These two senate fortysomethings-superbly credentialed, well-barbered sons of the New South-are key antagonists in the health-care debate. But they’re something else as well: symbols of how the political parties really work, and what they really represent. For it’s clear we should relabel Democrats “The Plaintiff’s Party” and Republicans “The Defendants’ Party,” and may as well replace donkeys and elephants with Edwards and Frist.
The Patients’ Bill of Rights debate is, in many respects, an argument not about medicine, but about the role of lawyers and the courts in American life. And on that question Democrats and Republicans violently disagree. Democrats have long looked to the courts to solve social and political problems, and developed an almost religious fervor about it in the ’60s. The Republicans, always the party of business, tend to see the legal world from a bottom-line perspective: courts as a necessary evil, lawyers as commercial parasites.
I oversimplify, of course, but not much. The nature of the two parties today is clear. Just follow the money. Lawyers are the Democrats’ sugar daddies. Lawyers and law firms contributed a whopping $108 million in the last election cycle-70 percent of it to the Democrats. It’s the mirror opposite on the GOP side, where the daddies are defendants, corporate style. The health-care, pharmaceutical and health-insurance industries funneled a combined $150 million into elections in the last go-round-70 percent of it to the Republicans.
In Washington, you are who you hire, and a president is the sum of the advice he receives. Those patterns, too, reveal the cultural divide on the role of the law. The Clinton administration was the zenith of the law and courts active in politics. Bill and Hillary were graduates of Yale Law School, arguably the institution most responsible for the theory that courts are, and should be, engines of uplift. The rest of the inner circle brimmed with lawyers, from Treasury Secretary Robert Rubin to Agriculture Secretary Dan Glickman to spin doctor Paul Begala.
The inner sanctums of Bush I and Bush II were and are almost lawyer-free. Both Bushes are Yalies, but hail from a political place on campus as far away from the Law School as possible. Bush I’s chief of staff, John Sununu, was an engineer; so, oddly, is Bush II’s, Andy Card. Bush II’s most trusted adviser, Karl Rove, doesn’t have a college degree. There are few lawyers in the cabinet or elsewhere in the White House. Attorney General John Ashcroft is a lawyer, of course, but he was trained at the University of Chicago-the anti-Yale when it comes to considering the role of law in solving social problems.
It’s natural that Edwards and Frist would come to the fore in the debate on a patients’ bill of rights. Before he won his North Carolina Senate seat in 1998, the smooth-talking and photogenic Edwards was one of the nation’s leading trial lawyers. He grew rich in the job by convincing juries that his clients’ claims were not only justified but that the behavior of the defendants was egregious enough to justify sending a message. Such “punitive” damages are where the Big Money is, and Edwards was good enough at winning them that he became a member of the trial lawyers’ elite private honorary club.
Frist, who won re-election in Tennessee last year by a record-setting margin, comes from a Tennessee family that helped turn health care literally into an industry. A Harvard-trained surgeon, Frist pioneered and mastered new transplant techniques. But he’s also a major stockholder in a corporation called HCA-The Healthcare Company, one of the nations’ (and the world’s) leading for-profit hospital chains. HCA isn’t an HMO, the groups that are most directly affected by the bills now being debated in Congress. But his family’s business is all too aware of what the courts can do for, or to, companies in the health-care field.
The right to sue anybody over anything is so deeply imbedded in modern American thinking that even the White House doesn’t dare dispute it. President Bush, Sen. Frist and most of the GOP are willing to grant that any patients’ bill of rights needs to lift the federal ban-imposed almost by accident in a federal law a quarter century ago-on an aggrieved patient’s right to sue federally sanctioned health-maintenance organizations.
As usual, the stakes increase as the type-size shrinks. The Democratic bill would allow plaintiffs to sue in state court, not just federal court-and state court is where the sympathetic juries and elected judges are. The GOP bill would limit plaintiffs to federal courts, which have a huge backlog of cases. If President Bush has his way, their benches will soon be occupied by hundreds of conservative judges. The money limits are different too: Democrats would limit punitive damages to $5 million; Republicans to a mere $500,000.
Democrats such as Edwards insist that there is no better way to insure that HMOs and other health-care providers do a good job. Having shied away from Hillary Rodham Clinton’s massive-and massively bureaucratic-plan, the Democrats see this as the best alternative. Republicans call the Edwards bill “a lawyer’s right to sue,” and they think they have enough votes to stop it, by Senate filibuster if necessary. It’s shaping up as one of the most contentious issues of the year, if not the election cycle, which starts in earnest this fall.
GOP leaders take comfort from the results of a recent special election in southern Virginia. It’s a Democratic “swing” district, 39 percent African-American. Democrats poured millions into the race, in part by running TV ads accusing the GOP of coddling the health-care industry by opposing a patients’ bill of rights. The Republican won anyway. But the GOP ought to worry about some other types of election returns-the kind they keep tabs on at places such as Blockbuster. Since its release a year ago March, the movie “Erin Brockovich” has been a smash at the box office, in home rentals and in DVD and VHS sales. Julia Roberts is one reason, of course. But so is the message, which is that you can do right and make the world a better place by filing a lawsuit-and make a bundle in the process.
