Commentary: A shock to the system

By PETER ROFF, UPI National Political Analyst  |  Sept. 24, 2002 at 11:19 AM
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WASHINGTON, Sept. 23 (UPI) -- For many years, campaign finance reform along the lines suggested by Sens. John McCain, R-Ariz., Russ Feingold, D-Wis, and Reps. Chris Shays, R-Conn., and Marty Meehan, D-Mass., was held out as a sort of Holy Grail, the ultimate solution to the corruptive influence of money in politics.

As many politicos will acknowledge in their more candid moments, that was spin. The inauguration of new contribution limits, newly instituted bans on certain kinds of advertising by certain types or organizations and the outright prohibition of certain kinds of contributions and spending are of dubious constitutionality.

The new law is being challenged in the federal courts by the left and the right and is likely to be eviscerated by the courts, creating what reform proponents will no doubt call "loopholes" that will have to be addressed by more legislation.

For some, the new laws already do not go far enough. Last week Maryland state Sen. Chris Van Hollen, the Democrat challenging multi-year incumbent Republican U.S. Rep Connie Morella in the state's eighth congressional district, came out forcefully for full public financing of federal campaigns. He is not alone.

For all their righteous bluster, however, the advocates of more limits have sent the cause of reform spinning off in the wrong direction.

Former House Speaker New Gingrich, R-Ga., was fond of telling audiences that Americans do not regard the 55 mph rule on the federal highways as a limit; rather they see it, rightly or wrongly, as "a threshold of opportunity." Campaign finance limitations behave in much the same way.

The traditional American approach to such "reforms" is to immediately set about finding ways to get around them for we generally regard, as the U.S. Supreme Court held in Buckley v. Valeo, that our rights to engage in political activity and speech are guaranteed by the first amendment to the Constitution.

There is a more sensible approach: greater disclosure of as to the origins of this supposedly corruptive money and the uses to which it is put.

As the incumbent politicians of both parties have rigged the system to favor themselves and their interests -- something the new McCain-Feingold law reinforces rather than reforms -- it is unlikely to come to this.

Let us propose, for example, that one meaningful reform might constitute a requirement that congressional committees, when they publish the list of witnesses giving testimony on legislative proposals, be required to identify which committee members had received campaign contributions from the witnesses appearing before them and the amounts.

On Wednesday, Sept. 28, the Senate Judiciary Committee intends to hold a hearing on proposals to reform the nation's asbestos litigation system -- currently a very expensive proposition.

According to some estimates, there are more than 300,000 asbestos claims pending in state and federal courts. At least 58 firms, including industrial giants Johns-Manville and W. R. Grace, have been forced into bankruptcy as a result of asbestos claims against them.

If the cash awards were going to people who were actually sick with asbestosis it would be easier to justify these outcomes; but as several studies have demonstrated they are not.

Between 2000 and 2001, close to 15,000 cases were filed on the issue, the overwhelming majority brought on behalf of people who are not currently sick.

According to the Los Angeles Times, the number of people expected to file asbestos-related injury claims could "eventually reach 2.5 million ... the economic toll of asbestos could run as high as $200 billion, higher than the estimates for all Superfund sites combined, Hurricane Andrew of the Sept. 11 terrorist attacks."

Allegations of mass screenings to find potential victims are almost pandemic. These screenings, run out of traveling mobile homes, are of questionable medical value and potentially conducted in violation of federal regulations. They also produce legal actions that are, as one judge said "brought on behalf of individuals who are asymptomatic as to an asbestos-related illness and may not suffer any symptoms in the future."

It appears to be increasingly the norm to bundled a few people who are genuinely sick into a mass tort action along with many more who "screened" positive but are not currently sick and may never get sick.

At the end of the day, there is significantly less money from judgments and settlements available to people who are ill while people who are not currently ill get cash they may not rightly deserve. The attorneys, meanwhile, collect millions if not billions in legal fees.

The Senate Judiciary Committee is looking onto way to reform the system so that the people who are really sick get relief and companies are not pushed into bankruptcy because of tangential connections to the asbestos industry. Even Chief Justice William Rehnquist has called on several occasions for Congress to address this issue.

As the Los Angeles Times explained, there is a lot of money at stake.

One of the witnesses schedule to appear at Wednesday's hearing is Fred Baron, past president of the American Trial lawyers' Association and a man who has made a lot of money representing asbestos claimants.

On the one hand his experience and expertise on the issue could prove valuable to the committee. He has intimate knowledge of the issue and may be able to suggest useful reforms that would improve the system and could get to the heart of the matter quickly.

On the other hand, the value of Baron's advice would be far different if he was seen as an interested party rather than an honest broker.

According to a Sept. 2002 piece in the Financial Times, "Fred Baron has 10,000 asbestos clients -- probably more than any other lawyer in the USA -- and he has a simple message for those lobbying Washington's lawmakers to make it harder to bring his cases to court. 'There will be a jihad (holy war.),' he says. 'We will fight them with everything we've got.'"

Baron and his wife Lisa contributed, between 1997 and 2002, a total of $15,000 to the campaign committee's of Senate Judiciary Committee members.

Sens. Joseph Biden, D-Del., Maria Cantwell, D-Wash., Diane Feinstein, D-Calif., and Chuck Schumer, D-N.Y., each received $2,000. Sen. Dick Durbin, D-Ill., received $1,000; Sen. Orrin Hatch, the ranking Republican on the committee, got $500; and Sen. John Edwards, D-N.C., who is himself a multi-millionaire trial lawyer, got $6,000 for his campaign committee and another $110,000 in contributions to political organizations under his control.

The other members of the committee received nothing from Baron or his wife.

These contributions were in no way illegal. But they are nevertheless relevant. In the current climate, in which members of the House and Senate put on a hair shirt in order to declaim the influence of money in politics, the campaign contribution records of witnesses giving testimony to congressional committees must be considered when evaluating the so-called "appearance of impropriety."

A convincing case can be made that the public has a right to now this information and that the members of congressional committees hearing testimony have an obligation to make such information public.

The Baron case is but one example of something likely repeated many times; where big campaign contributors are asked to give testimony in front of those to whom, as McCain and Feingold would no doubt put it, they have already purchased access. The appearance of the heads of the big tobacco companies before a House Committee several years ago is another example.

Being able to support candidates through financial contributions is a precious right. In the ongoing debate over how best to eliminate the appearance of corruption in the system, it would be a step in the right direction if congressional committees put this information forward in advance of any testimony so that whatever advice the witness had to share could be viewed in the full light of day.

This is not a requirement for individuals to disclose; rather this burden would be placed squarely on the shoulders of elected officials to be fully candid. If the donations are proper, then there is little to fear.

It is unlikely, however, that any of them will go for the idea -- it would probably be opposed on a bipartisan basis. That in itself is probably symbolic of the effect such a disclosure requirement would have on the system. It would be a real shock to it.

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