Lawfare abuses orchestrated by left-wing activists and sympathetic government officials that enact harmful policies and enrich activist groups need to be curbed, a congressional panel heard on June 6.
The former Trump administration curbed such abuses, but the Biden administration revoked the Trump policy, and as a result, energy development has been shut down on millions of acres of public lands, one witness testified.
Another witness said former New Jersey Gov. Chris Christie, a Republican, abused the policymaking process when he forced through an “improper third-party payment” when he was the U.S. attorney in New Jersey.
Lawfare, a portmanteau of “lawsuit” and “warfare,” in the governmental context refers to a process in which activists who are administration allies engage in collusive litigation, suing the government in order to achieve a policy objective. Such legal proceedings are welcomed by government officials who are sympathetic to the goals of the activists.
Lawfare can involve “hard sell” or high-pressure sales tactics, sometimes based on a contrived claim that action is urgently needed. Critics say it’s often used by left-wing environmentalists against the U.S. Environmental Protection Agency (EPA) in a “sue-and-settle” arrangement that advances the policy goals of the activists.
These lawsuits often conclude with a settlement in which an alleged corporate wrongdoer pays millions of dollars to activist groups that may not have been involved in the litigation. These funds are called “slush funds” by Republicans.
The remarks were made at a hearing by the Republican-controlled House Judiciary Committee’s Subcommittee on the Constitution and Limited Government about abuses in government litigation.
Congress is now looking at legislation to address these perceived abuses, according to subcommittee Chairman Mike Johnson (R-La.).
A proposal, H.R. 3446, introduced in May by Rep. Victoria Spartz (R-Ind.), would impose limitations on consent decrees and settlement agreements by agencies that require those agencies to take regulatory action.
H.R. 788 was introduced in February by Rep. Lance Gooden (R-Texas). With stated exceptions, the bill “prohibits the federal government from entering into or enforcing a settlement agreement on behalf of the United States that provides for a payment to any person or entity other than the United States,” according to a summary.
Johnson said sue-and-settle “can occur where pro-regulatory plaintiffs and willing government agencies circumvent federal law, namely, the Administrative Procedure Act, while rewarding special interests that they favor when a pro-regulatory plaintiff sues and then settles with an agency in ways that require certain types of rulemaking.”
That allows plaintiffs and government agencies to “avoid public scrutiny and congressional oversight of the agreed-to policy” while binding agencies “to rulemaking that extends from one administration to the next.”
Settlement slush funds are a problem because after defendants settle lawsuits with agencies “instead of the government directing all settlement funds to the U.S. Treasury or to the injured parties, agencies have this habit now ... of requiring defendants to give the money to politically favored special interests that are disconnected entirely from the litigation in many cases,” according to Johnson.
Slush funds support “the pet projects of an administration” and “can amount to a form of executive branch spending that’s not approved or even reviewed by Congress.”
“This circumvents congressional oversight and the resulting accountability of the executive branch,“ Johnson said. ”So here too, of course, we believe that reform is desperately needed.
Rep. Jerrold Nadler (D-N.Y.) pushed back against Johnson.
“Apparently, whenever there is a Democratic presidential administration, Republicans’ go-to move is to waste the committee’s time accusing the executive branch of overreaching its legal and constitutional authorities,” Nadler said.
“The conspiracy theory du jour for our hearing is that federal agencies are ‘colluding’ with liberal activist groups to abuse civil litigation in order to circumvent Congress’s legislative authority.
“There is simply no credible evidence to support these allegations. Instead, today’s hearing is simply a tired attempt by the majority to paint a constitutional veneer upon the unpopular anti-regulatory agenda, which includes enacting legislation that will undermine critical financial, environmental, health, and safety protections for the American public.”
H.R. 3446 “would create a gauntlet of burdensome and time-consuming procedures that would effectively stifle settlements and consent decrees,” while “further slowing down the rulemaking process,” which is the bill’s real purpose, he said.
The use of sue-and-settle lawsuits “exploded” during the Obama administration, according to witness Andrew Grossman, an attorney who’s a partner at Baker and Hostetler.
“Both environmental activists and regulators have learned that they can use settlements to push through controversial policies,” said Grossman, who’s also a senior legal fellow at the Buckeye Institute and an adjunct scholar at the Cato Institute.
The Trump administration stopped sue-and-settle “in its tracks,” he said.
The EPA instituted a policy providing that no settlement could move forward “without hearing from all of the stakeholders, including states including regulated parties.”
But the Biden administration revoked the policy and over the past two years, the EPA “has agreed to more than 20 litigation settlements, nearly all of them with environmentalist groups.”
Grossman said the Bureau of Land Management “has entered a series of settlements with environmentalists that have shut down energy development on millions of acres of public lands.”
Witness John Shu, an attorney and legal commentator, said there are plenty of examples of sue-and-settle being abused.
Christie, who announced a 2024 run for the Republican presidential nomination on June 6, forced through an “improper third-party payment” while he was the U.S. attorney in New Jersey.
“He forced Bristol Myers Squibb to pay $5 million to Seton Hall [University] to fund a professorship,” Shu said.
“It’s just by coincidence that Seton Hall is Gov. Christie’s alma mater. It’s just by coincidence that that kind of work would be a boost to his local political career in New Jersey.”
Christie’s behavior “ought to be shocking and disappointing to everybody in this room,” the witness said.
If you don’t like Christie forcing the improper third-party payment, “the solution is statutorily for the Congress to exercise its authority, get rid of it, and bring us back to a constitutional state for enforcement,” he said.
Civil asset forfeiture was also discussed at the hearing. Lawmakers from both parties agreed that the process is widely abused.
In civil asset forfeiture, police can seize property from people who are merely suspected of committing a crime, a practice sometimes referred to by the pejorative phrase “policing for profit.” Often the value of the property is too low to justify the owner hiring a lawyer and going to court to recover the asset, so many forfeitures that involve people who haven’t been convicted of a crime go unchallenged, lawmakers were told.
“In recent times–here’s the problem—civil asset forfeiture has become a device for unjustified governmental takings,” Johnson said.
“The standards for government taking of property vary from state to state and sometimes differ from federal standards. The problem today is that current federal standards for civil forfeiture invite abuse in part because state agencies can skirt state-based forfeiture protections and rely on more relaxed federal law to confiscate property. That results in innocent citizens losing property that the government simply pockets.
“Reform to federal law is necessary to restore the original intent of the law because–it’s an important one—and [to] better protect citizens’ property.”
The decision overturned a ruling by the Indiana Supreme Court that the state was entitled to keep a 2012 Land Rover LR2 valued at $42,000 that was confiscated from Tyson Timbs. Timbs used the vehicle when selling a total of $385 worth of heroin to undercover police, a crime for which he was convicted and sentenced to five years of probation.
Because the vehicle was used to commit a crime, the legal thinking was that it became an instrument of the crime and could be seized. A private law firm had sued on behalf of the state to force Timbs to forfeit the vehicle.
In its ruling, the Supreme Court unanimously found that a constitutional ban on excessive fines that Indiana had argued applies only to the federal government applies to all U.S. states. Two years later, authorities returned Timbs’s vehicle to him.
Rep. Tim Walberg (R-Mich.) introduced H.R. 1525 in March to curb forfeiture abuses. The measure is currently under consideration by a House panel.
