the meritless lawsuits that help drive more than $480 billion of wasteful defensive medicine each year, according to healthcare economics firm BioScience Valuation.  Physician and former chairman of the Democratic National Committee Howard Dean candidly explained: “The people who wrote [the law] did not want to take on the trial lawyers.”

More recently, AAJ lobbyists have failed with Congress and so have turned to the executive branch in seeking bans on litigation-reducing arbitration clauses in various consumer and employment contracts.  Last year the White House issued the Fair Pay and Safe Workplaces Executive Order prohibiting federal contractors from using arbitration to resolve employment disputes.  And earlier this year, with much input from AAJ and allied groups, the Consumer Financial Protection Bureau issued on cue an anti-arbitration study, laying the ground work for a just announced rulemaking that is expected to restrict or ban altogether arbitration clauses in consumer financial contracts.

Similarly predictable was the White House’s veto threat when in mid-September the House passed a bill that would impose mandatory sanctions on those who bring frivolous lawsuits – not that Senate Democrats would ever let the legislation come to an up-or-down vote there.    

Our “Underground” report digs much deeper than we can here, unearthing a still-simmering plan for a billion-dollar trial-lawyer tax break, a wealthy asbestos lawyer’s successful request for the withdrawal of a rule requiring reimbursements for federal healthcare expenditures from his colleagues and their clients, agencies willfully turning a deaf ear to judges’ pleas for regulatory clarifications that could help ease clogged court dockets, and other costly, litigation-promoting machinations.

Visitor logs indicate that AAJ lobbyists and retained counsel have visited the White House at least 80 times during the Obama administration.  And certainly trial lawyers have as much right as anyone else to petition their government.  But Congress and the media should more vigilantly keep tabs on such extraordinary influence, and the next president, regardless of party, should plainly understand that wins for the lawsuit industry typically result in losses for jobseekers, consumers, patients and taxpayers.

Joyce is president of the American Tort Reform Association.