The Paycheck Fairness Act basically makes it much easier for employees to sue their employers over wage discrimination. For example, it would put the burden of proof on employers to show that a difference in salary between a man and a woman was based on “business necessity.” And if the plaintiff could demonstrate that an “alternative employment practice” existed that would rectify the perceived injustice, and it wasn’t put in place, the business could face penalties. James Sherk of the Heritage Foundation described that as “an incredibly high standard” when I spoke with him about the legislation in June, and the Washington Post editorial board cited it as a reason they opposed the legislation.
Another way the bill would be a boon to trial attorneys: It eliminates the current $300,000 cap on punitive damages and makes class-action suits opt-out rather than opt-in — which means that potential class sizes could be enormous, as Sherk told me back in June when this legislation failed. The cost of fighting this kind of lawsuits and insuring against them would probably be mammoth — not exactly the kind of burden you want to put on businesses in a recession.
That is, it’s not the kind of burden you want to put on businesses unless you’re a member of the trial-lawyer lobby or you get lots of money from it. And, no news here, Democrats get tons of from trial lawyers. As NR’s Andrew Stiles reported in June (for the Washington Free Beacon), trial lawyers gave more than $230 million to federal candidates and committees. Three-quarters of that went to Democrats. Data from the Center for Responsive Politics shows that some of the Paycheck Fairness Act’s most vocal proponents, including Representatives Rosa DeLauro and Jan Schakowsky and Senator Kirsten Gillibrand, have gotten especially substantial windfalls from the trial-law industry.
One of the top donors to Schakowsky’s campaign committee was the American Association for Justice, also known as the Association of Trial Lawyers of America. Schakowsky called the Senate vote against the Paycheck Fairness Act “another chapter on the war on women.” Indeed. The Orwellianly named American Association for Justice is also one of Rosa DeLauro’s top donors. And her third-biggest donor, Koskoff, Koskoff, and Bieder, has been called one of Connecticut’s best plaintiff’s law firms.
Gillibrand, who leapt to her feet when the president brought up the Paycheck Fairness Act during the State of the Union address, certainly had a lot to be excited about. Lawyers and law firms are the industry that gives her the most support (more than $4 million between 2007 and 2012). Her top two donors are both law firms. One, Boies, Schiller & Flexner, is headed by David Boies, a rock star of the trial law industry. If you were getting that kind of support from trial lawyers, you’d probably jump up and down about the Paycheck Fairness Act, too.
Of course, Democrats win either way by pushing this legislation — either they realize all their legislative goals and do a big favor to their allies in the trial-lawyer lobby, or Republicans block their efforts and give them endless fodder for campaign commercials and fundraising letters. Ho-hum, nothing new here.
— Betsy Woodruff is a William F. Buckley Fellow at the National Review Institute.