American business wants to know whether, in this day and age:
* A consumer with a load of back bills but a steady job should any longer be allowed to wipe the slate clean through bankruptcy?
* A manufacturer should be held liable for damages from a design flaw he could not have reasonably anticipated when he made his product?
* Price-fixing penalties should continue to be set high as an antitrust deterrent, or should be based on actual damage done?
In these and other areas of consumer law, business groups are on the warpath. They are convinced that the rules of the game are rigged against them; that liberal judges, outdated social compacts, bleeding-heart juries and aggressive plaintiffs' attorneys have joined forces over the years to tip the scales of justice toward the consumer side.
And so now, in the newly friendly environs of Capitol Hill, they are trying to get Congress to apply a more pro-business spin to the procedures and philosophies that undergird consumer law.
They're doing all this in a most unjudicial way: lobbying like mad.
Several broad-based business coalitions have grown up in the past year around these obscure consumer issues. They have organized grass-roots meetings with congressmen, commissioned academic studies, made targeted campaign contributions and sent around prominent lobbyists to buttonhole and schmooze.
No one claims their lobbying techniques are outside the bounds of propriety. What worries some, though, is that an age-old clash of equities between business and consumer interests is moving from one forum (the courts) that is designed to be immune to the persuasions of economic power to another (the Congress) that is not.
Debtors, for example, are hardly in a position to finance a $300,000 study of the bankruptcy system. But creditors can, and did. The study's conclusion (disputed by the consumer side): one-quarter of all personal bankruptcies are taken as a matter of convenience, not need, at a cost to creditors of more than $1 billion annually.
Conducted by the School of Management at Purdue University and paid for by the National Coalition for Bankruptcy Reform, the study has been Exhibit A in the consumer finance industry's case before Congress. It has apparently served the sponsoring coalition well. So far more than 250 House members have signed up to cosponsor a bill that would wipe out consumer debtor protections that have been on the books for 84 years.
"The question you ask yourself is who's running Congress here: the members or the national trade associations," said Rep. Mike Synar (D-Okla.), who sits on the House Judiciary Committeee, a key battleground for many of these issues.
During a recent recess, Synar was invited to a meeting of more than 100 merchants and consumer-finance officials from his district. They inundated him with stories of customers who, they claimed, were using bankruptcy to beat the system.
Similar gripe sessions have been held in the districts of 19 of the 28 members of the committee, all arranged by the coalition, a year-old Washington-based lobbying group made up of consumer-finance firms, banks, retailers, collection agencies and oil company credit card divisions.
The pressure mounted by such business groups can be "excruciating," Synar said. He has not yet signed on as a cosponsor, and the bill is currently bottled up in the Judiciary Committee, where chairman Rep. Peter W. Rodino Jr. (D-N.J.), an industry opponent, has put it on a slow track.
Still, say worried consumer activists, it is hard to hold 250 cosponsors at bay for long.
As with bankruptcy, so with product liability and antitrust--the arguments are remote and often subtle ones, not suited for popularization or sloganeering. Here is a rundown of the issues and some of the lobbying tactics.
Bankruptcy: Nearly a half-million people went bankrupt last year, double the total of two years earlier. Business blames a 1978 law that liberalized the personal bankruptcy code. Consumers say it's the lousy economy.
The business proposal: See to it that any debtor who opts for bankruptcy but has a steady income would have to repay his or her debts over five years. Under laws that have been on the books since 1898, there are disincentives, but no flat prohibition, to keep someone with a steady income from discharging all debts through straight bankrupcy.
The rationale of consumer groups, bankruptcy judges and academicians who support the existing law is that society ought to be willing, after extracting certain penalties, to give a debtor a fresh start. He is of more value that way to himself, his family and society, so the argument goes.
Virtually all the lobbying has been coming from the industry side, with powerful retailers like Sears leading the way. Still, the consumer side has Rodino, and for the moment, the contest is a draw.
Product Liability: Here, the fight is over burdens of proof, admissibility of evidence and other equally arcane, but often critical, procedural questions.
Should post-accident design changes be allowed to be introduced into evidence to show that the original design may have been defective?
Should consumers have to prove in court that an alternative design was technically and practically feasible?
Historically, the answers to such questions have evolved on a case-by-case, state-by-state basis. Consumers says that's the way it ought to be, with judges and juries fashioning the laws to the increasing complexities of technology.
Business claims that what has emerged is a confusing, contradictory patchwork of laws that drives up insurance rates, doesn't encourage product safety and benefits no one except the lawyers.
The are ironies aplenty in this fight. Business is in the uncomfortable position of asking for more, rather than less, regulation. A coalition of manufacturers and wholesalers that calls itself the Product Safety Alliance is pushing for a first-ever uniform national statute.
Consumers, meantime, fear the industry bill would turn back the clock on product saftey and are teaming up with their adversaries of old--the trial lawyers--to try to kill the measure. That has the business side tsk-tsking about an unholy alliance.
Antitrust: Ask any Washington, D.C., coalition-builder which is harder, offense or defense, and the answer will always comes back the same: offense.
The glue that binds most coalitions into effective lobbying forces is the fear of a common oppressor. Bring a collection of interests together, tell them that you are trying to make their circumstances better rather than keep them from getting worse, and the sense of urgency will never be quite as keen. Everyone will tend to opt for a different sort of improvement, and narrow self-interest, the enemy of any effective coalition, will rear its head.
Nowhere is this phenomenon more evident than in the business community's efforts to rewrite price-fixing laws.
The basic business objective had been to reduce the liability of price-fixers to civil damage awards, but for the past year the debate over the bill has been overshadowed by a messy, expensive all-out lobbying war between some corporations that want the bill to apply to pending cases and others that want it to be prospective only.
The self-interests are self-evident. If the bill applies retroactively, a number of major corporations that have lost civil price-fixing cases, led by Mead, Georgia-Pacific, Weyerhaeuser and Milliken, could cut their potential losses by hundreds of millions of dollars. But other corporations, which are either the competitors of the first group or the beneficiaries of the damage awards, denounce retroactivity as a blatant bail-out.
For the past year, the Chamber of Commerce and the Business Roundtable, two champions of the bill, have been trying to mediate the retroactivity issue. After countless meetings and courtroom-style hearings, both decided to remain neutral. Until last month.
Then Sen. Strom Thurmond (R-S.C.), chairman of the Senate Judiciary Committee, reportedly pressured them to support his modified retroactivity amendment. Overnight, and without benefit of their usual internal committee reviews and votes, the two umbrella business groups changed their position.
That, naturally, produced cries of dirty pool from the anti-retroactivity forces, led by International Paper and Burlington. Bitter Mailgrams have been circulcated, and the rift is wider than ever.
Meantime, the Thurmond amendment prevailed in committee, but faces a tough fight on the Senate floor and in the House.
For the beleaguered consumer movement, these internecine business battles are the brightest spot on an otherwise dreary horizon.
"Clearly, business sees this as their best moment ever, and they're trying to take advantage of it," said William Schultz, a lawyer with the Litigation Group, a public interest law center founded by Ralph Nader. "But it surprises me what a difficult time they're having. They're finding out what we knew long ago: it's a lot easier to block legislation than to pass it."
But even with the glitches and frustrations, the business side is prepared to stay the course. There's another adage borrowed from sports that they've discovered: you can't score much if you don't go on offense.