First, the good news for tort reform from Election 2006: Republicans picked up enough seats to evenly split the Oklahoma state senate, raising hopes for long-stalled reform legislation in that state. Republican candidates who favor liability limits won both Ohio Supreme Court seats up for election, ensuring a 5?? 1/2 2 majority for those defending a broad new tort reform law. And in the Florida attorney general's race, Republican tort reform proponent Bill McCollum defeated trial attorney Skip Campbell.
But such scattered, small victories give only faint comfort to those seeking curbs on abusive litigation. Overall, the election was a tort reform disaster. Both houses of Congress went to the Democrats, Republicans lost control of one or both houses of eight state legislatures and Democrats will be evicting Republicans from six governors' mansions.
Most experts believe this sweep will extinguish any possibility of Congressional action on such issues as defusing asbestos litigation or capping medical liability awards. And in several states, rather than advancing additional tort reform legislation, proponents will be fighting to protect laws already passed.
"It was a tough environment for business-friendly candidates in 2006," concedes Larry Akey, spokesman for the Institute for Legal Reform, a U.S. Chamber of Commerce lobbying group.
That tough environment had nothing to do with tort reform or any other business issue. With attention riveted on the war in Iraq, tort reform almost disappeared from campaign rhetoric.
"Any number of issues got swamped by the 800-pound gorilla in the room--the war in Iraq--and did not get the attention they deserve," Akey says.
Where tort reform did come up, it failed to help proponents. The ?? 1/2 Association of Trial Lawyers of America, which poured more than $2.5 million into the elections, points to Iowa's First Congressional District, where Bruce Braley, a plaintiffs' attorney, won an open seat formerly held by a Republican who ran ads criticizing Braley for filing frivolous lawsuits.
Braley will join a Democratic-controlled Congress, with a Democrat chairing the Judiciary Committee. That probably means that legal reform bills the House might have passed in 2006 won't even get a hearing in 2007. On the other side of Capitol Hill, tort reform already was a dead issue. With the exception of the Class Action Fairness Act of 2005, the Senate has blocked all tort reform bills for several years, even with Republicans in control.
"The election puts on ice for two years a lot of agendas reformers were pushing, but it's just a different way of not getting what they wanted," says Walter Olson, senior fellow at The Manhattan Institute, a conservative think tank. "It was a real uphill slog before, and now it's more uphill and more of a slog."
Olson notes tort reform bills the House passed rarely have gotten out of the Senate Judiciary Committee. And those bills that did could not muster the 60 votes needed to block a filibuster.
Olson predicts Democrats may use their new Congressional power to push legislation that would benefit the plaintiffs' bar, such as allowing private causes of action in wage and hour cases.
"Those are issues that are easy to get the labor unions excited about," he says.
While Congress has blocked tort reform on the federal level, state legislatures have been more receptive. So reform advocates are understandably troubled by Democratic gains in state legislatures. Republicans lost control of either the state house or senate in Indiana, Michigan, Minnesota, Oregon, Pennsylvania and Wisconsin. In Iowa and New Hampshire, Democrats took both houses from the GOP.
Carolyn O'Malley, director of public affairs for the American Tort Reform Association, points to Michigan as an example of the damage election 2006 may bring. "Michigan was a model for reform," she says. "But now that the Michigan house has switched to Democratic control, we may see attempts to roll back reform."
In other states where Democrats already held control, they solidified their position. In Colorado, for example, Democrats picked up additional seats in both the House and Senate.
"There has already been a piecemeal approach by the trial bar in Colorado to roll back reform," O'Malley says. "Now they have a path to achieve that."
On the other hand, Democrats lost their dominance in Oklahoma's Senate, and the GOP retained control of the House. So previously unsuccessful reform efforts may yield better results.
And reform advocates are relieved that Ohio voters elected two Republicans to the Supreme Court, easing fears that the state judiciary would overturn tort reforms the state passed in 2005. Pro-reform incumbent judges also won re-election in Alabama and Texas.
"Legal reform advocates were successful in electing a number of liability restraining candidates throughout the country," Akey says.
Advancing The Agenda
Akey casts tort reform as a bipartisan issue and pledges to keep up pressure on Congress to pass asbestos and securities class action litigation bills, patent reforms and curbs on abusive trial bar practices such as excessive discovery.
"We believe legal reform requires bipartisan efforts," he says. "We believe members of Congress will see their constituents want legal reform."
He has evidence to back up that claim. In a poll taken for the Institute for Legal Reform on election day, 85 percent of voters, including 79 percent of those who identified themselves as Democrats, said they think frivolous lawsuits are either a "very serious" or "somewhat serious" problem. That lends hope for 2008, when voters will have another chance to support pro-tort reform candidates.
Until then, reform advocates will look for an issue to unite corporate America. Olson notes that asbestos litigation reform failed when the business community split over trust fund issues, while unified lobbying helped pass CAFA.
"It's not inconceivable that one issue could mobilize the business community again," he says.