Empowered by reelection and a more Republican Congress, President Bush and his White House aides are betting that 2005 will be the year for big strides in the longtime conservative crusade to curb lawsuits and bring to heel trial lawyers who profit at the expense of corporations.
But as Bush heads to Illinois this morning to launch a major campaign to change the nation's laws on medical-malpractice and class-action lawsuits, allies on Capitol Hill and top business groups warn that prospects for change are less favorable than many had assumed after Bush's victory two months ago.
The recently publicized problems of pharmaceutical companies and a handful of GOP dissidents spell trouble for one of the most far-reaching proposals in the Senate -- the same place where Democrats and their trial-lawyer supporters have managed to kill similar measures in recent years, according to business lobbyists and Senate leadership aides.
"There is no question there are firmly entrenched interests who will fight litigation reform every step of the way," said Kristen Silverberg, deputy domestic policy adviser to Bush. "But I do think the climate is changing."
The House has routinely passed legislation limiting lawsuits. But the problematic arithmetic of the Senate -- where backers of Bush's agenda on lawsuits have often shown they can win a majority, but not the 60 votes needed to end debate and push legislation to passage -- sets up an important test of a second-term influence and governing strategy.
The issue of curbing lawsuits has been close to Bush's heart for a decade or more. If all the measures the administration and Senate GOP leaders want were enacted, they would be among the most extensive changes of the nation's legal system -- as well as a dramatic repudiation of the trial lawyers who are a financial pillar of the Democrats.
Yet people on both sides of the issue said in interviews that Bush and Republicans face the stiffest opposition on their most ambitious proposed changes, such as a $250,000 cap on "pain and suffering" awards in malpractice cases.
Other proposals face better prospects, but they will require compromises of the sort that Bush and the GOP last year were unwilling to make to win Democrats.
In this category is a significant revision of laws for class-action lawsuits. A GOP proposal would push more of these cases out of state courts and into the federal system, which defendants typically prefer because historically it has higher thresholds for bringing suits and smaller damage awards. Even though many Democratic senators support this concept, a bill died last year when Senate leaders were unwilling to consider amendments. A proposal to limit lawsuits against asbestos manufacturers, a Bush priority, is stalled over the issue of compensation for victims.
And Republicans do not have a unified front. Sen. Lindsey O. Graham (S.C.) has called Bush's plan for capping malpractice suffering awards among the worst bills facing this Congress, and one that appears to unfairly and unwisely target trial lawyers. "The dirty little secret in Washington is the trial lawyers have a few Republicans in their pocket," a Republican close to Bush said.
Many supporters and opponents agree that the best prospects for enacting legislation rest with the least consequential ideas. The "cheeseburger bill," for instance, aims to prevent obese people from suing the fast-food chains that might have helped make them fat. But only seven such suits have been filed, and none has gone to trial.
Advocates of changing the rules on lawsuits say they believe public opinion is cresting in their favor, as evidenced by moves in numerous state legislatures to limit malpractice damages. But in interviews, several supporters acknowledged to their dismay that the congressional arithmetic may not have changed as much as they had hoped after the November elections. Lisa A. Rickard, president of the U.S. Chamber Institute for Legal Reform, said: "It's more challenging at the federal level in particular, because you are dealing with caps on damages, and that's a tough issue in the Senate."
For the coming several months, the debate promises to be a high-profile battle of anecdotes, with both sides laboring to put a compelling human face on a policy clash in which the main contestants -- trial lawyers on the Democratic side, and HMOs, pharmaceutical companies and other big businesses on the Republican side -- often do not have an easy claim on public sympathy.
Bush will take this battle of anecdotes on the road today with his trip to Madison County, Ill., which the president's allies call one of the nation's "judicial hellholes," because of the number of high-dollar lawsuits filed and won there.