Commentary
Negotiations reportedly aren’t going well between the Biden administration and Sen. Joe Manchin (D-W.V.), the swing Democrat in the 50–50 U.S. Senate who will likely decide the fate of the president’s Build Back Better (BBB) legislation, which has been calculated to cost $5 trillion.
Manchin’s stated concerns have focused on the extent of the measure’s spending at a time of growing, stubborn inflation. But the specifics of the legislation, as it now stands, are riddled with objectionable provisions. They range from imposing the highest taxes since Jimmy Carter—including an anti-entrepreneurship capital gains tax rate of 37 percent—to new cradle-to-grave entitlements that would extend the federal government’s reach into child-rearing to welfare designed to prop up unprofitable left-wing media outlets.
That’s just a taste of what’s in the legislation. One of its most egregious features is a $2.5 billion handout to trial lawyers, and it may be here where we will discover whether Manchin is really the man of the Mountain State that he claims to be or a Washington swamp creature.
The BBB would allow trial lawyers everywhere in the country to deduct their contingency-fee expenses whether they lose or win a case (even though winning their lawsuit means taking a large percentage of the monetary award, typically 30 0r 40 percent). The Joint Committee on Taxation pegs the cost of this measure to taxpayers over the course of a decade to be $2.5 billion.
With this subsidy, trial attorneys will launch frivolous actions more than ever before, especially against smaller businesses lacking the resources to defend themselves who would therefore have a strong incentive to cry uncle and settle.
But it isn’t the sadistic impulse to drag entrepreneurs into drawn-out court cases that constitutes the Democrats’ primary motive. Trial lawyers are one of the Democratic Party’s main sources of campaign donations. Handing taxpayer cash to plaintiffs’ attorneys is a means of filling Democrats’ coffers and perpetuating their political power at a time when their policies are failing and veering further left than ever.
Manchin himself is no stranger to trial lawyers’ booty. The political action committee of the American Association for Justice (formerly the Association of Trial Lawyers of America, a more honest moniker), whose mission, naturally, is to prevent tort reform at all costs, has bestowed thousands of dollars into Manchin’s campaign fund.
“In total, lawyers and law firms represent the second-largest source of donations to Manchin’s campaign committee and leadership PAC ... totaling more than $822,000 in contributions since 2015,” as the socialist commentary site Jacobin noted, citing data compiled by Open Secrets.
Manchin’s younger first cousin, Timothy J. Manchin, was president of the West Virginia Trial Lawyers Association. Today, he boasts of “a track record of success maximizing compensation” at his 10-year-old Fairmont, West Virginia-based Manchin Injury Law Group. The firm was involved in the $2.4 billion Takeda Pharmaceuticals settlement over warning about the side effects of its Actos diabetes drug in 2015. The younger Manchin is a state delegate for the same American Association for Justice, and he was a member of West Virginia House of Delegates for more than a decade, rising to chairman of its Judiciary Committee.
West Virginia, one of only a handful of states with no intermediate court of appeals, had been ranked “as the worst ‘Judicial Hellhole’ in the country” by American Tort Reform Association President Tiger Joyce. Litigation horror stories in the state recounted by Roman Stauffer, executive director of West Virginia Citizens Against Lawsuit Abuse, included a legally blind man suing a bike rental company after getting into a crash and a brief breach of medical patient record security in which the class action plaintiffs’ attorney had apparently admitted that there was no evidence that any of his clients’ medical information had been accessed.
But four recent laws signed by Republican Gov. Jim Justice are changing the state’s courtroom environment.
“West Virginians will reap the benefits of a more efficient and balanced legal system for years to come thanks to the progress made this year,” Joyce said.
Ominously, however, Sen. Manchin voted in June for the Paycheck Fairness Act, which promises to make it easier “to facilitate a wronged worker’s participation in class action lawsuits that challenge systemic pay discrimination.” But in the view of House Education and Labor Committee ranking Republican Rep. Virginia Foxx (R-N.C.), “Instead of treating pay discrimination allegations with the seriousness they deserve, the so-called Paycheck Fairness Act is designed to make it easier for trial lawyers to bring more suits of questionable validity for the purpose of siphoning off unlimited paydays from settlements and jury awards, lining their own pockets and dragging women through tedious, never-ending legal proceedings.”
A deal with Sens. Manchin, and Kyrsten Sinema (D- Ariz.), the other swing Democrat, now seems unlikely before January. One neglected question is how far Manchin’s objections go beyond the widely underscored price tag of the legislation and into its monstrous details. In the end, will he side with West Virginia’s small businesses and the employees whose livelihoods depend on them or with the nation’s trial lawyers in more than 30 states whose checks he has cashed?
