Senator Clinton, with her votes in favor of the war in Iraq and in favor of the $87 billion for the troops there and with her recent comments on reducing the numbers of abortions, is starting to win a reputation as a bit of a moderate. This is especially so in comparison with the incoming chairman of the Democratic National Committee, Howard Dean, who is often caricatured as an extreme left-winger. But an important vote in the Senate yesterday was just one example of how Mrs. Clinton still has quite a distance to go before she can be considered a genuine centrist.
The junior senator of New York cast a vote against the Class Action Fairness Act of 2005, which recognized that abuses of class actions have "adversely affected interstate commerce" and "undermined public respect for our judicial system." The bill notes that class members are sometimes harmed, as in cases in which lawyers "are awarded large fees, while leaving class members with coupons or other awards of little or no value." The law would give federal courts jurisdiction over interstate class actions in which more than $5 million is at stake, preventing plaintiff's lawyers from forum-shopping and filing suits before state courts in jurisdictions where the judges and juries are known to be sympathetic.
President Bush has been pushing for the legislation. In an appearance this week, he noted, "a litigious society is one that makes it difficult for capital to flow freely." Mr. Bush said, "Interstate class-actions ought to be conducted in the federal court." It's a point that you don't have to be a Republican to agree with, a fact Mr. Bush underscored by making his appearance this week with President Clinton's solicitor general, Walter Dellinger, who noted, "one of the problems is that you sometimes have, in one of these state class-actions, a state court judge making law for the whole country."
Plenty of Democrats joined Republicans yesterday in approving the Class Action Fairness Act in the Senate. Mrs. Clinton's New York colleague, Senator Schumer, voted the right way. He had even co-sponsored the legislation. Senators Dodd and Lieberman of Connecticut, Bayh of Indiana, Feinstein of California, Landrieu of Louisiana, Nelson of Nebraska, Obama of Illinois, and Salazar of Colorado were among the Democrats who joined Mr. Schumer to support the bill. They amount to a common-sense caucus among the Democrats. Mrs. Clinton isn't part of that group. She sided instead with the party's die-hard liberals, joining with Senators Boxer, Kennedy, Kerry, and a few others on the losing side of the 72 to 26 final vote.
In a statement about the bill yesterday, Mrs. Clinton acknowledged, "there are some problems in the use of class actions, and in some cases there are excessive fees or inappropriate coupon settlements." Yet she went on to belittle the problem, citing a study by Public Citizen, without noting that it is a trial-lawyer front group. She also cited states attorneys general, without noting that they have been among the most reckless plaintiffs. She claimed to be defending "the little guy," without acknowledging the cost that the little guy pays for litigation, in the form of higher prices for everyday goods and services, and that the failure of the tort system to help the little guy is exactly what this legislation is about.
A cynic might speculate that Mrs. Clinton was bought off by campaign contributions from class-action lawyers such as Melvin Weiss, William Lerach, and Ronald Motley. But there's another possible explanation, one that doesn't disparage her character, just her world view. It is that this former commodities trader and Wal-Mart director is simply hostile to the businesses that are hampered by these abusive lawsuits. She wants to burden them by mandating expensive health care coverage and by raising their taxes. So why would she want to protect them from abusive lawsuits? It'll be a vote to remember when and if Mrs. Clinton stands before the voters of New York for re-election in 2006. Maybe Mr. Schumer will even have the bipartisan spirit of Mr. Dellinger, and be willing to appear in public with Mrs. Clinton's Republican opponent to help explain the substance of this issue to the voters.