When California Gov. Gavin Newsom called for gun legislation modeled on the Texas abortion law, S.B. 8, allowing individuals to sue people who put illegal guns on the streets, many progressive pundits saw Newsom’s move as little more than a clever attempt at baiting the Supreme Court to reconsider the implications of its decision to let the Texas law stand. Many of the pundits take issue with the use of “bounties” in enforcing the Texas law. (Abortion providers, as well as anyone suspected of “aiding or abetting” an abortion, can be sued for $10,000.)
But we shouldn’t conflate the odiousness of the Texas law with its mechanism of enforcement. The Texas abortion law is a misogynist attack on women’s rights—the misogyny is the problem. Indeed, there are many circumstances in which private enforcement is needed because police and regulators routinely fail. Newsom’s bill is hardly the first law to use private lawsuits to enforce policy: Progressives promote “bounties” in many other areas of the law. And in several other areas, such as anti-discrimination law, wage theft, and corporate corruption laws, which are underenforced by prosecutors, progressive lawmakers should use this enforcement mechanism more often.
Allowing private lawsuits to enforce laws has a long history. In the ‘90s, progressives cheered when the Violence Against Women Act created a private right of action to sue sexual assault perpetrators in federal court when state governments refused to prosecute rapists (and cursed when the Supreme Court took it away on federalism grounds). Anti-discrimination law, in general, has been built on private lawsuits. Labor law has failed workers partly because there is no right of workers to privately sue their employers who violate the law. Just last year, House Democrats attempted to remedy this situation by passing the PRO Act, which included a private right to sue.
Private suits have also been instrumental in holding abusive cops accountable. A large part of Black Lives Matters protests in 2020 was over the failure of prosecutors across the country to indict police who kill or brutalize citizens. Qualified immunity and the general reluctance of law enforcement to indict one of their own has meant that private lawsuits, brought by the victims or their families, have consistently offered some degree of accountability. These lawsuits are based on the only remaining shards of Reconstruction-era civil rights laws passed in the 1870s, which gave newly freed slaves a chance to take legal action in federal court when state officials refused to enforce the law fairly.
The danger with liberals decrying private “bounties” is that it feeds a decadeslong core goal of the conservative legal movement to discredit and restrict private lawsuits. Even in cases where Congress specifically gives individuals the right to sue over illegal activity, the Supreme Court has moved to close the courtroom door by blocking class-action lawsuits and denying many plaintiffs the right to sue at all. Just this past June, in the case TransUnion v. Ramirez, the court declared that Congress could not give plaintiffs the statutory right to sue over false information in their credit reports if the court itself determines they have not suffered concrete harm. As conservative Justice Brett Kavanaugh wrote for the majority in condemning private enforcement of the law:
The choice of how to prioritize and how aggressively to pursue legal actions against defendants who violate the law falls within the discretion of the Executive Branch, not within the purview of private plaintiffs.
Taken to the extreme (and this court looks to go to the extreme), this statement of executive power could nullify most enacted laws, especially those with diffuse harms, where any president or local prosecutor refuses to enforce those laws. Legislators would be largely powerless to create alternative enforcement mechanisms through private litigation.
This trend is particularly disruptive to attempts at holding economic elites accountable for financial or tax crimes. Even when the executive branch wants to enforce the law, Congress or state legislatures influenced by corporate interests can and have crippled the executive branch’s ability by reducing funding to enforcement agencies. Notably, after the GOP took control of Congress in 2010, Republicans cut the IRS staff by a third. The U.S. Department of Labor has fewer investigators than it did in 1948, when the workforce was one-seventh the size it is today. And state agencies have far fewer staff, with many states having no investigators for most areas of corporate crime.
Many corporations have taken advantage of this lack of enforcement power. As the gig economy grows, it has become even harder to determine who is the right employer and, therefore, who can be held accountable when employees are harmed, straining what limited government resources are left. “Business lobbyists want everything to only be enforceable by state agencies because they know that the agencies just do not have the ability to fight them with the same kind of financial firepower,” said Caitlin Vega, who led legislative advocacy efforts for the California Labor Federation for 16 years.
It’s worth emphasizing that “bounties” come in at least three major varieties.
The first category, also known as moiety acts, gives compensation to those providing information to prosecutors but leaves control of litigation in the hands of the government. For example, the IRS is mandated to pay between 15 and 30 percent of any tax penalties assessed to informants, although only in cases where the disputed amount is more than $2 million owed to the IRS. In the wake of insider trading scandals in the 1980s, the Securities and Exchange Commission now awards bounties to those providing information leading to the successful prosecution of an insider trader. The SEC paid out $500 million in awards in fiscal year 2021 alone. Whistleblower awards can range from 10 to 30 percent of the money collected when the monetary sanctions exceed $1 million.
The second category are direct individual lawsuits by victims of crimes seeking financial compensation. Whether brought by victims of unsafe products, wage theft, racial discrimination, or sexual harassment, such lawsuits have been the main lever of legal enforcement in multiple areas of the law. Highlighting the importance of private litigation, the top 10 private settlements in various employment-related workplace class actions totaled $1.58 billion in 2020, compared with just $241 million for all government-initiated workplace-enforcement litigation. Beyond compensating victims, many of these lawsuits award punitive damages to deter future criminal activity, which the Supreme Court has required judicial review of because of their public, quasi–criminal enforcement aspect.
The last category of private enforcement allows individuals to sue lawbreakers in the name of the state itself, also called qui tam laws, where individuals winning lawsuits receive a portion of civil fines specified in law as a reward. Whistleblower laws and the False Claims Acts have been some of the most successful laws giving private individuals the ability to help punish billions of dollars’ worth of fraud against the government. States have their own versions of the False Claims Act and the D.C. City Council, following New York state, has extended private lawsuits to punish illegal tax fraud as well as contractor fraud.
One of the more innovative versions of a qui tam law is California’s Private Attorneys General Act, which allows workers to sue their employers for violations of state labor laws and collect a share of civil fines assessed in court. The state collected more than $88 million from lawbreaking corporations in 2019, thanks to workers using PAGA and sharing in the fines assessed. Multiple states are now looking to emulate California’s PAGA.
One argument often made against expanding qui tam–style enforcement measures is that individuals should only be able to sue for the direct harm they suffer, not to substitute themselves for prosecutors.
The problem with this is that victims of corporate harm are increasingly losing their own ability to get a day in court due to mandatory arbitration clauses imposed on employees and consumers, which cover 70 percent of workplaces in California. Because of Supreme Court decisions from two decades ago, states can’t bar such mandatory arbitration clauses, so workers in particular increasingly find any legal complaint shunted into private, employer-chosen arbitration—where employees inevitably lose. In California, “Due to widespread use of forced arbitration, especially in the lowest wage, highest risk jobs,” Caitlin Vega notes, “PAGA has become the only option for many workers.” It is illegal for employers to block employees from using PAGA under state law, but employers have appealed to the U.S. Supreme Court, which will hear arguments this spring about the merits of the law.
As direct victims of corporate abuses increasingly lose their rights because of forced mandatory arbitration, states giving third parties status to sue may be the only option available to hold companies accountable. Opening the door to more third-party lawsuits does not have to mean emulating the reckless approach of the Texas abortion law. As Siri Nelson, executive director of the National Whistleblowers Center, argues, qui tam third-party lawsuits like the False Claims Act have a tradition of strong government oversight to avoid any hint of vigilantism.
“The tradition of qui tam is bringing the case on behalf of the government but also bringing it to the government. The government then assesses and decides whether it wants to join the case,” Nelson said. Only “when the government decides it does not want to join the case can the relator proceed independently.”
Courts take that government decision seriously and will often dismiss a case the government deems unworthy, a similar process that PAGA lawsuits face in California courts.
Notably, the Texas abortion law lacks any government agency review of lawsuits precisely because of its Rube Goldberg attempt to avoid judicial review. Progressives should aggressively challenge the Texas abortion law on its substance—and for its lack of that basic review process—but should not fall into the political trap of disparaging private enforcement mechanisms. Far better to double down on their own “bounty” policies in ways that discomfit conservatives, such as the Illinois representative who proposed a $10,000 award for those suing men getting women pregnant against their will. This law is a far better political rejoinder to conservative attempts to restrict women’s freedom.