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Jewish World Review Nov. 12, 1999 /3 Kislev, 5760

Michael Barone

Michael Barone
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Money talks, as it should --
'How a company lets its cash talk," read the headline in the New York Times last month. The article tells of the success of Samuel Heyman, chairman of GAF Corp., in lobbying for a bill to change rules for asbestos lawsuits.

The article sets out how much money Heyman, his wife, and GAF's political action committee have contributed to politicians and both parties, and the reader is invited to conclude that this billionaire and his company are purchasing legislation that will benefit them. Money buys legislation, which equals corruption: It is the theme articulated by John McCain in the Senate last month and on the campaign trail; it was the premise of questions asked at the Hanover, N.H., candidates' forum and taken for granted by Al Gore and Bill Bradley in their responses; it is the mantra of countless editorial writers and of Elizabeth Drew in her book The Corruption of American Politics.

But is it true? Careful readers of the Times's "cash talks" story can find plenty of support for another conclusion: "Strong arguments talk."

For 25 years, asbestos lawsuits have transferred billions of dollars from companies that once manufactured asbestos (it was banned in the 1970s) to workers exposed to asbestos and their lawyers. Asbestos causes sickness in some but by no means all workers many years after exposure. But most claimants who have recovered money are not sick and may never be, while those who are sick must often wait years for claims to be settled.

The biggest winners in the current system are a handful of trial lawyers who take contingent fees of up to 40 percent and have made literally billions of dollars.

Heyman's proposal, altered somewhat by a proposed House compromise, would stop nonsick plaintiffs from getting any money, while setting up an administrative system to determine which plaintiffs are sick and to offer them quick settlements based on previous recoveries.

The statute of limitations would be tolled, which means that nonsick plaintiffs could recover whenever signs of sickness appear. Sick plaintiffs would get more money more quickly, while companies would be less likely to go bankrupt; 15 asbestos firms are bankrupt now, and the largest pays only 10 cents on the dollar on asbestos claims. The two groups who lose, according to Christopher Edley, a former Clinton White House aide and Harvard Law professor who has worked on the legislation, would be nonsick plaintiffs who might get some (usually small) settlements under the current system and the trial lawyers who have been taking huge contingent fees.

These are strong arguments, strong enough to win bipartisan support for the bill, from Democratic Sens. Charles Schumer and Robert Torricelli as well as House Judiciary Chairman Henry Hyde and Senate Majority Leader Trent Lott. You would expect Hyde and Lott to support such a law, but for Schumer and, especially, Torricelli, it goes against political interest: Torricelli chairs the Senate Democrats' campaign committee, and Democrats depend heavily on trial lawyer money. One can only conclude that Schumer and Torricelli were convinced by strong arguments, which was certainly the case for Democrat Edley, who was writing about cases long before Heyman's bill was proposed.

When McCain charged that the current campaign finance system was corrupt, Republican Mitch McConnell challenged him to name one senator who had voted corruptly. Certainly no one who knows the issues and the senators involved would have cited this case.

And not just this case. When a government affects the economy, when it sets rules that channel vast sums of capital, people in the market economy are going to try to affect government. They will contribute to candidates and exercise their First Amendment right to "petition the government for a redress of grievances," i.e., lobby.

Both things will continue to be true even if one of McCain's various campaign finance bills is passed. There is no prospect for full public financing of campaigns (Gore says he's for it, but he has never really pushed for it); one reason is that it leaves no way to prevent frivolous candidates from receiving public funds.

(Look at the zoo of candidates competing for the Reform Party's $13 million pot of federal money.)

Reformers speak of campaign advertisements as if they were a form of pollution and try to suppress issue ads as if no one but a candidate (or newspaper editorialist) had a First Amendment right to comment on politicians' fitness for office. And to communicate political ideas in a country of 270 million people you have to spend money.

The idea that the general public interest goes unrepresented is nonsense. There is no single public interest; reasonable people can and do disagree about every issue, from asbestos lawsuits to zoo deacquisitions.

This country is rich with voluntary associations ready to represent almost anyone on anything; any interest without representation can quickly get some. Even when the deck seems stacked, as it has for trial lawyers on asbestos regulation, there will be a Samuel Heyman with, as Edley puts it, "the moxie to act on his convictions." Money talks, as it always will in a free society.

But in America, and on Capitol Hill, strong arguments can talk louder, and do.

JWR contributor Michael Barone is a columnist at U.S. News & World Report and the author of the biennialAlmanac of American Politics. Send your comments to him by clicking here.


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06/22/99: Trying the lawyers
06/07/99: Facts on the ground

©1999, Michael Barone