I posted the following eleven months ago to prove that Ronald Reagan never believed that the federal government should run state civil justice systems through federal tort reform or caps on damages awarded in state courts. With President Obama poised to deliver another State of the Union and the Republican Presidential race raging at full tilt, I thought it would be instructive to repost what I wrote in February 2011.
During the recent 100th anniversary of the birth of Ronald Reagan, we read many tributes to him and re-read many of his greatest speeches. I worked for the 1980 Reagan campaign during law school, was a political appointee in the Commerce Department during the Reagan Administration, and my wife worked for the President in the West Wing, so I joined in all the attention paid to my favorite President.
I thought it was time to go back and research President Reagan's personal stance on federal tort reform. I knew a number of senior officials in the Reagan Administration who were for some federal interference with the right to a jury trial for civil suits and states' rights, notably then-Commerce Secretary Malcolm Baldrige, for whom it became a personal crusade. But when reviewing President Reagan's major speeches, from before the 1980 election to the end of his Presidency in 1989, I found the following:
1. Ronald Reagan never proposed any tort reform measure during any of his eight State of the Union speeches, and never criticized trial lawyers in them either. I've searched every word of his SOTUs. It's a strange fact that President Obama proposed more tort reform in this year's SOTU than Ronald Reagan did in eight SOTUs (I wonder if Republicans are comfortable with that).
2. Reagan didn't criticize trial lawyers or propose tort reform in his major address to Congress on April 28, 1981, in which he proposed his economic plan. This was his first speech since the assassination attempt on his life, and it set up the entire Reagan Revolution.
3. Reagan didn't criticize trial lawyers or propose tort reform in either of his Inaugural Addresses in 1981 and 1985. Neither did he in either of his speeches accepting the Republican nomination for President in 1980 and 1984.
4. I can find no mention of this topic in any of his major speeches prior to his election: not in his famous "Time For Choosing" speech in 1964; not in his speech to the first CPAC conference in 1974; not in a speech at Hillsdale College in 1977 titled, "Whatever Happened to Free Enterprise" - none of them. It's obvious that Ronald Reagan wasn't interested in limiting civil suits.
In 1986, President Reagan gave a speech at the Chamber of Commerce, in which he backed the findings of a "Tort Reform Working Group" (TRWG) inside the Administration. To backtrack: The Reagan White House created a number of "Working Groups" to address a variety of topics. For instance, I worked on a "Consulting Services Working Group" that changed the procurement of outside consultants and saved the Commerce Department several million dollars. The TRWG proposed a group of sweeping tort reform proposals, many of which are also included in H.R. 5, the bill reported last week by the House Judiciary Committee to impose federal limits on health care lawsuits.
Here's what Reagan said about the TRWG proposals in his 1986 speech, and note the emphasis on protecting states' rights:
Earlier this year I endorsed the report of my Domestic Policy Council's Tort Policy Working Group. This report contains a number of recommendations, recommendations that include fixed-dollar limitations for certain kinds of awards and the establishment of assurances that liability judgments go to those actually wronged or injured and not to the lining of their attorney's pockets. Now, one of the report's most important recommendations urged our administration to submit reform legislation to the Congress.
This legislation, carefully drafted, has now been introduced in the Congress by Senator Robert Kasten and Congressman Hamilton Fish. It restores the fault standard, which requires that actual fault or wrongdoing must be established in most cases before liability can be assessed. It limits pain-and-suffering and punitive damage awards, awards the amount contingency-fee lawyers could earn, and restricts the joint and several liability doctrine that can force a single defendant to pay all damages even if he is only partly to blame. To be sure, much tort law would remain to be reformed by the 50 States, not the Federal Government. And in our Federal system of government this is only right. Many of the Tort Policy Working Group recommendations, for example, would have to be implemented at the State level to be fully effective. This administration's bill represents a much-needed overhaul of Federal laws governing interstate commerce -- one of the fields of authority the Federal Government is specifically granted by the Constitution -- and sets an example of common sense for the rest of the Nation to follow.
To my knowledge, and with the limitations that come with Internet research, this is the only speech in Ronald Reagan's long political career that comes close to proposing specific federal tort reform measures. And he recognized that states are the proper venue for the debate over tort reform, under "our Federal system of government," not the federal government. And he said it ONCE. He didn't follow up that speech with any other, not at the 1987 CPAC conference, not at the 1988 Republican convention, nowhere. You can do your own research and try to prove me wrong (I suggest you start at this website and at this website, where I found links to every speech cited in this post).
Anyone asserting that "Ronald Reagan was for tort reform" is mistating the Reagan record. It wasn't a priority for him, he didn't see civil litigation as a major problem, and it appears that he gave only one speech on it. That's certainly no basis for sweeping away states' rights in a new federal tort reform law.