With the Bush administration, it's important to have in mind the old carnival con game: Keep your eye on the shell with the pea under it.
Among the many curious aspects of the administration's approval of the Dubai Ports World takeover of operations at six major ports (and as many as 21) is this exemption from normally routine restrictions: The agreement does not require DP World to keep copies of its business records on U.S. soil, which would place them within the jurisdiction of American courts. Nor does it require the company to designate an American citizen to accommodate requests by the government. So what's that about?
It makes DP World harder to sue and less subject to American regulation. The lovely thing about the ports deal causing such a commotion is that it allows us to bring attention to this fairly obscure provision, which is, in fact, part of a wave of similar special exemptions that's starting to turn into a flood.
Here's an example of how it works: Just before Christmas last year, in a spectacular example of a straight power play, Senate majority leader Bill Frist and House speaker Dennis Hastert pulled off a backroom legislative deal to protect pharmaceutical companies from lawsuits. The language was slipped into a Defense Department appropriations bill at the last minute without the approval of members of the House-Senate conference committee meeting on the bill.
Lots of players were outraged at the short-circuiting of the legislative process. "It is a travesty," said Thomas Mann of the Brookings Institution. Representative David Obey, who had specifically checked to make sure the language was not included, was enraged, calling Frist and Hastert "a couple of musclemen in Congress who think they have the right to tell everybody else that they have to do their bidding." Representative Dan Burton said succinctly, "It sucks."
The way this was done was outrageous, but so is what it did. Frist has received over $270,000 in contributions from the drug industry and has long advocated liability protection for vaccine makers. The provision allows the secretary of health and human services to issue a declaration of a public health emergency, or threat of an emergency, or declaration of "credible risk" of an emergency in the future, thereby protecting the industry against lawsuits involving the manufacture, testing, development, distribution, administration, or use of vaccines or other drugs.
In order to prove injury from a drug, a person would have to prove "willful misconduct," not just actual harm.
But this putrid performance is part of a much larger pattern to protect corporations from the consequences of the damage they cause. The Los Angeles Times reports:
"The highway safety agency ... is backing auto industry efforts to stop California and other states from regulating tailpipe emissions."
"The Justice Department helped industry groups overturn a pollution-control rule in Southern California that would have required cleaner-running buses, garbage trucks, and other fleet vehicles."
"The U.S. Office of the Comptroller of the Currency has repeatedly sided with national banks to fend off enforcement of consumer protection laws passed by California, New York, and other states."
Because of repeated problems with roof-crush incidents that have crippled drivers in rollover accidents, the National Highway Traffic Safety Administration at last proposed a beefed-up safety standard for car roofs -- but the proposal also provides legal protection for the manufacturers from future roof-crush lawsuits. So your car roof may be less liable to crush during a rollover, but if it does and leaves you paraplegic, you won't be able to sue.
Sometimes I'm not sure what planet these people live on. Would a fine, upstanding American corporation actually make a product that would hurt someone? Knowingly? Would they ever lie to cover it up after they find out about the problem and continue manufacturing whatever it is until forced to stop? Well, would they do that if it was really, really profitable? Could that happen in our great nation?
The trouble with the people who write The Wall Street Journal's editorial page is that they never read their own newspaper, which still does the best job of business reporting anywhere. Business interests have done a splendid job of vilifying trial lawyers and pretending the only people hurt by limiting the right to sue are trial lawyers.
Look, the trial lawyer is not the one in a wheelchair after a roof-crush rollover leaves someone paraplegic. Do you drive a car?