Hypocritical Lawmakers and their Lawsuits

As many of our readers are surely aware, the United States House of Representatives in the last week in July voted to approve Speaker John Boehner’s lawsuit against President Obama for allegedly exercising powers not granted to the highest office in the land. While we write about political matters from time to time, it is not the goal of this blog to decide whether or not the lawsuit has merit (but it is worth pointing out that President Obama has issued fewer executive orders than any president since Grover Cleveland in 1897). Rather, this seems like an apt time to point out the hypocrisy of many congressional leaders when it comes to filing suit in our country’s civil justice system.

As a story in Politico from spring 2011 begins, “For much of his political career, House Speaker John Boehner has railed against judicial over-reach and the harmful effects of excessive litigating. But while the congressman from Ohio […] ha[s] a long history of bashing trial lawyers, the speaker himself has shown that he can be quite the litigator.” The author of this story Richard E. Cohen, goes on to explain that despite his pledge to “rein in junk lawsuits” and his “hostility to us[e] the courts to achieve other policy goals,” Boehner has had no problem filing suit when it may prove beneficial for him–for both political and monetary reasons.

For example, Speaker Boehner “signed on and hired outside lawyers to back the controversial Defense of Marriage Act.” Though he doggedly resisted allowing gay and lesbian couples the right to marry several years ago, he “has [since] sought to downplay the gay rights debate” and instead establishes “his broader role as the paramount legislative leader.” He also wrote an amicus brief in protest of the Affordable Care Act that Cohen notes is “notable for its sweeping political rhetoric and assertion of his congressional influence.” Moreover, as Speaker of the House, Boehner is now in control of that chamber’s general counsel office, which “typically handles dozens of obscure legal cases involving Congress.”

As a private citizen, Boehner was a part of a suit that grew out of an ethics controversy involving former Speaker Newt Gingrich and Representative Jim McDermott (and a taped phone conversation involving all three), eventually winning an award of $1.2 million.

This willingness to file suit both as a legislator and as an individual is seemingly at odds with Boehner’s pro-business, anti-civil justice system stances in the past. Especially notable is his support for pharmaceutical and medical device manufacturers in his version of a health care bill in 2009. Joanne Doroshow notes that while the main text of the bill would have protected unsafe hospitals, abusive nursing homes, and insurance companies–hardly a stretch for American lawmakers–it would also have specifically provided immunity for makers of “drug[s], device[s], or biological product[s] intended for humans.”

The case of John Boehner is emblematic of the broader relationship between American legislators and the courts: they will use the civil justice system to their advantage when it is beneficial for them, but denounce the courts as useless and wasteful when their political opponents try to do the same.