One burning question from our past two weeks of reporting at the Capitol on the governor's special session is a simple, if surprising, one. Does Haley Barbour really want tort reform?
It seems obvious, on its face, that Gov. Barbour wouldn't mind seeing a tort reform bill pass the House and Senate and come to his pen for a signature. But we're less convinced this week that he absolutely craves that result. Could he live with a stalemate?
One clue is his response this first week to a reporter's question at a "lawsuit abuse" press conference sponsored by Mississippians for Economic Progress, a civil-justice reform lobbying group.
"If the [House] will vote on tort reform, I don't think that it is worth the Legislature's efforts to hold them just for voter identification. I hope we can go home tomorrow," Barbour said.
So, let's recap. Barbour called a special session with two topics. One of them was voter ID. After three days, though, he was willing to let voter ID go—and that's with the 2004 election coming, which would presumably be a time when rampant voter fraud would concern Mr. Barbour.
The logical conclusion is that voter ID was included for political reasons. Bringing it up gives Barbour a bone to throw to a conservative constituency that believes, rightly or not, that voter ID is a problem. But it's something he'll hardly fight for at all. Why? Our guess is it's because he sees it as a nice, evergreen political punching bag that he can trot out when he wants to rile the troops. The Democratic House blocked me, and I had to let it go, he'll say.
Now, we know Mr. Barbour is a politically savvy guy—and he's just proven that he's willing to call a special session for political reasons. That's why our gut reaction is that he could live without tort reform for another year or two—because it would give him the same excuse-on-steroids to target non-Republican opponents. If nothing comes of this session, he could say, The House blocked me on tort reform…Vote those bums out! Think about it:
• Why has Barbour stuck to his impossibly low cap of $250,000 for non-economic damages in general civil liability cases—a cap that nearly no other state in the union has?
• Why is he intentionally confusing the idea of "lawsuit abuse" (presumably, frivolous lawsuits with no basis) with his desire for damage caps (which only apply to victims who have won lawsuits for being harmed)?
• Why is it that the governor has taken a position that he knows is almost impossible for the House leadership to agree to rather than working toward business-friendly compromises that can pass?
• Why have House and Senate Republicans—all people that Mr. Barbour presumably has on speed dial—blocked two different efforts by the House to put together a compromise bill in the first week?
First, we know that Barbour is a well-educated, world-savvy person. So he must have read Congress' General Accounting Office report that showed that the medical malpractice "crisis" was overblown, and he must be aware that caps haven't caused premiums to drop in other states, including California. Presumably, he has some sense that the $250,000 non-economic damage cap isn't the only legitimate civil-justice reform that can be taken up. He may even understand that a cap is less effective "tort reform" than measures that can curb "venue shopping" and that overturn "joint and several" liability.
But the indicators are that, as with voter ID, he's willing to toss all of those other provisions if he doesn't get his cap.
The reasoning is simple. If a more limited "tort reform" bill passes—even if that limited approach is the best solution for Mississippians—then there's less ammunition for going after the governor's political opponents. The U.S. Chamber of Commerce, insurance companies and other tort-reform groups have poured millions and millions of dollars into Legislative and judicial campaigns in Mississippi and for national offices—with the intention not only of immunizing industry as much as possible from lawsuits, but with stacking statehouses with Republicans.
Rep. Chip Pickering has already raised $325,000 for his 2004 race against an unnamed Democrat, with $25,000 from insurance PACs (political action committees) and $56,000 from health-care PACs. Anyone with a pro-"tort reform" agenda might stand to gain from a lengthy battle.
And yet, the best approach to improving insurance rates and the business climate in Mississippi would be a reasoned, rational approach to both civil-justice reform and insurance reform. As has been proven in states like California, it takes a combination of steps to keep insurance companies in the state while keeping premiums down and taking care of victims of negligence.
Reasonable reforms that take consumers into account are necessary in general liability cases. Yes, a $250,000 cap on non-economic damages (coupled with the new, lower punitive damage cap that the Senate and governor support) could attract new businesses to the state. But what the hell kind of businesses will they be? If these theoretical businesses are that worried about payouts for legitimate injury and negligence claims—then maybe we don't want them here, endangering lives of Mississippians.
That's not to say that reforms shouldn't happen. We support them—both civil-justice and insurance reforms—particularly if they are reasoned out, balanced and take all parties into consideration. That's going to take more discussion on the part of lawmakers, more education on the part of voters and—need we say it?—much better reporting on the part of the state's media. In an editorial last week, The Clarion-Ledger reported "most states have a cap between $250,000-500,000" on non-economic damages. This is so wrong that the lack of a printed correction has to bring the media corporation's motives into question. Although there is a trend toward them, most states still do not have caps on medical malpractice non-economic awards at all; very few (perhaps eight) have caps on general liability non-economic awards.
The Jackson Free Press will be disappointed if tort reform isn't handled on some level during this special session, both because it's costing taxpayers money, and we'd like to see some reforms take place. But we don't think caps make sense this session—they simply haven't been studied closely enough, and where they have been studied, they don't seem to work.
After the first eight days, we wonder how disappointed Haley Barbour will really be if no tort reforms pass. Presumably he'll be a hero among his contributors if he gets his $250,000—or perhaps even a $500,000—cap on non-economic liability damages. But if he doesn't get those caps and no civil-justice reforms pass, will he count the special session as a failure? Or will he just keep counting the dollars pouring into the Republican war chest for this year's and next year's elections?
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