Strange Bedfellow

The Litigation Lover

Why hasn’t Clinton learned to hate the law?

President Clinton has spent $10 million on legal fees; has been forced to answer repellent, invasive questions under oath; has had every private embarrassment announced to the world in the guise of “court documents”; and has watched helplessly as his closest friends and aides have been barbecued and bankrupted by hostile lawyers. Anyone who had been stretched on this legal rack for so long would do anything to prevent the next guy from being similarly tortured.

So it’s not surprising that the Clinton administration just announced its opposition to the renewal of the independent counsel statute. The administration believes that the president and his top advisers should not be subjected to the kind of endless, borderless, remorseless investigation that Kenneth Starr has inflicted on Clinton. And indeed, they should not be.

Yet Clinton and his aides have said not one word about the endless, borderless, remorseless lawsuits that afflict everyone else. Clinton has learned a selfish lesson from Flytrap: I, the president, should not have to suffer through a barrage of litigation and investigation. But he has missed the real lesson: No one should have to endure what he endured. The president’s defenders portray Flytrap as a parable of how the law, misapplied, can undermine the president. In fact, it is a parable of how the law, properly applied, can undermine anyone.

“The case, with its invasive, irrelevant discovery, with its incredible legal fees, with the way it drew in innocent bystanders and ruined their lives, is exactly typical of the American legal system,” says Walter Olson, a Manhattan Institute scholar and author of The Excuse Factory.

Even so, the president is not advocating any legal reform larger than protecting himself. He continues to act as though lawsuits are government by other means. From the beginning of his first term, Clinton has favored policies that made litigation more invasive and expanded the right to sue. And he still seems to believe that litigation is a substitute for regulation and legislation.

There is, as has been widely noted, one pungent irony about Clinton’s policies. In 1994, he supported the Violence Against Women Act at the behest of women’s groups. The act permits much more expansive discovery into the sexual history of defendants in sexual harassment and sex crimes cases. Judges and legal scholars warned that the new rules would be intrusive and prejudicial, but Clinton signed the bill into law anyway. Four years later, he found himself a victim of the sort of voyeuristic, nasty snooping that the law authorizes.

In most other matters, too, Clinton has protected or expanded the right to sue and the power of the plaintiff to make life miserable for defendants. He has presided over the enlargement of the Americans with Disabilities Act. Last summer, his Department of Justice successfully petitioned the Supreme Court to designate asymptomatic HIV-infected people as a protected class under the ADA. In 1995, he and congressional Democrats defeated a House Republican bill to penalize plaintiffs for frivolous lawsuits and to impose “loser pays” rules. Also that year, the president delighted plaintiffs’ lawyers by vetoing a bill to limit punitive damages in product liability cases.

Since the scandal, the administration has been no less enthusiastic about lawsuits. The administration continues to push a “patient’s bill of rights” that would guarantee the right to sue your HMO. Clinton is also trying to use lawsuits to make public policy. In his State of the Union address, he announced that the Department of Justice would sue cigarette companies to recover Medicare costs of smokers, a backdoor way to have the courts increase federal tobacco revenues without going through Congress. And the administration is lending tacit support to cities suing gun manufacturers, a backdoor way to have the courts make gun policy without going through Congress.

The result of this reliance on lawsuits by Clinton, his presidential predecessors, and Congress is what Brookings Institution scholar Jonathan Rauch calls “microgovernment.” Politicians are abdicating their duty to write well-defined laws, leaving it to judges to make the rules case-by-case. Judges end up deciding how bosses treat their employees, how corporations treat their customers, etc. Microgovernment makes easy populist politics. The president and Congress can take credit for giving people “rights,” then leave the actual work of making sense of those rights to the courts. The patient’s bill of rights, for example, would deliver a poll-tested victory to Clinton and Congress. Then judges would absorb the responsibility of handling the lawsuits spawned by the new rights.

Clinton’s support for better living through litigation is also based on interest group politics. Trial lawyers courted him and his party with tons of money. Women’s groups, civil rights groups, and Naderites–all avid believers in litigation–constitute a huge chunk of Clinton’s base. The president may also be a true believer in government by lawsuit. He came of age when the civil rights movement and the Naderites were using the courts to challenge unjust state governments and arrogant corporations. His intentions are honorable: Corporations shouldn’t discriminate in hiring, HMOs shouldn’t deny care to patients who need it. But he never asks whether lawsuits and rights are the only way to prevent these bad things.

Microgovernment does not seem to cost anything–no new budget lines, no new bureaucracies–but of course it does. Financially, it shuffles expenses from government to someone else, usually the person being sued. Politically, it’s anti-democratic, replacing congressional and executive branch decision-making. “It is a kind of three-card monte,” says Olson. “You shift the responsibility to the branch of government that citizens can’t do anything about.” And it makes an already litigious society more so, afflicting more and more people with onerous discovery, bottomless legal expenses, and grotesque but legal invasions of privacy. (The United States, Olson notes, has far laxer discovery rules than any other developed nation.)

The GOP is reluctant to challenge the law’s tyranny. During Flytrap, many Republicans conveniently abandoned their objections to wide-ranging sex harassment litigation, endorsing broad discovery in order to nail Clinton. But even those who insist that the legal system is out of control are afraid to challenge it: Every time they have done so, Clinton and the Democrats have trounced them, depicting them (with some justice) as shills for big corporations that don’t want to be accountable to employees and customers.

Can anything change Clinton’s mind? After all, he has suffered through legal hell once and has emerged unaffected. Maybe, just maybe, if he were sued again …