Why Did Obama Vote for a Bad Tort Reform Bill?

When some people think of tort reform, they think it's about lawyers' fees. It's about much more than that, including maintaining an injured person's access to the courts.

Barack Obama told Chris Wallace on Fox News last Sunday:

I would point out, though, for example, that when I voted for a tort reform measure that was fiercely opposed by the trial lawyers, I got attacked pretty hard from the left.

In 2005, Barack Obama voted for CAFA, the Class Action Fairness Act of 2005. Who voted against it? Hillary Clinton, Dick Durbin, Ted Kennedy, Pat Leahy, Joe Biden, Barbara Boxer and other progressive Democrats. Even Harry Reid. Who voted with Obama? Republicans, from Trent Lott to Lindsay Graham to Jeff Sessions and Democrats Joe Lieberman and Diane Feinstein (big surprise.)

What CAFA was about:

The Class Action Fairness Act would move most class action lawsuits, including civil rights, worker protection, product liability, and consumer fraud cases from state courts into the federal court system.


Many mass tort cases – lawsuits which combine the cases of number of victims suffering similar physical damage from the same defective product or negligent practice – would also be moved to federal court. The bill also sets up a number of procedural rules for class action cases, restricting settlements in which a member of the class of people filing the suit must pay his or her lawyer more than the class member received under the settlement and banning settlements that would provide more money to some class members based on their geographic proximity to the court would also be banned. Finally, the Act calls for judicial scrutiny of so-called “coupon settlements,” in which plaintiffs receive only low-value coupons in compensation for their injuries.

Why CAFA was a bad bill:

While moving lawsuits from state to federal courts may seem harmless enough, in effect it will prevent many middle-class Americans injured by defective products, manipulated by deceptive marketing, or discriminated against by unfair employment practices from ever being able to hold corporate wrongdoers accountable. As a result, the threat of lawsuits will be less of a deterrent to corporations that engage in deceptive or discriminatory practices or seek to cut corners by skimping on product safety. Moving state cases to the federal courts is particularly harmful because it is state judges, not the federal judiciary, that are most familiar with the state consumer protection laws under which wrongdoers are sued. As a result, federal judges usually won’t certify cases based on state law, which effectively prevents even the most legitimate cases from ever being heard if they are forced into federal court.

That means ordinary citizens have lost an important means of getting recourse to the laws their democratically-elected state legislators passed. To make matters worse, the federal courts are increasingly stacked with judges hostile to consumer and workers’ rights. What’s more, the federal courts are already overburdened, struggling to cope in a timely manner with the caseload already before them. Further clogging the federal system with state cases may slow down everyone’s access to justice.

Here's what a group of State Attorney Generals had to say about it (AGs from California, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Oklahoma, Oregon, Vermont and West Virginia):

Equal access to the American system of justice is a foundation of our democracy. S.5 would effect a sweeping reordering of our nation’s system of justice that will disenfranchise
individual citizens from obtaining redress for harm, and thereby impede efforts against egregious corporate wrongdoing.”

The National Conference of State Legislatures didn't like it either. Here's Why:

“S. 5 undermines our system of federalism, disrespects our state court system, and clearly preempts carefully crafted state judicial processes which have been in place for decades regarding the treatment of class action lawsuits… State laws in the areas of consumer protection and antitrust which were passed to protect the citizens of a particular state against fraudulent or illegal activities will almost never be heard in state courts. Ironically, state courts, whose sole purpose is to interpret state laws, will be bypassed and the federal judiciary will be asked to render judgment in these cases.”

What should be done instead of this bill:

The American system of civil justice provides a crucial means for ordinary middle-class citizens to hold powerful corporations and government agencies responsible for their actions. Congress should work to strengthen and preserve this system of accountability rather than seeking to limit corporate liability, restrict victims’ compensation, and obstruct access to the courthouse, as this bill and other legislation pending in 2006 seeks to do.
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    Obama's hidden bundled (5.00 / 1) (#1)
    by AnninCA on Fri May 09, 2008 at 02:14:22 AM EST
    supporters are the lawyers, no?

    I believe I've got this right.

    What I thnk I'm arriving at is allowing the hidden.  I've been comfortable with Hillary because her connections are transparent and public.

    He's made me very nervous with his secrets.

    Hmm (5.00 / 1) (#2)
    by Steve M on Fri May 09, 2008 at 02:16:40 AM EST
    The quality of justice really is better in the federal courts.  As a former class action lawyer myself, I never really saw CAFA as terrible public policy, although it certainly didn't help my business interests.

    That said, this is really a vote about whose side you're on.  None of these people are philosopher-kings; the trial lawyers have their lobby and the National Association of Manufactures has its lobby.  Being on the wrong side of this vote is troubling simply because it makes you wonder why anyone would want to curry favor with those groups on the GOP side.

    i can see both sides (4.00 / 1) (#11)
    by boredmpa on Fri May 09, 2008 at 02:45:05 AM EST
    but i'm living in a state (CA) that frequently has to get waivers and permission from the fed for certain things.  That's problematic when dealing with citizen safety issues and standards regulation.

    Slightly offtopic, but I'm fine with federal minimum standards on many things, provided they give leeway to states to go beyond.  I'm not okay with regulations that limit states from protecting citizens.  In addition, it requires a lot more work, timing, local information, and persistence for either group to influence public policy in 50 states.  That keeps regulation from loosening too quickly, which in the case of safety issues is probably a good thing (because impacts and org behaviors develop over time).

    So though I know this is a lot different, I tend to view it in a similar way as I view Banking standards/regs at the federal/state level.  


    Yin-Yang (5.00 / 1) (#12)
    by AnninCA on Fri May 09, 2008 at 02:49:14 AM EST

    The worst?  Feds busting CA medical marijuana users.

    Good grief.  Do they not understand basic PR?  You aren't going to get bonus points for taking people down who are in terminal life situations.


    heh, as i've mentioned before (5.00 / 1) (#15)
    by boredmpa on Fri May 09, 2008 at 03:01:33 AM EST
    i live in SF.  and i'm in a neighborhood where i smell pot all the time walking to and fro the store (current tracking average is 30%).  Sigh, I think my neighbors are smoking again, which means I have to close the window.

    Now, I have to be paranoid about drug tests with SFO or the GAO or whatever city/state/federal job I apply to because I need to breathe the air in the city.  I really don't want to be the guy with the correct polygraph and positive drug test trying to sue to keep/get my job.

    And I don't even want to know how amusing it would be to apply for SFO with a medical marijuana card.  I know they use FBI for some security analysis, but do they just toss out the drug part?  Or does some fed agent have to sign off on it....and what about other city operations that work with the feds on issues.  Messy.


    CAFA Is Not Bad Law (none / 0) (#64)
    by Michael Masinter on Fri May 09, 2008 at 09:45:57 AM EST
    Steve M is correct.  CAFA is not a bad law, and a vote for it is not a betrayal of progressive principles.  When I started practicing law in the early 1970s, almost all progressive litigation took place in federal courts, and progressive lawyers learned the minutiae of standing and subject matter jurisdiction to find ways to get cases into federal courts.  What has changed since then is the makeup of the judges who comprise the federal bench; they are increasingly conservative.  If we had just come off a thirty year run of democratic appointments to the federal courts, consumers would have pushed CAFA and business groups would have fought it tooth and nail.

    In short, the objections to CAFA are instrumental; progressives have not become born again federalists out of a principled commitment to states' rights; we just don't like the current crop of federal judges. Give us back Brennan, Marshall, Elbert Tuttle et al and we'd swoon for CAFA.


    Ok..on that note (5.00 / 1) (#3)
    by Stellaaa on Fri May 09, 2008 at 02:18:04 AM EST
    The alleged progressives would maybe have taken time to think if the MSM loves this guy so much, there must be a reason.  

    And your point? (5.00 / 1) (#5)
    by Stellaaa on Fri May 09, 2008 at 02:23:25 AM EST

    Right. It's where he decides to diverge from (5.00 / 3) (#8)
    by andrys on Fri May 09, 2008 at 02:28:29 AM EST
    ...from the usual.  So, we have

    . Making consumer class action suits harder to do
     to prevent 'abuse' of companies that way
    . No 30% cap on consumer credit card interest
    . Voting for Cheney's energy bill

    and other interesting unusual votes.


    Obama's "interesting votes" (5.00 / 2) (#51)
    by noholib on Fri May 09, 2008 at 08:55:35 AM EST
    Too bad the information in Andrys' post and the really informative linked one (Gonzales Feb 2008) hasn't been more widely disseminated.  I have contended all along that on domestic policy, Obama is NOT more "progressive" or liberal than Clinton.  Here's more proof.  And don't forget his remarks about health insurance coverage and social security.  

    He tends to vote in unusual and mysterious ways (5.00 / 2) (#6)
    by andrys on Fri May 09, 2008 at 02:24:26 AM EST
    I include this paragraph in a blog entry I made that includes info on other odd votes.

    "When Hillary Clinton voted against the CAFA (Class Action Fairness Act - fairness to businesses against class action suits), Obama joined Republicans in voting FOR it.  Democrats against this particular loss of protection for consumers included Clinton, Kennedy, Biden, Feingold, and Kerry.  This is the kind of Change we can expect to see more of.

    When Clinton voted FOR capping of consumer credit interest rates at 30%, Obama voted AGAINST it.  As a result, Mike Williams of the Bond Market Association, which represents Wall Street firms, said that "Some assumed he would just go along with consumer advocates, but he voted with us on several points.  He understood the issue.  He wasn't closed-minded.  A lot of people found that very refreshing."

    It's all explained on Counterpunch.com (5.00 / 2) (#30)
    by suzieg on Fri May 09, 2008 at 06:45:47 AM EST
    Will post as soon as I find it - counterpunch.com had a 2part article addressing this very same subject this week and boils it down to his lobbyist friends from Wall Street and why they are backing him.

    Counterpunch.com - May 5 and May 6 (5.00 / 2) (#32)
    by suzieg on Fri May 09, 2008 at 06:56:06 AM EST
    May 5, 2008
    A CounterPunch Special Investigation
    How Barack Obama Fronted for the Most Vicious Predators on Wall Street
    Obama's Money Cartel

    Here's a passage from the article:

    This legislation, which dramatically impaired labor rights, consumer rights and civil rights, involved five years of pressure from 100 corporations, 475 lobbyists, tens of millions of corporate dollars buying influence in our government, and the active participation of the Wall Street firms now funding the Obama campaign. "The Civil Justice Reform Group, a business alliance comprising general counsels from Fortune 100 firms, was instrumental in drafting the class-action bill", says Public Citizen.

    One of the hardest working registered lobbyists to push this corporate giveaway was the law firm Mayer-Brown, hired by the leading business lobby group, the U.S. Chamber of Commerce. According to the Center for Responsive Politics, the Chamber of Commerce spent $16 million in just 2003, lobbying the government on various business issues, including class action reform.


    Good article, and here's this (5.00 / 1) (#37)
    by andrys on Fri May 09, 2008 at 07:42:22 AM EST
    Thanks for that.

    In Chris Hodges' Hope for Corporate America there's this:

    He worked tirelessly in the Senate in 2005 to pass a class-action "reform" bill that was part of a large lobbying effort by financial firms, which make up Obama's second-biggest single bloc of donors.

    The law, with the Orwellian title the Class Action Fairness Act (CAFA), would effectively shut down state courts as a venue to hear most class-action lawsuits. This has long been a cherished goal of large corporations as well as the Bush administration. It effectively denies redress in many of the courts where these cases have a chance of defying powerful corporate challenges. It moves these cases into corporate-friendly federal courts dominated by Republican judges.

    Even Hillary Clinton voted against this naked effort to allow corporations to carry out flagrant discrimination, consumer fraud and wage-and-hour violations.

    Obama's Money Cartel (none / 0) (#69)
    by jawbone on Fri May 09, 2008 at 10:56:19 AM EST
    CAFA (5.00 / 2) (#7)
    by boredmpa on Fri May 09, 2008 at 02:27:54 AM EST
    Sigh, I can't believe he supported CAFA.  I'm not a lawyer, and even I know it's bad.  And it's amusing too (from a state's rights and business perspective) to see so many republicans vote for it.  States compete for business, and though there are things that require federal minimum standards (to make sure such competition is reasonable)....this is clearly federal control which and would undercut state authority to protect its citizens.

    OT, but I've been staring at an anti-lawyer/reform board outside my apartment for the past two years (and it's a street level billboard where a gas station is so i have to look at it when i'm walking).  Drives me bonkers.

    Believe it, and more ... (5.00 / 4) (#10)
    by andrys on Fri May 09, 2008 at 02:36:26 AM EST
    Some links that will help us believe what Obama will do,
    from my data set at my reference-blog.

    Obama gives Hope to corporations - Truthdig, Apr 28, 2008

    Barack Obama Inc.:  The birth of a Washington machine - (Harpers, Oct 26, 2006 issue)

    Obama Campaign press release - response to Harper's article - Oct. 23, 2006

    A Bit More on Barack - Harper's added detail for Obama campaign - Oct. 26, 2006.  This includes Obama's explanation that We can do better than burdening businesses with cases of class-action abuse."


    I take exception (5.00 / 1) (#28)
    by BernieO on Fri May 09, 2008 at 06:27:14 AM EST
    to Truthdig's comment that Clinton's welfare refore was disastrous. Six million people moved out of poverty during the Clinton years due largely to policies he implemented. The balanced budget helped us have a vibrant economy which created new jobs. He increased the earned income tax credit for working poor, as well as access to health care (a lot of people stayed on welfare just to qualify for Medicaid), job training , etc. This was not a disaster, it was a real start to breaking the cycle of poverty.
    The disaster is that since Bush took office 5 million people have fallen back into poverty. Bush has been intent in being the anti-Clinton. I am sure that by the time he leaves office he will have sent AT LEAST 6 million people back into poverty. Guess he has been a success in meeting his goals.

    And (5.00 / 2) (#34)
    by Ga6thDem on Fri May 09, 2008 at 07:14:29 AM EST
    Obama seems hell bent on being the anti Clinton too. I don't see the economy really improving much under him should he make it to the WH either.

    Thanks for these, (none / 0) (#53)
    by desert dawg on Fri May 09, 2008 at 09:01:57 AM EST
    and I'll be checking out your blog.

    There you go (5.00 / 4) (#14)
    by Steve M on Fri May 09, 2008 at 02:58:37 AM EST
    Not even an attempt to defend the vote.  Not even a shred of an explanation.  Just "oooo, he's better than Hillary!"

    This is how it is with the mindless Obama supporters at MyDD.  Bring up the fact that he voted for anything bad, like Cheney's energy bill, and the response will always be "it's not as bad as Hillary voting for the war!"  It's like you can just hear the brain cells withering away from disuse.

    Why would I defend the CAFA vote? (2.75 / 4) (#21)
    by Alec82 on Fri May 09, 2008 at 03:56:22 AM EST
    I am not a fanatical Obamamaniac or Clintonista.  I'll no more defend CAFA than I will defend the Iraq war vote.  Of course, I also won't equate them.  That, I suspect, is the underlying message of your post: voting for any bill sponsored by the GOP is functionally equivalent.  Clearly, it isn't.  If the Dems had voted en mass to support the "Marriage" Amendment I would have abandoned the party in a heartbeat. As it is they're lucky I wasn't voting in 1996.

     I resent your tarring of Obama's anti-war supporters over the Iraq issue, particularly since many of them plugged their noses and voted for Senator Kerry in 2004.  Where was that broad base of support Clinton enjoys now then? Oh right, reelecting President Bush and voting in a dozen or so anti-gay marriage amendments.  Now those supporters cry the principle of economic populism? Because their pocketbooks are empty after four more years of crony capitalism? After tossing an entire generation to the wolves with their preferred candidate's spending and policy priorities?

     Look, me, I have voted straight Dem over the last eight years (yeah yeah I know the young Dems are to be decried as youthful misguided activists...unless, of course, they voted for Bill in '92, then they're war heroes). Even if Senator Clinton uses absurd tactics to win the nomination I will still vote for her.  Any one who abandons the Democratic Party or pledges to vote McCain deserves his presidency.  Unfortunately, the sober electorate doesn't.  

     So you have a choice, in the primary and beyond.  You can grow up and support the Democratic nominee or you can doom an entire generation to an absurd McCain presidency to satisfy your own selfish desire to have your woman/man be the nominee. That goes for Senator Clinton's supporters and Senator Obama's supporters alike, and I for one have never even contemplated the idea of voting for McCain.  It isn't even that I believe Senator McCain would inevitably be disastrous; he might not be.  But his policies, over the longer term, would.  We shouldn't permit that to happen when we have two good candidates (one admittedly better in my view, one better in your view).  



    It's real simple (5.00 / 5) (#45)
    by Steve M on Fri May 09, 2008 at 08:40:37 AM EST
    This post is about Obama's vote on CAFA.  Comments that discuss that vote are helpful.  Comments that attempt to change the subject by saying "look, over there, a shiny object!" are not.

    Many of Obama's supporters seem to be congenitally incapable of acknowledging that he has ever cast a bad vote.  It gets a little tiresome when you can't ever have a discussion of Obama's record because the reaction is "who cares, Hillary voted for the war!"


    A couple of things from the non-lawyer (5.00 / 2) (#26)
    by Florida Resident on Fri May 09, 2008 at 05:43:22 AM EST
    consumer point of view.  Federal Legislation should be for things that affect national issues or where a state's protection comes short.  If you use it as the current administration has to try to limit states from offering additional protection or liberties to their citizens then that is wrong. eg suing CA because their regulations exceeded the EPA.  
    Secondly, CAFA is a complicated issue but intertwined in its many provisions is the never-ending effort by big-business to limit a person's ability to bring to court any case.   An example of that effort in prior acts is the kind of time limits that have been placed on medical malpractice cases.

    BTW in my opinion Obama's bundled supporters are not the lawyers but Big Corporations.

    Every major SCOTUS case (none / 0) (#44)
    by Kathy on Fri May 09, 2008 at 08:38:40 AM EST
    has dealt, in one way or another, with states' rights.  The Civil War was not an anomaly.  States' rights vs federal rights are the cornerstone of our Constitution.  I think with votes like the one Jeralyn and others reference, Obama is sending a message on where he stands regarding this issue.

    You know, it's funny, because I was thinking last night about Lincoln's republican party, and going through the timeline in my head trying to figure out when being a republican stopped meaning that you were a progressive, pro-federal govt voter.  McKinley through Taft?  Harding through Hoover?  TR must've had something to do with it.

    Stellaaa also made an interesting point about this last night, that she felt that Bush/Cheney had forever changed the republican party in real ways-that the stranglehold the extremist had on it had forced an implosion.  Does this mean they're going to become the party of the working class?  Can we take their example as foreshadowing for the dem party?

    I think Obama supporters, with their anti-Bubba rhetoric, are pushing the dem party in a direction that will re-define it in ways that make it more old school republican: pro-big business, pro-federal government, anti-little people.  I suppose you could argue that they are becoming Whigs (in the true sense of advocating congress's power over the executive branch, as opposed to Bush's Jacksonian "democracy"; why else would you want a weak president?)


    Will Obama be the Dems' Blair? (none / 0) (#70)
    by jawbone on Fri May 09, 2008 at 11:00:22 AM EST
    Blair branded Labour as "New Labour," and NewLab became in some ways more authoritarian than the Conservatives and took Britain into Iraq.

    The party is not doing very well right now in Britain, came in third in the most recent elections.

    Will Obama bring us "New Dems"?


    I don't support CAFA... (none / 0) (#20)
    by Alec82 on Fri May 09, 2008 at 03:29:28 AM EST
    ...but having taken Complex Litigation, I can't really say I care too much.  Yes, class actions can be good for consumers.  I would even argue they are necessary to prevent some abuses.  At the same time, I attended the Ford "rollover" class action fairness hearing, and let me tell you, if that is a "win" for consumers, we need to reevaluate what constitutes a win.

     I am not particularly happy with the way some plaintiff's attorneys have used the class action device, as well as the way that defendants use it as a means of settling mass tort claims.  It is an imperfect method of litigation, to be sure.  

     That being said, federalization of these cases is ill advised and absurd.  I won't defend this vote any more than I would defend any other ill-advised vote.  

     At the same time, I would point out that the following Clinton supporters (progressive icons?) voted for CAFA:


     Feinstein (a Clinton supporter until recently)

     Probably others, those were the easiest to narrow down.    

     The credit card interest rate meme is overblown.  Thirty-percent caps mean zilch in real life (how many people have credit cards with interest rates above 30%? Raise your hands...).  Additionally, it does not explain Senator Clinton's past support for the bankruptcy reform measure in 2001 (she was not present for the vote in '05 because of Bill's surgery, as another poster pointed out to me, and she has not indicated how she would have voted).  To me the bankruptcy bill casts doubt on the working class meme more than any other, particularly in light of her position on health care.  Medical costs can sink a person into bankruptcy pretty easily.  I don't know what those voters have to gain from pro-creditor bankruptcy "reform."

     Assuming he was in the senate at the time, I suspect Senator Edwards would have been against both measures.  

    It Wasn't Just A Cap On Credit Card Rates (5.00 / 4) (#25)
    by MO Blue on Fri May 09, 2008 at 05:36:58 AM EST
    Statement of Purpose: To limit the amount of interest that can be charged on any extension of credit to 30 percent.

    It would also apply predatory lenders.

    Clinton voted for all the amendments that tried to include exceptions to decrease the effects of the bankruptcy amendment and put out a very strong statement about her opposition to the bill.


    Uh (none / 0) (#61)
    by Steve M on Fri May 09, 2008 at 09:23:28 AM EST
    The argument that it's relevant that some of Clinton's ENDORSERS supported CAFA is just jaw-droppingly stupid.  Really.  "Look, the OTHER Senator from New York voted for it!"

    I thought you were going to make a point about CAFA's coupon settlement provision, but for some reason you didn't go there.  It's certainly true that there are abuses in the class-action arena (oh, the stories I could tell), but as with all tort reform measures, anecdotal evidence is basically used as an excuse to pass laws that make sure corporations don't get sued as often.

    The corporate lobbyists who write Republican tort-reform legislation are not, I'm convinced, altruistically interested in improving the fairness of the civil justice system.

    As for the 30% cap on credit card rates, I think you're being a little myopic.  No, the sort of people who read blogs probably aren't very likely to have 30% interest rates.  Do you know who is?  The sort of people who Democrats are supposed to be looking out for.

    The credit card issue is interesting because it features Obama himself making the same sort of ridiculous excuse usually offered only by the more credulous of his blog supporters.  "I voted against the 30 percent cap because... I felt the cap should be lower!"  I'll never forget the look on John Edwards' face when Obama came out with that whopper.


    This may be deleted but... (none / 0) (#75)
    by CST on Fri May 09, 2008 at 12:11:34 PM EST
    Cap vs. Energy Bill
    To me, Obama's response to the cap on credit cards is similar to Hillary's on the energy bill.  Neither thought it went far enough.  They are both right, and both of those bills went farther than any previous bills. The important thing is that they are both on the right side of those issues, they just have different methods of getting there.  In the case of the credit-card interest cap Hillary compromised and Obama compromised on the energy bill (which was the best energy bill to come out during Bush's entire administration).

    Progressive icons? (none / 0) (#68)
    by gyrfalcon on Fri May 09, 2008 at 10:48:32 AM EST
    Seriously?  Schumer, Feinstein, and especially Bayh and Lincoln?  That was sarcasm, right?  Right?

    read more closely (none / 0) (#71)
    by Jeralyn on Fri May 09, 2008 at 11:38:41 AM EST
    feinstein voted with Obama on the bill.

    Why Did Obama Support CAFA? (none / 0) (#62)
    by BDB on Fri May 09, 2008 at 09:27:49 AM EST
    this thread is about (none / 0) (#66)
    by Jeralyn on Fri May 09, 2008 at 10:19:37 AM EST
    CAFA and Obama's voting for it. It is not an open thread. Off topic comments are being deleted.

    Wow! (none / 0) (#67)
    by gyrfalcon on Fri May 09, 2008 at 10:44:04 AM EST
    A whopping big huge enormous 5 percent difference!