October 2010 Archives

Pollsters such as Larry Sabato and Stuart Rothenberg, guys who have great track records, are predicting a GOP House majority next year. But what kind of majority will it be? I've already posted the numerous reasons why the GOP and Tea Party activists should avoid a "tort reform" agenda and instead protect the right enumerated in the 7th Amendment and state constitutions of a jury trial for civil suits.

A GOP lobbyist in Washington, a 35-year-long veteran of politics, has some words of warning for new GOP Congressmen, especially those representing themselves as Tea Partiers. He campaigned for Ronald Reagan, held senior positions in the Reagan Administration and on Capitol Hill, and was a "Bush 43" nominee iced by Senate Democrats. He's walked in the corridors of power in Washington, financially contributed to Congressmen at closed-door fundraisers and successfully lobbied for legislation in Republican and Democratic-led Congresses. That lobbyist-veteran is... ME (read my bio).

My warning comes in the form of a few questions for the newcomers:

1. Will you include key figures of your campaign staff in your Washington office to remind you and any visitors of the real reasons why you won your constituents' confidence and votes? Or will you staff your office with "Washington veterans" recommended by the GOP Establishment and retired Republican leaders, who advise you to hire people who "know how the town works" and can "get things done" but have no loyalty to your constituents, your principles or Constitutional conservatism? I recall one hotshot freshman Republican Senator doing that, and he sent mixed signals and failed, leaving Washington with no record of success.

2. To all you Tea Partiers: Are you more afraid of losing your next race or of losing your integrity? What will you do when you get into a discussion at a fundraiser with a lobbyist from an industry or company that heavily supported you? What will you do the first time a corporate lobbyist or business association leader asks you to back up their support for your election with a vote that compromises your principles? I saw one new Republican Congressman, a "tough guy" who won a Democratic-leaning district while campaigning as a conservative, knuckle under in just one meeting to a group of businessmen from his home district, because he was just so afraid of losing their support.

3. Which media outlets will you care about first thing in the morning, the Washington Post, New York Times and major TV networks, or your local media? Will you fret or whine every time the WaPo and NYT call you an "unsophisticated extremist" or will you wear it as a badge of honor?

4. Will you actively seek to protect each and every one of the God-given, unalienable rights enumerated in the Bill of Rights? Are you willing to surrender your participation in one of the top committees in the House or Senate to defend the Constitution and Bill of Rights? Are you willing to actually vote "NO" on a bill pushed by your committee chairman? Will you heed a call to "get on board the team bus," or refuse and risk retaliation, such as losing funding from the chairman's leadership PAC?

5. Will you recognize, understand, and protect the 795-year-long history of the right to a jury trial for civil suits, as Thomas Jefferson, James Madison, and John Adams supported, or will it blindly accept the business community's view, which cuts a giant hole out of every edition of the Bill of Rights at the 7th Amendment?

6. Will you realize that federal preemption of state statutory and common law is antithetical to the 7th and 10th Amendments to the Constitution? Will you say that to any of the scores of business-side lobbyists who will seek preemption? Or will you gouge the 7th Amendment by promoting total immunity for the business community from oversight by state Attorney Generals and injured consumers?

7. Will you recognize that the civil justice process can actually be exploited for conservative policy goals, such as protecting the unborn, womens' health and religious liberty? Or will you join the 25-year war againist the right to a jury trial for civil suits by trashing trial lawyers and civil suits, blindly read talking points prepared by the Chamber of Commerce, and actually call for bigger federal bureaucracies?

"And I sincerely believe, with you, that banking establishments are more dangerous than standing armies." (sometimes quoted as "I believe that banking institutions are more dangerous to our liberties than standing armies.") -- Thomas Jefferson to John Taylor, Monticello, 28 May 1816 (thanks to Joseph Gallant for this quote).

Jefferson was talking about the power of large banks to control the country's currency. But we can just as easily apply that statement to the influence of the Wall Street banks on the direction of all regulatory policy at the federal and state level, especially when those banks contribute millions of dollars in lobbying expenses and campaign contributions. The Founding Fathers knew that the Constitution and Bill of Rights would instill accountability and limits on federal power, but only if the people vigilantly insisted that their representatives resist attempts by special interests to influence policy towards.

Today we see the corrosive impact of mega-lobbying by all types of special interests, including but certainly not limited to major banks now involved in "Foreclosuregate." The Founders recognized, in our framework of checks and balances, the right to sue any person in America for civil wrongs, and have those suits heard before a jury of peers, and state constitutions echo that recognition. Imagine how easily the "Foreclosuregate" banks would have ripped off thousands of American families without the backstop of the 7th Amendment and the corresponding provisions in state constitutions. The GOP and Tea Party must resist continued attempts by those banks to preempt that right in the name of "efficiency."

Like Alexis de Tocqueville, British Prime Minister Winston Churchill is an icon among American conservatives - Churchill for his heroic stands against Nazi and Soviet totalitarianism. And like de Tocqueville, Churchill was dedicated to the rule of law and to trial by jury in all cases, including civil cases, in order to prevent the accumulation and abuse of arbitrary power. Here's what Churchill said about this all-important right, enumerated over the centuries in British law since the signing of the Magna Carta in 1215 and in American law through the Bill of Rights:

"The jury system has come to stand for all we mean by English justice. The scrutiny of 12 honest jurors provides defendants and plaintiffs alike a safeguard from arbitrary perversion of the law."

The "Foreclosuregate" scandal is widening and threatens the superstructure of the housing finance industry. Attorneys General from all 50 states are opening a joint investigation into the fraudulent use of false documents and signatures to justify hundreds of thousands of foreclosures. There can be no doubt that very senior executives will be facing subpoenas, depositions, and potential criminal investigations.

And maybe that's why Bank of America, JPMorganChase, GMC Mortgage, and their trade association, the American Bankers Association, spent so much money and time in the past year to enact federal legislation which would prevent any such lawsuits and compromise our rights enumerated in the 7th Amendment. They lobbied Congress hard every day, spending millions of dollars in lobbying expenses and political contributions, to enact provisions in the financial regulatory reform bill to preempt state law and immunize themselves from state court suits by the state Attorneys General and consumers. It's not hard to imagine - If top bank officials knew that thousands of my bank's foreclosures were phony and rushed through the process, they would want to jump into the Dodd-Frank bill process to kill those lawsuits before anybody could find out the truth in court. Fortunately they didn't get the total immunity from Congress that they sought.

The state Attorneys General should pursue that angle in their "Foreclosuregate" investigations and determine whether top officials - the CEOs included - pursued changes in federal law because they knew or had some suspicion that the tsunami of phony foreclosures would soon become publicly known.

On July 16 and on June 29, I posted sections from selected state constitutions which specifically guarantee the right to a jury trial for civil suits. It's time for Part III in the series, with more quotes:

"The right of trial by jury shall remain inviolate. Juries in criminal cases in which a sentence of death or imprisonment for thirty years or more is authorized by law shall consist of twelve persons. In all criminal cases the unanimous consent of the jurors shall be necessary to render a verdict. In all other cases, the number of jurors, not less than six, and the number required to render a verdict, shall be specified by law." -- Arizona Constitution, Article 2, Section 23. Additionally, Section 31 of Article 2 adds, "No law shall be enacted in this state limiting the amount of damages to be recovered for causing the death or injury of any person."

"Trial by jury shall be as heretofore, and the right thereof remain inviolate. The General assembly may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case." -- Pennsylvania Constitution, Section 6.

"The right of trial by jury shall remain inviolate; but the general assembly may authorize trial by a jury of a less number than twelve men in inferior courts; but no person shall be deprived of life, liberty, or property, without due process of law." -- Iowa Constitution, Section 9.

"(H)e or she shall not be compelled to give evidence against himself or herself, nor shall he or she be deprived of life, liberty or property, unless by the judgment of his or her peers or by the law of the land." -- Delaware Constitution, Section 7.

"The right of trial by Jury shall be secured to all and remain inviolate forever; but a Jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law; and in civil cases, if three fourths of the Jurors agree upon a verdict it shall stand and have the same force and effect as a verdict by the whole Jury, Provided, the Legislature by a law passed by a two thirds vote of all the members elected to each branch thereof may require a unanimous verdict notwithstanding this Provision." -- Nevada Constitution, Article I, Section 3.

"The right to trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party." -- Georgia Constitution, Article I, Section I, Paragraph XI.

Many other state constitutions simply state that the right to a trial by jury "shall remain inviolate," with no language to differentiate between civil and criminal cases. For instance, Section 13 of the Illinois Constitution states, "The right of trial by jury as heretofore enjoyed shall remain inviolate." The official annotated version of the Illinois Constitution includes the following explanation: "The U.S. Constitution's Seventh Amendment guarantee of a right to jury trial in civil cases does not apply to state courts. But this section and its predecessors in earlier Illinois Constitutions protect the right in both civil and criminal cases. The right of trial by jury 'as heretofore enjoyed' has been held to refer to the right both under English common law and as it existed at the time of adoption of each Illinois Constitution."

Two weeks ago, Ken Connor, Chairman of the Center for a Just Society, posted an article on that website and others in which he discussed how top GOP Establishment figures plan on co-opting successful Tea Party Congressional candidates:

"Trent Lott, former Senate Majority Leader and current K Street lobbyist, insists that there is no room in Washington for "a lot of Jim DeMint disciples" and that the GOP establishment must "co-opt" any Tea Party candidates who manage to actually win races and make it to Washington. Recognizing the wisdom in the old adage "keep your friends close and your enemies closer," the major operatives within the Grand Old Party know that the only way to maintain their grip on power is to find a way to keep the troops in line. In the military such control is maintained by the strict adherence to the chain of command. In third world dictatorships such control is maintained through intimidation. In Washington, such control is maintained by money, the mother's milk of politics. Secure the Tea Party Republicans' loyalty the old fashioned way, Lott argues - by buying it. By doing so, the Establishment's agenda will become their agenda."

But I've discovered that the co-opting process has been underway for years, fueled by contributions from the pro-"tort reform" lobby in the business community to numerous "cosnervative" groups across the country, and with major success. Early this year, I began an effort to identify those conventional conservative and faith-based legal foundations which, in my opinion, should be concerned that their access to civil justice has been severely compromised by the twin Supreme Court rulings in Bell Atlantic v Twombly and Ashcroft v Iqbal. Through those rulings, the Court materially restricted the civil complaint process in federal courts, leading to scores of dismissals without any discovery. One of the editors of the Federalist Society's official law review has described that change as "bad news" that will increase "arbitrariness" by federal judges and promote "tremendous unpredictability."

I pursued around 20 of the legal groups and foundations on the right, thinking that they would see the eventual implications for their civil suits to protect religious liberty, gun owners' rights, parental rights, property rights, and even the rights of the unborn. I was deeply disappointed to find that almost all of the big-name conservative groups - the ones to whom I turn for sound conservative policy advice on many issues - have no knowledge or appreciation of the history, nature, or importance of the 7th Amendment's guarantee of the God-given right to jury trials for civil suits. The Heritage Foundation, AEI, Cato Institute and others have already signed up to the "tort reform" agenda without any consideration for the unalienable right to a jury trial for civil suits. Moreover, all of the conservative legal foundations across the United States refused to join me, even though key officers in several told me that they were troubled by the sudden change in pleading standards. One counsel of a major conservative legal foundation admitted that he agreed with me, but he knew he couldn't sell the position to his board, an obvious admission of influence by the business community.

Fortunately, I found some allies among the faith-based legal foundations, who kowtow to no one and are already seeing the Iqbal-Twombly pleading standards invoked against them in their filings. The Alliance Defense Fund not only wrote to Congress to express serious concern over the revised pleading standards, but informed all of its partners in their arena and encouraged them to do the same.

One veteran reporter on Washington, Tim Carney of the Washington Examiner, has already written of the Republican divide between K Street and Tea Party Republicans. I've already lived that divide and see that as the fault line for the next 5-10 years in the Republican Party.

It will be up to Constitutional conservatives to fight for each right enumerated in the Bill of Rights without compromise.

Today the Landmark Legal Foundation, a group by former Regan Administration Justice Department official Mark Levin, filed an amicus brief in federal court support of the lawsuit filed by the Attorney General of Virginia to declare ObamaCare unconstitutional. This is exactly what I described as the first of the seven reasons for Republicans and Tea Partiers to support the 7th Amendment. Surely the AGs and their allies at Landmark Legal wouldn't want their suits preempted by federal law, such as has happened to civil suits filed by victims of defective medical devices or unfair arbitration clauses in consumer contracts?

How can any Republican bash trial lawyers and civil suits when so many of the official "trial lawyers" in many states, the Attorneys General, are filing civil suits against ObamaCare, and conservative trial lawyers like Mark levin and Landmark Legal are supporting the AGs??!!

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