Delegating Democracy

One of the big stories of the past decade is how the lawyers have taken over government. By this I am not referring to lawyers' winning elections--something that dates to the republic's earliest days. What has happened is that lawyers, acting on their own and deploying various legal devices, are increasingly trying to set government policies by themselves. Litigation substitutes for political debate and legislative struggle. It's not a healthy development.

You can glimpse this phenomenon on many fronts. There's Microsoft. The Justice Department's antitrust suit amounts to "industrial policy"--an avowed attempt to intensify competition and innovation in an industry where they're already plentiful, with unpredictable consequences. If you believe the White House, the suit was filed without any review by administration economic officials. Could the policy have passed a broader inspection?

Then there was Ken Starr's unending investigation of Clinton. You do not have to be a Clinton enthusiast (I am not) to think that the process got thoroughly out of hand. It did so because the special-counsel law barely limited Starr's power. The result was an ill-disguised campaign to overturn the 1996 election. Starr argues plausibly that he simply did what the law required. What seems equally plausible is that someone else might have read the law differently.

Finally, recall the tobacco settlement. It effectively imposed a huge cigarette tax on the almost 25 percent of Americans who smoke, with the proceeds going to states and the trial lawyers who sued on the states' behalf. Congress, of course, did not approve this tax or the massive transfer to a small number of--perhaps a few thousand--lawyers. At last count the lawyers had been awarded about $11 billion in fees. (Although the tobacco industry pays the fees, the costs are mostly passed along in higher cigarette prices.)

What connects these apparently unrelated episodes--all huge news events--is the similarity of the process. In each case some contentious economic, social or political matter was transformed into an ostensibly "legal" issue. This enabled lawyers, following their own beliefs or interests, to drive and shape events. The process continues, most prominently in suits against the gun and health-care industries, and we can expect much more of the same.

Lawyers--like other people--have been known to be ambitious, greedy and power-hungry. Some will always seize opportunities to expand their wealth or influence, unless stopped. But resistance is waning. Indeed, social activists and some political leaders increasingly prefer legal to legislative action. The legal route promises a definitive outcome, while legislation may go nowhere or involve messy conflicts. Money awards from lawsuits--if partially channeled to governments--can substitute for tax increases. In defending huge tobacco fees for lawyer Peter Angelos, Maryland Gov. Parris Glendening said: "Give me three more Peter Angeloses, and we don't have to worry about the budget."

What insulates the process from critical scrutiny is public respectability. Of course, there are periodic outbursts against overzealous lawyers, silly lawsuits and outrageous fees. But there's a general feeling (especially in the media) that legislative politics has become stalemated and that somehow, the evils of the tobacco industry, the gunmakers, Microsoft, the HMOs--or the latest damnable industry--must be curbed. Law-yers become agents for the "greater good," and their excesses are minimized.

This attitude is shortsighted. We are quietly delegating our democracy in unwise ways. Democracy--politics--is messy because it engages competing interests and attitudes. The conversion of difficult political choices into legal issues (disputes that can be litigated) usually involves a narrowing process that excludes important social considerations. Complex disagreements become simple questions of right and wrong. Compromise gives way to "winner take all" outcomes.

We should be wary. Government policies need to achieve a certain level of fairness, popular acceptance and balance among legitimate, if inconsistent, public desires. The more we remove conflicts from politics, the less likely this is. Take gun control. I do not own guns--and dislike them--but 45 percent of U.S. households have guns, reports a recent Washington Post survey. Any new gun controls should result from legislation, not lawsuits--or settlements--that might ignore views of gun owners. (Not all gun owners oppose tighter controls, however; two thirds of the respondents in the Post poll supported more regulation.)

This is what happened in the tobacco litigation. I don't smoke--and again, would prefer if no one else did--but objective studies do not find that smokers impose extra health and pension costs on society. This was the justification for the suits, and by this standard the settlement--an expedient truce between the lawyers and the industry--was grossly unfair to smokers. The same thing could occur in health care. There are genuine conflicts between society's interest in controlling total medical spending and individuals' desire for complete choice over treatment. But creating a long list of "patients' rights" that can be litigated isn't the best way to handle the conflicts. This would enrich lawyers and, perhaps, aid some patients; the odds are that it would also hobble cost control and raise taxes or insurance premiums for almost everyone.

Government by litigation subverts democracy; litigation as politics subverts the law. Of course, there are checks. Starr's investigation became impeachment, which made Clinton's survival--sensibly, in my view--a political matter for Congress. The appellate courts may side with Microsoft, curbing the Justice Department's appetite for industrial policy. But in general the checks are weakening. "Suing the bastards" has become a populist battle cry that glosses over deep social conflicts. The vast tobacco fees mean that many well-financed trial lawyers can contend with any major industry. Politicians--often receiving lawyers' campaign contributions--find it increasingly convenient to aid or join the suits. The drift is plain; it bodes ill for both the law and politics.