Stephanie Mencimer

Ryan Sponsored Abortion Bill That Would Make Romney's Kids Criminals

Now that Mitt Romney has chosen Wisconsin Rep. Paul Ryan as his running mate, Ryan's long history as a culture warrior is getting a fresh look. Women's groups have already honed in on his extreme anti-abortion record, which consistently has earned him a 100 percent voting approval rating from the National Right to Life Committee.

In May, Romney's son Tagg became father of twin boys thanks to help from IVF and a surrogate mother. Tagg's son Jonathan was also produced this way. Two of Tagg's brothers reportedly have struggled with infertility issues and resorted to IVF as well. It's hard to imagine that Romney will score any points with voters by tapping a running mate whose anti-abortion views are so extreme that Romney's own kids can't live with them.

Ryan's position on IVF might give President Obama an opening for attack: While Romney's running mate has advocated criminalizing a procedure that has brought untold joy to about 3 million families over the past three decades, Democrats might be able to claim credit for making advanced infertility treatments available to the vast majority of Americans who can't afford them. Currently, most health insurance plans don't cover infertility treatment, so IVF and other advanced baby-making technology is mostly available to rich people—like the Romney boys.

One estimate puts the cost of Tagg Romney's new twins at more than $60,000, a price tag that puts IVF (and surrogate moms) totally out of reach for the average infertile couple. But Obamacare could change all that. The Department of Health and Human Services is currently drafting what's known as the Essential Health Benefits Plan, a collection of conditions and other medical care that many insurance companies will be required to cover. There's currently a push to have infertility treatments included as an essential benefit. Down the road, it's possible that Obamacare will not only help thousands of people take care of their children, but also help them conceive them in the first place. As campaign issues go, this one couldn't present a starker contrast. The supposedly pro-life GOP candidates want to turn infertile couples into criminals for trying to have a baby. The Democrats want to help them pay for it

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What Does Rupert Murdoch Want With America's Schools?

The following article first appeared in Mother Jones. For more great content from Mother Jones, sign up for their free email updates here.

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How the Tea Party Thinks Sustainable Development Is an International Conspiracy to Take Away Our Personal Freedoms

First, they took on the political establishment in Congress. Now, tea partiers have trained their sights on a new and insidious target: local planning and zoning commissions, which activists believe are carrying out a global conspiracy to trample American liberties and force citizens into Orwellian "human habitation zones."

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Will War Between the Religious Right and Libertarians Tear the Tea Party Apart?

In the months leading up to the midterm congressional elections, the tea party movement managed to tamp down on its internal divisions in pursuit of a shared goal of defeating Democrats. But with the elections over, the movement's fault lines are starting to show, and tensions between the tea party's social conservative and libertarian wings are poised to explode into an all-out civil war.

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Tea Party Leader Lashes Out Against Christine O'Donnell: "She's a Loser"

Christine O'Donnell's GOP Senate primary upset over Rep. Mike Castle in Delaware last week has the media buzzing about how the tea party movement is overthrowing the established order of things -- at least for Republicans. But while O'Donnell may be labeled as a "tea party" candidate, the movement is far from a monolith, and there are some in its ranks who aren't all that thrilled to be associated with her.

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Powder Keg? Glenn Beck Groupies, Oath Keepers and Tea Partiers to Collide with Black Family Reunion

What do you get when you mix thousands of tea partiers with tens of thousands of black families on the National Mall? We'll find out on September 11.

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Tea Party Travel Agents Duke It out for Protest Business

Tea Party marches on Washington have gotten so big and unwieldy that the grassroots conservative movement has spawned its own travel agents. And the business is cutthroat -- sparking a clash between tea party entrepreneurs replete with allegations of slander, backstabbing, and threats of legal action.

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Tea Parties Racked By Infighting, Confusion and Dissent

The tea party movement is not just a political juggernaut -- it's also become a big business. That quickly became clear following last September's unexpectedly enormous rally in Washington organized by Dick Armey's FreedomWorks, the event that helped put the movement on the map. With crowd estimates ranging from 75,000 to 2 million, the rally was such a hit that conservative activists are planning a sequel this year. A bunch of them actually. And these competing events have led to confusion and infighting among the tea party faithful. The conflict has reached such a pitch that Glenn Beck weighed in with a plea for unity on his radio show Thursday. "I don't care who started it," he lectured. "We must come together."

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In Kagan's Supreme Court Hearings, GOP's Line of Questioning Panders to the Tea Party Crowd

Supreme Court nominee Elena Kagan may become the first modern justice whose vetting was designed to placate people in tricorne hats. Her three-day, nationally televised comfirmation hearings gave Republican members of the Senate Judiciary Committee lots of air time to pander to their constituents back home. And it was clear from the get-go that their talking points weren't intended to elicit Kagan's legal philosophy (they knew she was a liberal, after all) but rather to convince the unruly tea party movement that incumbent GOP senators are the standard-bearers of constitutional conservatism.

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Does BP Plan to Rip Off the Families of Killed Rig Workers?

After a BP refinery in Texas exploded in 2005, killing 15 workers and injuring scores more, the oil giant paid $1.6 billion in settlements to employees and their families. But the families of the workers killed on BP's Deepwater Horizon rig in the Gulf of Mexico probably won't receive a similar windfall. That’s because the Deepwater rig is legally considered an ocean-going vessel, and was more three nautical miles offshore at the time of the accident. As a result, the families of the dead workers can only sue BP and its contractors under a 90-year-old maritime law, the Death on the High Seas Act, which severely limits liability. In some cases, BP could get away with shelling out sums as paltry as $1,000.

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Obscure Law Could Cost Hillary Clinton Her Cabinet Post

Ever since Barack Obama started running for the White House, he's been plagued by lawsuits from detractors who claim that he is not a natural-born citizen, and thus is ineligible to serve as president. Now the devoted conspiracy theorists of the so-called "eligibility movement" have a fresh target: Secretary of State Hillary Clinton. And there's a chance that the Supreme Court might hear their challenge.

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KBR Calls Former Employee Jamie Leigh Jones, Who Was Gang Raped By Co-Workers, A Liar

Ever since its contract employee Jamie Leigh Jones went public with allegations that in 2005, she was drugged and gang raped by some of her co-workers in Iraq and then detained in a storage container, KBR/Halliburton has fought her efforts to sue in a public courtroom. Jones had been forced to sign a mandatory arbitration agreement as part of her employment contract, which required her to bring any work-related claims before a private arbitrator hired by KBR rather than a jury. Jones fought the agreement and in September, prevailed in one of the most conservative federal appeals courts in the country. Her story persuaded Sen. Al Franken (D-MN) to pass legislation to ban defense contractors from using arbitration agreements in cases of sexual assault.

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Conservative Activists Furious at GOP Consultants Hijacking Tea Party Name

Would a true Tea Party patriot drop nearly $1,600 in donor money for a small meal at a fancy steakhouse? Robin Stublen says no, and he's mad as hell about the profligate expenditures of a GOP political organization that has glommed on to his grassroots movement. Stublen is the organizer of the Punta Gorda, Florida, Tea Party and a member of Tea Party Patriots, a national grassroots organization that has no offices, no president, raises virtually no money, operates largely on volunteer efforts, and, most importantly, doesn't endorse candidates. But unbeknownst to many, there's another outfit claiming ownership of this conservative movement. It's called the Tea Party Express, and it has dominated Fox News coverage over the past year with its multi-state bus tours and political rallies.

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Despicable: Right-Wing Group Selling Homophobic "Barney Frank Fruitcake"

Ah, 'tis the season for right-wing nuttiness. Black Friday has unleashed a barrage of racist and homophobic political offerings available to stuff this year's stockings. Today's selections:

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Anti-Abortion Group to Protest Palin

When she was running for governor of Alaska in 2006, Sarah Palin reportedly said that even if her then-14-year-old daughter were raped, she would "choose life" and force her to bear a child. Comments like that that have endeared the fiery Alaskan politician to most pro-life voters, who lionized her for not aborting her Down's Syndrome baby. But Trig isn’t enough to protect Palin from a phalanx of anti-abortion activists who plan to protest her appearance on Thursday to promote her book in the conservative heartland of Indiana. Their reason? They think she's not really pro-life.

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Is the Right-Wing Tea Party Kettle Starting to Losing Its Steam?

The tea partiers are launching the revolution. This week. But will anyone actually show up?
On Sunday, Rep. Michele Bachmann challenged viewers of Sean Hannity’s Fox News show to join her last-ditch attempt to kill health care reform. The fiery Minnesota Republican plans to hold a press conference at "high noon" today. She urged Americans to flood the halls of Congress that day, find their elected officials, "look at the whites of their eyes and tell them, 'don't you dare take away my health care.'"
Since then, so-called tea party patriots have been burning up the Internets trying to rally supporters to attend Bachmann’s event. But so far, their efforts haven't amounted to much. The official Tea Party Patriots website laments that Bachmann’s rally is being stymied by a "media blackout"—meaning that mainstream outlets like the New York Times and the Washington Post have ignored it.

The lack of media interest could stem from the tea partiers’ failure to mobilize as a genuine grassroots political force. In preparation for Bachmann’s press conference, the patriots devised a "three phase attack" on Congress called "Operation House Call." The idea was for tea partiers to call, email, fax and visit key lawmakers, starting at 1:30 on Tuesday afternoon.

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Why Is Obama Backing Bank of America in Court?

Now that the Obama administration is a shareholder in Bank of America, will it protect the interests of the bailed-out bank or those of customers targeted by its predatory practices? It's a difficult calculation, and one the administration soon has to make as a class action suit against BoA lands in a state supreme court.

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Why You Can't Buy a New Car Online

Americans can buy virtually anything over the Internet these days -- sex, booze, houses -- everything, that is, but a new car. If you want to buy a new Ford Fusion, you have to go down to your local dealership and haggle with the car salesmen, an unpleasant and daunting task. The process usually subjects consumers to hours in the dealership hotbox and can add hundreds, if not thousands, of dollars to the price of the car. Wouldn't it be nice if you could cut out the middleman and just order your Prius straight from Toyota?

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W's Worst Judges

Over the past eight years, Bush has installed 310 federal judges -- two of them to the highest court in the land -- whose influence will be felt for many years. Here are some to keep an eye on, along with their more notable rulings before and after elevation.

1. WILLIAM H. PRYOR JR.,11th Circuit
Precedent: As Alabama's attorney general, he defended the state's practice of handcuffing prison inmates to hitching posts.
Case closed: Voted to uphold an Anita Bryant-era Florida law prohibiting gays and lesbians from adopting children -- even when they've served as their foster parents.

2. PRISCILLA OWEN, 5th Circuit
Precedent: Considered so conservative that Alberto Gonzales, her onetime colleague on the Texas Supreme Court, called one of her dissents (in an abortion case) "an unconscionable act of judicial activism."
Case closed: Reversed a $3.5 million malpractice verdict, saying the plaintiff should have spoken up sooner about her congestive heart failure, which was caused by a drug she was given during pregnancy. In his dissent, Reagan appointee Patrick Higginbotham accused Owen of imposing "tort reform by decree, not ballot."

3. JAY BYBEE, 9th Circuit
Precedent: As a top lawyer in the Bush Justice Department's Office of Legal Counsel, he issued an infamous memo finding that interrogation techniques are torture only if they are "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
Case closed: Voted to strike down a jury award for a San Diego police sergeant forced to quit after he was deployed to Iraq with the Navy Reserve.

Precedent: Deemed "not qualified" to sit on California's Supreme Court by a state bar association panel. (She was appointed anyway.)
Case closed: Argued that a woman coerced into having sex with her boss was not a harassment victim unless she had been punished, demoted or fired as a result.

5. D. BROOKS SMITH, 3rd Circuit
Precedent: Promised the Senate in 1988, when he was appointed to a federal trial court, that he would resign from an exclusive, men-only hunting club.
Case closed: He did not resign -- until he learned there was a vacancy on the 3rd Circuit.

6. WILLIAM RILEY, 8th Circuit
Precedent: Appointed directly from private practice, where he largely handled insurance defense cases.
Case closed: Earned a rep as Wal-Mart's favorite judge, siding in favor of the company in three discrimination lawsuits. Wrote the majority opinion in a case ruling that the Americans with Disabilities Act did not apply to a diabetic pharmacist fired by Wal-Mart because he needed to take a regular uninterrupted lunch break in order to inject insulin and eat a special diet.

Can a Prison Profiteer with No Court Experience Make a Good Trial Judge?

In October 2000, Dick Cheney faced off for a debate with Connecticut Sen. Joseph Lieberman. The 60-year-old Cheney appeared comfortable discussing the ins and outs of policy and made good-natured jokes about Lieberman's singing abilities, or lack thereof. Cheney's smooth performance reflected his many years in public service. But the aspiring vice president also had a strong debate-preparation team made up of longtime friends and GOP loyalists. Among them was Gustavus Adolphus Puryear IV, a legislative director for Tennessee senator Bill Frist, who was on contract with the Bush/Cheney campaign. Puryear apparently did such a good job prepping Cheney that he was called in again in 2004 to help him gear up for his debate with Democratic vice-presidential candidate John Edwards.

Puryear's efforts on behalf of the Bush administration paid off last June when the president nominated him to be a federal trial court judge for the Middle District of Tennessee. Puryear certainly isn't the first judicial nominee selected primarily for his political service, but still, his resume is remarkably thin on the practice of law, a basic prerequisite even for the best-connected political hacks.

Puryear got his start in politics in the mid-1990s working as counsel to the Senate Committee on Governmental Affairs, then chaired by Fred Thompson, as it investigated the Clinton fundraising scandals. From there he went to work for Frist. Beyond a brief stint in private practice for a corporate law firm when he was fresh out of law school, Puryear has spent more time inside an executive suite than a courtroom. And it's that corporate work that makes him an especially questionable candidate for the federal bench.

Puryear was in Washington last week for his confirmation hearing before the Senate Judiciary Committee, where Senators Arlen Specter (R.-Pa,) and Dianne Feinstein (D.-Ca.) both put his resume under a microscope, noting his conspicuous lack of trial experience. At one point Specter asked him point blank, "How many cases have you actually tried?" To which Puryear answered: Two. Indeed, according to his written questionnaire for the committee, of the two cases he has tried in the entirety of his legal career, he was lead counsel on one of them. The last time he litigated a case in federal court was more than a decade ago.

Puryear has spent the bulk of his legal career at the Tennessee-based Corrections Corporation of America, the nation's largest private prison company. As its general counsel since 2001, Puryear has made millions of dollars working for a company that profits from the country's incarceration boom, particularly through his recent sale of more than $3 million worth of the company's stock. (His financial disclosure form shows a net worth of more than $13 million.) His employer creates enormous conflicts for Puryear as a potential federal judge, as the CCA gets sued all the time, often in the very district where he hopes to preside as judge. Since 2000, roughly 260 cases have been filed in that court against the CCA, its officers, and subsidiaries.

In addition, Puryear's current job involves overseeing the CCA's defense against inmate litigation, a prison staple that he has publicly dismissed as a nuisance, even though such litigation has led to significant verdicts and settlements against the company. For instance, in 2000, a South Carolina jury hit the CCA with a $3 million verdict for abusing juveniles. Other successful suits have alleged that the company's employees abused inmates and provided negligent medical care. Yet in a quote he no doubt now regrets, in 2004 Puryear said that, "Litigation is an outlet for inmates. It's something they can do in their spare time." Inmate lawsuits typically account for more than 10 percent of the docket in Tennessee's Middle District, meaning that Puryear will see his share of them if he gets confirmed.

During his confirmation hearing last week, Puryear told the committee that he would recuse himself from any cases involving the CCA -- at least, he said, for some time after he's divested all of his stock in the company. He dismissed concerns about his conflict of interest by noting that the CCA cases make up a small part of the court's workload and that his recusals would not create problems for the other judges. But his promises to recuse still don't get to the heart of a fundamental conflict: To the CCA, inmates are a revenue stream warehoused at the cheapest price. This not exactly the view of the criminal justice system you want from a judge if you are a defendant.

A trial court judge in Tennessee's Middle District can expect to handle more than 60 criminal cases a year. Every person Puryear sends to prison is a potential money-maker for his former employer, which contracts with the federal government to manage 15 detention facilities, and also holds federal prisoners in other CCA institutions that house state and local prisoners when the need arises, according to Steve Owen, the company's director of marketing and communications. The number of inmates coming from Tennessee may be relatively small, but still, it seems fair to ask whether Puryear's conflict of interest runs so deep that he might have to recuse himself from criminal cases entirely.

Thus far, Puryear has largely escaped media scrutiny, as the activist groups that monitor the federal courts tend to focus mostly on appellate courts and the occasional Supreme Court battle rather than on trial court nominees. Puryear's CV also doesn't signal fights on many of the hot-button social issues that usually set off a confirmation battle. He doesn't sound -- or look -- like Robert Bork. He's young, patrician, a model member of the exclusive Belle Meade Country Club, and director of the Antiques & Garden Show of Nashville. But for his deep voice he could be Niles on "Frasier." Nonetheless, Puryear might be in for an unexpected fight, due in part to his decision to publicly dis jailhouse lawyers.

Alex Friedmann was one of those jailhouse lawyers. He spent six years inside one of the CCA's prisons in Tennessee for attempted murder and armed robbery. Friedmann actually sued the CCA while incarcerated for retaliating against him for his comments to a reporter for The Nation. Representing himself, he took another case all the way to a jury trial, where he mostly lost, though he won a default judgment against a former unit manager. He also appealed a different case against the state, over censorship, that went all the way to the Sixth Circuit court of appeals where he won. "In that regard, I'm more qualified than [Puryear] is," he observes, noting that Puryear isn't even admitted to practice in the Sixth Circuit.

Now out of prison nine years, Friedmann is an editor for Prison Legal News, which is how he first learned about Puryear's nomination. After doing a little checking on him, Friedmann ran across Puryear's quote about inmate litigation, which didn't sit too well with him, and he set out to torpedo Puryear's nomination. As a former CCA inmate and a board member of a Florida nonprofit group that opposes prison privatization, Friedmann readily admits that he's not a disinterested party in the nomination battle. Nonetheless, his political instincts are sound. He is cobbling together a coalition to oppose Puryear's nomination, including the American Federal State and Municipal Employees Union, which opposes private prisons for their anti-labor positions. Friedmann's currently at work trying to enlist the real powerhouse of liberal judicial activists to join the coalition: women's groups.

Friedmann has compiled stats from the federal court docket on the CCA's lawsuit history in order to highlight the potential conflicts of interest Puryear might face, and he picked apart Puryear's resume and his responses to the Senate Judiciary Committee's questions last week. For instance, when pressed on his view of criminal defendants and prison inmates, Puryear pointed to his service as a commissioner on the National Prison Rape Elimination Commission. Skeptical, Friedmann checked out Puryear's attendance record with the commission. He says the commission held eight public hearings between 2005 and 2007 -- and Puryear missed at least four of them. "If the gentleman does have a genuine concern about inmates, why did he miss half the meetings?" he asks.

Friedmann is also raising significant questions about Puryear's response to questions about the death of a female inmate at the CCA's facility in Nashville. The medical examiner ruled that 34-year-old Estelle Richardson was beaten to death while in the company's custody. She suffered a skull fracture, broken ribs, and liver damage. Prosecutors indicted four CCA guards in 2005, but later dropped the charges after being unable to determine the time of death. So far, no one has been held responsible for Richardson's death, although the CCA settled a private lawsuit filed by her family.

When Sen. Feinstein asked Puryear about the case, Puryear disputed the medical examiner's findings and claimed that Richardson's death might not have been a homicide at all. He suggested that the broken ribs and liver injury may have been caused by CPR. It's "common" for people to suffer such injuries from CPR, Puryear said, to which a dumbfounded Feinstein exclaimed, "Common?" Apparently not satisfied with Puryear's answers, Feinstein asked him to provide the committee with further written information about the case.

Meanwhile, after the hearing, Friedmann called the Tennessee medical examiner who worked the case, who he says reaffirmed the original finding that Robinson's death was a homicide and that there was nothing to suggest her injuries were caused by resuscitation efforts. Friedmann also spoke with the lawyers who represented Richardson's family and he says that they told him that the CCA never raised CPR injuries as a defense in the litigation. Puryear's comments to the committee, says Freidmann, are "not supported by the medical record," which makes him skeptical about Puryear's judgment as a lawyer -- and his credibility.

Friedmann seems to recognize that prison inmates are not the stuff of judicial confirmation fights, so he has also homed in on another issue that might provide more traction, not to mention the interest of powerful women's groups: Puryear's country club.

The tony Belle Meade Country Club in Nashville is so exclusive that you have to be a member just to access its website. It didn't admit a single black member until 1994, a racist history so potent that even Puryear's mentor, former Senate Majority Leader Bill Frist, quit the club in 1993 when he first ran for office. While Belle Meade admits women, Friedmann has heard that it still won't give "lady members" voting rights. (Troy Cunningham, the controller of the club for the past 17 years, wouldn't respond to questions about women's voting rights, saying that "all questions flow through the members," meaning that someone will have to put the question to Puryear himself.) But if Friedmann can stir up controversy over Puryear's country club membership, he might actually have a shot at scuttling his nomination.

The Supreme Court Forgets the Little People

The line forms early on Friday mornings at Foundry United Methodist Church, a nearly 200-year-old institution located a few blocks from the White House. Famous in some circles as Bill Clinton's church, among the city's down and out, Foundry is better known as one of the few places around that offer help securing a government-issued photo identification.

Two weeks ago, Deborah Killebrew, 58, was one of those queued up outside the church to pick up a copy of her birth certificate, which Foundry volunteers had helped her obtain. Six years ago, Killebrew was hit by a drunk driver. Her fiance was killed in the crash, and she was left with cervical spine injuries that eventually put her in a wheelchair. After a string of bad luck, she wound up living in a D.C. homeless shelter. Somewhere along the way, she lost her expired Virginia driver's license. Killebrew was unable to get a new one because she didn't have an official copy of her birth certificate from the state of Indiana, where she was born. But to get her birth certificate, Killebrew had to send the state a copy of her driver's license or a stack of other documents -- like a car registration or mortgage document -- that she also didn't have. Eventually, she just gave up until she was referred to Foundry.

Without a photo ID, Killebrew may not be able to drive or apply for food stamps, but here in D.C., one thing she can do is vote, which she does regularly. If she still lived in Indiana, though, she'd be out of luck. Two days before she arrived at Foundry to claim her birth certificate, the U.S. Supreme Court heard oral arguments in a lawsuit over a strict new Indiana law requiring all voters to show a government-issued photo ID before casting a ballot. The plaintiffs argued that the law was an unconstitutional burden on voters, particularly minority, poor and elderly voters, who are the least likely to have the requisite ID. The law does allow people without an ID to cast a provisional ballot, but it won't get counted until the voter turns up at a county clerk's office to present identification.

If the justices rule against the plaintiffs, they will clear the way for other states to implement similar laws restricting voting rights for the less fortunate. Judging from the oral arguments in Crawford v. Marion County Elections Board, that's just what the justices are poised to do. While John Roberts worked at a steel mill during college, and Clarence Thomas came up dirt-poor in Pin Point, Ga., the Supreme Court of late hasn't shown much interest in people like Killebrew who reside at the bottom of the economic food chain. The court's docket is increasingly dominated by business litigation -- patent challenges, anti-trust suits and attempts by big businesses to insulate themselves from all sorts of legal liability and litigation brought by their employees, investors or aggrieved customers. The U.S. Chamber of Commerce recently bragged that it had its best year yet before the high court in 2007, racking up a string of impressive victories for big business that even surpassed the chamber's record-breaking year in 2006.

Topped off by last week's decision in Stoneridge Investment Partners v. Scientific Atlanta, which sharply restricted the ability of shareholders to sue entities that abet corporate fraud, recent winners before the Supreme Court have included Enron and the banks that facilitated its scam, payday lenders, investment banks that engage in price fixing and tobacco companies, among others. Losers have been small investors, poor black schoolchildren, working-class women paid less than men -- and one kid who was paralyzed after a police officer rammed his car because he was speeding.

Not only are "the people" losing at a rapid clip when they come before the court, but it has gotten much, much harder for the average person to even get into court in the first place. Over the past two decades, Supreme Court decisions have quietly prevented a wide swath of the American population from even reaching the courthouse, much less prevailing there when they've challenged better-funded and more powerful interests. Lee Epstein, a professor at Northwestern law school, says that the court is "shutting down access to plaintiffs in all sorts of ways. The court seems to be saying 'stay out.'"

In the last term, the court ruled, for instance, that taxpayers had no right to challenge the federal government's use of tax dollars to pay for religious-based social services. The case overturned years of precedent giving people a say in how their money is spent if it seems to mix too much church with state business. In a complicated anti-trust case, the court basically rewrote the rules for filing a civil lawsuit, making it harder for plaintiffs to even get into a courtroom under the guise of protecting business from allegedly frivolous lawsuits.

Many civil rights lawsuits are brought by private individuals rather than the government through agencies like the Equal Employment Opportunity Commission, making them the primary mode of enforcing anti-discrimination laws passed by Congress. Yet the Supreme Court has moved to sharply limit such lawsuits through decisions that, for instance, restrict the awarding of attorneys fees to plaintiffs so that lawyers can no longer afford to bring such cases.

Epstein says that while it's true many of these decisions break down along ideological lines, some of rulings also may stem from the justices' personal backgrounds. Never has the Supreme Court been more homogeneous, she says, noting that race and gender aside, the range of professional experience of the current court is extremely limited. All of the current justices came straight from the federal appeals courts, she points out, and most spent the bulk of their careers in government service or academia. Today's sitting justices are even geographically homogeneous, having lived most of their adult lives in Washington or other nearby East Coast metro centers. Before they were appointed, Epstein says, "Most of these people could have taken the Metro or Amtrak to get to work."

At least with Sandra Day O'Connor on the court, Epstein says, there was not just a female voice, but someone from the West who had a different background from the other justices. O'Connor had been an Arizona state legislator and served as an elected trial court judge in Maricopa County. Epstein suggests that some of the court's rulings in recent years may have as much to do with the justices' service on appellate courts as ideology. None of them has much experience as private-practice litigators or trial judges, where they would be forced to look the plaintiffs in the eye and hear their stories. Epstein believes that the current crop of justices is inclined to think that "the judges below them get it right."

The insular experience of the Supreme Court justices seems to be spilling over into their decision making in a way that goes beyond partisan politics. Indeed, some of the more arcane business cases, which will nonetheless have a profound impact on such things as consumer protection, were decided by majorities that included Clinton appointees. All of the justices seem reluctant to do anything that might mess with business too much, even when those businesses could use some messing with.

In Watters v. Wachovia last year, for instance, Ruth Bader Ginsburg, a former ACLU lawyer, wrote the opinion for a majority that also included liberal Steven Breyer in a case that declared that states have no right to regulate the operating subsidiaries of national banks. On its face, this might sound like no big deal, until you recognize that some of those operating subsidiaries were engaged in subprime and other shady mortgage lending that's now wreaking havoc on the economy. The states had attempted to step in to combat some of the fraud at work long before the feds even noticed there was a problem.

But the court's liberals deferred to the federal banking regulators in the Office of the Comptroller of the Currency. The decision was a huge victory for the banks, leaving their subsidiaries largely immune to regulation or lawsuits based on state consumer protection laws.

Ginsburg and Breyer also came down with the majority in a decision that upheld the use of mandatory-arbitration clauses in contracts for services that are themselves against the law. In Buckeye Check Cashing v. Cardegna, the court said a consumer could be forced to arbitrate a dispute with a payday lender rather than go to court even though payday lending is illegal in Florida, where the case originated.

During the oral arguments, Breyer expressed concern that if the court ruled for the consumer, businesses might suffer because so many of them now use mandatory arbitration to keep people out of court. He seemed to believe that letting people go to court would somehow lead to economic ruin, even when they were suing companies that had defrauded them. "I wouldn't want to reach a decision … that would make a significant negative difference in the gross national product of the United States," Breyer said. The case greatly expanded the number of people who can no longer bring their consumer disputes before a judge or jury.

Despite a few of these sorts of decisions, it is still the conservatives on the court who seem to be most out of touch with the people who will be affected by their rulings. The oral arguments during the Indiana voter ID case serve as a case in point. There was Chief Justice John Roberts Jr. with his movie-star good looks and a smile and smoothness that seemed so reasonable and reassuring during his confirmation hearings. And yet, during the oral arguments, Roberts couldn't have been more dismissive of the plight of poor and minority voters at the heart of the case. Like the other conservatives, Roberts, who earned $1 million a year in private practice, couldn't seem to fathom that there are people in this country who don't have a photo ID. When informed that a voter who didn't have an ID would have to travel to a county clerk's office to provide addition documentation for her vote to be counted, Roberts quipped that in his home state of Indiana, county clerk's offices weren't too far apart.

The plaintiffs' lawyer, Paul Smith, countered that for a poor person living in Gary, Ind., the county clerk's office was quite a schlep, 17 miles. ("Seventeen miles is 17 miles for the rich and the poor," Antonin Scalia chimed in.) Smith gently reminded the justices that the people he was talking about didn't have driver's licenses. That's why they couldn't vote at their local polling places. For them, getting to the clerk's office would require using public transportation, which, anyone who's ever spent much time on public transit would surely know, gets less and less frequent and reliable the farther you have to travel.

What was striking about the exchange between Smith and Roberts, though, wasn't just Roberts' unfamiliarity with riding the bus, but his lack of any apparent understanding of the lives of people on the lower end of the economic spectrum. In this regard, Roberts is not alone on the court. It's clear that many of the justices would rather not see these sorts of folks appearing on their docket at all. Simon Lazarus, public policy counsel at the National Senior Citizens Law Center, calls it the "arrogant abstractness" that predominates the court today.

The court's overt hostility to average- or low-income people is in itself keeping people out of court. One possible reason the Supreme Court docket is so crowded with business cases is that liberal public interest lawyers are avoiding it, says John Bouman, the president of the Sargent Shriver National Center on Poverty Law. "There's very little empathy on the court," he says, and as a result "people are showing restraint as to whether to take things up at all."

The change in the docket may only reinforce the court's ivory-tower qualities. The fewer everyday people who make their cases in court, the fewer opportunities the justices will have to let their perceptions evolve. One of the selling points of lifetime tenure for Supreme Court justices is that it can free them from politics and allow them to focus on the law and the facts of the cases before them. It is supposed to allow for evolution, which has been known to happen. Justice John Paul Stevens, now the last remaining reliable liberal on the court, is himself a Republican appointee nominated by Gerald Ford. His views on such hot-button issues as affirmative action and obscenity have changed during his many years on the court. Even former Chief Justice Rehnquist, who as a law clerk once wrote that he thought Plessy v. Ferguson, the case upholding racial segregation, ought to be reaffirmed, eventually came to champion Brown v. Board of Education.

But you do have to wonder about the current crop of young conservatives like Roberts. Insulated from the real world through an adult life of privilege, insulated from actual people by years of conservative legal rulings, it's hard to see where the opportunities for growth will come from. As Arthur Bryant, the executive director of Public Justice, a public-interest law firm, says, "Our system of justice cannot do justice if people cannot get into court."

Will Dems Protect Americans' Right to Sue?

The midterm election returns were barely in before the U.S. Chamber of Commerce started running ads encouraging Democrats to take up where Republicans left off. Their issue wasn't a business staple like lower taxes, smaller government or even illegal immigration. Instead, the nation's biggest business lobby was calling on Democrats to fix "America's lawsuit crisis." The ads promoted the chamber's latest poll, which claimed that 85 percent of people who voted in the midterm elections think frivolous lawsuits are a serious problem and want the next Congress to do something about it. Helpfully, the ad suggests Democrats could improve their standing with swing voters by embracing this "bipartisan" issue.

The ads were just a sign that as much as the election changed the political climate, many things will stay the same. Restrictions on lawsuits, or "tort reform," have been a staple of Republican politics since the 1994 Contract with America. In the past two years, the GOP-led Congress has passed restrictions on class-action litigation and immunized favored industries from fast food companies to gun manufacturers to protect them from lawsuits. At the same time, state legislatures have capped awards in malpractice lawsuits and Republican state court judges have all but eliminated punitive damages in many states.

Conventional wisdom holds that the Democratic takeover of Congress and many state capitals threatens to bring all that "reform" to a grinding halt. The conventional wisdom, though, doesn't take into account just how many lobbyists have come to depend on this issue living another day. Consider that in 2005, more than 100 big corporations employed 475 lobbyists -- nearly one for every member of Congress -- to pass the Class Action Fairness Act, which forced most class actions into federal court where business thought they'd get more favorable treatment. The U.S. Chamber of Commerce alone spent $60 million lobbying for the bill. With that kind of money at stake, the tort reform industrial complex is likely to ensure that while the battle over medical malpractice lawsuits might go dormant, the larger movement to restrict lawsuits -- and bash the lawyers who bring them -- will not go away.

A few legal reform think-tankers, like the Manhattan Institute's Walter Olson, believe it's possible that some issues -- such as the creation of an asbestos victims' trust fund that would end asbestos litigation -- might fare better in the Democratic Congress than it did under a Republican one. Other legal reform issues will also find a friendly audience among Democrats. Big businesses have already hired a handful of veteran and Democratic tort reform lobbyists to push for legislation that would cap damages and force the loser to pay the other side's legal bills in patent infringement lawsuits. Democratic Sen. Chuck Schumer has indicated sympathy for more legislation restricting shareholders' litigation. Of course, these bloodless battles rarely generate the emotional fights like those over medical malpractice lawsuits or product liability litigation. Nonetheless, they'll ensure that legal reform lobbyists won't have to give up their skyboxes at FedEx field just yet.

Just because Democrats have retaken Congress doesn't mean that the attacks on consumer legal rights will disappear, either. They may just come in different packages. For instance, mortgage lenders have been pushing federal legislation that, on its face, looks like a measure to crack down on predatory lending. In fact, it's simply designed to overrule stricter state laws that allow victims to sue over abusive mortgage practices. Democrat Barney Frank has already suggested he would support such a bill.

Despite large Democratic gains, most state legislatures probably haven't seen the last of the tort reformers, either. Indeed, the American Tort Reform Association recently launched its latest campaign against "abusive state consumer protection laws." These "abusive" statutes enable individuals to sue over relatively small amounts of money by allowing plaintiffs to win treble damages and attorneys fees in consumer protection lawsuits. Notably, these unfair and deceptive trade practices laws have provided the basis for some big lawsuits, such as those against tobacco companies for fraudulently marketing "light" cigarettes as safer than regular ones. Tobacco companies have been one of association's major funders.

Whether the campaign will get much traction among Democrats remains to be seen. One thing is certain, though: So long as Americans continue to exercise their right to sue when they've been injured, financially or otherwise, the folks on the receiving end will continue fighting to restrict those suits, regardless of who's in charge.

The Myth of America's 'Lawsuit Crisis'

Last December, Newsweek featured a cover package by Stuart Taylor and Evan Thomas that blared: "Lawsuit Hell: Doctors. Teachers. Coaches. Ministers. They all share a common fear: being sued on the job." Paired with a weeklong tie-in on NBC News and online chats on, the article claimed that because "Americans will sue each other at the slightest provocation," the country is suffering from an "onslaught of litigation" that costs Americans $200 billion a year. The story was full of tales claiming to illustrate Americans' overarching sense of legal entitlement and desire to "win a jackpot from a system that allows sympathetic juries to award plaintiffs not just real damages�but millions more for the impossible-to-measure 'pain and suffering' and highly arbitrary 'punitive damages.'"

Among others, the story featured a softball tournament organizer, a minister, and a doctor who all claimed to have modified their behavior because they were terrified of lawsuits. Ryan Warner, an insurance salesman in Page, Ariz., told Newsweek that he had recently cancelled an annual charity softball tournament because an injured player had sued the city of Page for $100,000. Warner said that he worried he might be added as a defendant.

The story as published, though, lacks a few critical details. Newsweek didn't mention, for instance, that the 1997 federal Volunteer Protection Act ensures that people like Warner are immunized from these types of lawsuits. The article also excluded the injured man, Richard Sawyer, a locomotive engineer who suffered a dislocated ankle and a spiral fracture to the fibula – and missed months of work as a result – after he slid into a base that was supposed to break away on impact but didn't because the city hadn't followed the manufacturer's instructions for maintaining these fixtures properly, according to Kevin Garrison, Sawyer's lawyer.

The event organizers had insurance – required by the city – to protect against exactly this kind of situation, but Warner cancelled the tournament anyway because he says the lawsuit was "a hassle." Canceling the tournament proved a smart PR move, as it brought out an immense amount of pressure on Sawyer to drop his suit, says Garrison. The case was settled this January for an undisclosed amount and Warner was never named. In fact, the tournament has been revived and scheduled for early September.

Not only were the particulars of the Newsweek story misleading. The essence of the story was wrong, too. Newsweek's "onslaught" of lawsuits simply hasn't happened. According to the National Center for State Courts, a research group funded by state courts, personal injury and other tort filings, when controlled for population growth, have declined nationally by 8 percent since the 1975, and have been falling steadily in real numbers since 1996. The numbers are even more dramatic in places with rapid population growth, like Texas, where the rate of tort filings fell 37 percent between 1990 and 2000. Even in liberal California, the rate of filings has plummeted 45 percent over the past decade. And those overly sympathetic juries Newsweek derides as so eager to dole out big bucks to injured victims?

In 2001, they voted against plaintiffs in 75 percent of all medical malpractice trials, according to the federal government's Bureau of Justice Statistics (BJS).

In an interview, Taylor dismisses these numbers as insignificant compared with the tort system's $200 billion drag on the economy. "The costs of the tort system to society have gone up astronomically," he says. That figure, though, comes from the insurance-industry consulting firm Tillinghast-Towers Perrin (TTP), which includes in its definition of the "tort system" insurance company administrative costs and overhead and the salaries of highly paid insurance company CEOs (Maurice "Hank" Greenberg, chairman of AIG, one of the world's largest insurance companies, makes $29 million a year). One thing TTP doesn't include: court budgets, which makes its study seem a lot more like an assessment of the insurance industry than of the legal system.

It's not as though Newsweek wasn't aware of these facts. On Friday, Dec. 5, a day before the story went to press, Taylor contacted the Association of Trial Lawyers of America (ATLA) for a quote. ATLA relayed the request to the nonprofit Center for Justice and Democracy (CJD), whose director, Joanne Doroshow, emailed Taylor information that contradicted some of the assertions in the story, including the state court data and a critique of the TTP study. (Doroshow provided the entire email exchange to The Washington Monthly.) Taylor dismissed it all, telling Doroshow, "Based on your many emails to me over the past 24 hours, you have very little thoughtful analysis to contribute to that debate."

Taylor did, however, take lots of his information from Philip K. Howard, the founder of Common Good, a group funded by corporations and physicians seeking to limit their legal liability for wrongdoing. Common Good's agenda includes advocating for legislation that would end the civil jury's role in many lawsuits. To advance the cause, Common Good helps reporters generate anti-lawsuit articles by distributing colorful litigation horror stories from around the country – the story from the Arizona Sun about Warner's softball tournament, for instance, was linked on Common Good's Web site a few months before the Newsweek story appeared.

Incidentally, Howard also works for the law firm of Covington & Burling, which represents Newsweek's parent company. Post-Newsweek Inc. has been sued a number of times for employment discrimination and was hit with an $8.3 million verdict in 1999, a fact that Newsweek didn't mention in the story.

Unfortunately, Newsweek's one-sided coverage of the civil justice system is the rule, not the exception. Every few months, one or another newspaper, magazine, or television show does a story just like it. They all hew to a standard line, starting with a juicy but misleading – or even fictitious – lawsuit horror story typically describing an irresponsible plaintiff, followed by "studies" on the economic damage of the tort system published by corporate front groups, finally ending with calls for "reforms" to rein in mushy-headed juries and greedy trial lawyers. Such skewed coverage represents a victory in a sustained, 50-year public relations assault on the civil justice system by the insurance industry, tobacco companies, and other corporate giants. It's helped fuel political support for curtailing Americans' right to hold corporations and individuals accountable for negligence, fraud, and other malfeasance in court. Perhaps more serious, journalists' willingness to perpetuate anti-lawsuit propaganda has gravely jeopardized Americans' unique democratic right to participate on civil juries.

Runaway Hedge-clippers

The current PR campaign by the insurance industry and other big corporations is just the latest iteration of a long fight tracing back to the 1950s. That was when plaintiffs' lawyers started breaking down some of the legal barriers that had long protected industry from responsibility for injuries to workers and consumers and opened up jury pools to make them more representative of the general public. The blood bath on the nation's highways during the post-war auto boom also created a whole new arena of litigation over who should pay for the injuries and deaths caused in car accidents. Auto insurance companies were frequently in the middle of these disputes (as they are today; insurance companies are the defendants in 90 percent of all auto-accident lawsuits).

With their profits threatened by unfavorable jury verdicts, the insurance industry started running anti-lawsuit ads targeted at jurors. For instance, in 1953, the industry ran ads in Life magazine and The Saturday Evening Post that declared, "ruled by emotion rather than facts, [jurors] arrive at unfounded or excessive awards – verdicts occasionally even higher than requested!" The ads implored potential jurors to remember that "you pay for liability and damage suit verdicts whether you are insured or not."

The industry also successfully planted articles in national magazines and TV shows that were designed to look like investigative reporting. In 1962, CBS broadcast "Smash-Up," a fictionalized docudrama that portrayed sleazy lawyers faking auto accident cases. The Insurance Information Institute, the industry's public relations arm, helped write the script. In 1977, the venerable insurance company Crum & Forester sponsored one of the first print ads that included what would become a staple of anti-lawsuit rhetoric: the fictional lawsuit horror story. The ad told the story of a guy who collected a $500,000 jury verdict after he was injured using a lawnmower as a hedge clipper. The agency later conceded that it had no factual basis for the story, but that didn't keep it from circulating widely in the media and in conservative political speeches.

The industry knew what it was doing. In 1979, Elizabeth Loftus, the famous memory researcher and University of California psychologist, tested the effects of this kind of advertising on potential jurors and their decision making in the jury box. At the time, the industry was spending $10 million on a series of ads in a host of national magazines. In an article in The American Bar Association Journal, Loftus reported that potential jurors who were exposed to even one insurance ad awarded much less for pain and suffering than those who weren't.

In the mid-1980s, with insurance companies hitting a slump, the insurance industry's "tort reform" movement, as it became known, broadened its emphasis. Instead of limiting itself to targeting individual jurors through mass media advertising, the industry began to heavily lobby legislators to restrict citizens' ability to sue. The movement pursued strict caps on damage awards, tougher standards for proving liability, and caps on plaintiffs' attorney fees. The industry's crusade was taken up by small government conservatives, who believed that tort reform paralleled their own efforts to fill the federal bench with pro-business jurists and roll back government regulations. They were also upset by changes in the 1960s and 1970s that broadened legal protections for women and minorities, such as the 1964 Civil Rights Act, and the expansion of product liability doctrines that made it easier for injured consumers to force companies to compensate them for faulty products. Politically, it was a lot easier to attack juries and trial lawyers than the popular consumer, civil rights, and environmental protection laws they enforced – or the injured victims they represented.

Advertising was a key component of those efforts. In 1986, Newsweek ran a series of ads sponsored by the insurance industry under the heading, "We all pay the price." The ads warned that lawsuits were driving ob/gyns out of business, shuttering local school sports programs, and scaring the clergy out of counseling their flocks – though few of these assertions turned out to be true. That same year, 1,600 tort reform measures were introduced in 44 state legislatures, 21 of which passed significant restrictions on lawsuits and jury awards before adjourning.

Tort reformers still weren't satisfied but were hamstrung by the fact that most Americans didn't see lawsuits as a huge problem. After all, most people never have any contact with the legal system unless they're getting divorced. So, a group of corporate leaders, including AIG's Greenberg, set about to change that by pumping money into right-wing think tanks to prepare a body of "evidence" proving that not only was there a crisis in the courthouse but also that "we all pay the price" as a result.

One of the most influential of those groups is the Manhattan Institute, founded by the late CIA director William Casey. In 1986, the institute created its Project on Civil Justice Reform with funding from all the same insurance companies who'd been responsible for circulating bogus lawsuit horror stories. The project was targeted specifically at journalists. In a 1992 memo, institute president William Hammett explained the strategy for molding reporters into a "pro-tort reform" position: "Journalists need copy, and it's an established fact that over time they'll 'bend' in the direction in which it flows. For that reason, it is imperative that a steady stream of understandable research, analysis, and commentary supporting the need for liability reform be produced. If sometime during the present decade, a consensus emerges in favor of serious judicial reform, it will be because millions of minds have been changed, and only one institution is powerful enough to bring that about: the combined force of the nation's print and broadcast media, the most potent instrument for public education – or miseducation – in existence."

Over the next decade, the institute produced a blizzard of reports, conferences, op-eds, books, and mailings all decrying the "litigation explosion" and greedy trial lawyers. They cultivated sympathetic and influential journalists such as "20/20"'s John Stossel, then-New Republic editor Michael Kinsley, and TNR columnist Fred Barnes, and more recently, Stuart Taylor, who frequently cites their work in his columns for Newsweek, The National Journal, and The Atlantic Monthly. The "research" conducted by the institute usually purported to show how lawsuits impact the average consumer's daily life by raising the cost of groceries or auto insurance or driving their favorite physicians out of business. But some of the institute's "scholars" played a little fast and loose with the facts.

Take the idea of a "tort tax," the financial hit allegedly taken by every citizen because of the legal system, which Taylor raised in his December Newsweek article. It dates back to 1988, when Manhattan Institute fellow Peter Huber coined the term in his book, Liability, and claimed that the tort system cost Americans $300 billion a year. Three years later, the figure made its way into a speech given by Vice President Dan Quayle, who blamed lawyers for wrecking the economy. After the speech, several researchers examined the methods Huber had used to arrive at that figure. Huber, they found, had simply made it up. As The Economist observed in 1992, "the $300 billion figure has no discernible connection to reality."

While the Manhattan Institute targeted the media elite, large corporations also set about creating the appearance of a "grassroots" movement to persuade lawmakers that tort reform had broad populist appeal. As Neal Cohen, one of the PR geniuses behind this project explained to a meeting of the Public Affairs Council in 1994, "In a tort reform battle, if State the leader of the coalition, you're not going to pass the bill. It is not credible. OK? Because it's so self-serving." Cohen was speaking from experience. Since 1988, he had been running Philip Morris's "family tort project" through the D.C. consulting firm APCO, where he helped the tobacco industry wage a multi-million stealth campaign to insulate itself from smokers' lawsuits. By 1995, the tobacco industry was providing almost half the budget – $5.5 million in a single year – for the American Tort Reform Association (ATRA).

ATRA, in turn, helped funnel money to state level organizations called Citizens Against Lawsuit Abuse (CALA). These chapters were responsible for holding "lawsuit abuse awareness week," buying ads on buses and billboards, providing experts for reporters, generating "polls" that claimed 99 percent of Americans believe there are too many frivolous lawsuits. The groups were hardly grass-roots organizations of inflamed citizens; the original chapter, in Weslaco, Texas, is just a shell corporation housed in the local chamber of commerce.

Even after the corporate backing of these groups came to light (thanks in part to Cohen's speech, a tape of which was obtained by some muckraking reporters), tort reformers have continuted to use variations of the technique. Most recently, doctors seeking to restrict medical malpractice lawsuits have worked with corporate front groups like Texans for Patient Access and Californians Allied for Patient Protection.

After 50 years and hundreds of millions of dollars spent convincing the public of a litigation crisis, the tort reformers have largely succeeded. There's very little that journalists won't repeat and readers won't swallow about the evils of the civil liability system.

The Lying Florists

In November 2002, viewers of "60 Minutes" learned that Fayette, Miss., was the nation's capital of "jackpot justice," a place where "plaintiffs' lawyers have found that juries in rural, impoverished places can be mighty sympathetic when one of their own goes up against a big, rich, multinational corporation." In the story, Morley Safer interviewed a local florist who had received a multi-million dollar settlement in a diet-drug lawsuit. The unnamed florist alleged that trial lawyers were bribing jurors to give big awards. "The jury awarded these people this money because they felt as if they were going to get a cut off of it," he told Safer.

During the broadcast, Safer interviewed Wyatt Emmerich, the publisher of a newspaper in Jackson, who explained a few big verdicts there by saying, "Look at the jurors. These are disenfranchised people. These are people who've been left out of the system, who feel like, 'Hey, stick it to the Yankee companies. Stick it to the insurance companies. Stick it to the pharmaceutical companies.' The African Americans feel like it's payback for disenfranchisement. And the rednecks, shall we say, it's like, 'Hey, you know, get back at' revenge for the Civil War. So there's a lot of resentment, a lot of class anger, a lot of racial anger. And it's very easy to weave this racial conflict and this class conflict into a big pot of money for the attorneys." The day after the program aired, the legislature passed new restrictions on lawsuits.

Tiny Jefferson County's national reputation as a "judicial hellhole" came in part from intense publicity from the American Tort Reform Association, which every year publishes a "study" purporting to identify various jurisdictions around the country it deems too plaintiff-friendly and in need of reform. At the time of the "60 Minutes" episode, the U.S. Chamber of Commerce's Institute for Legal Reform was spending millions nationally on advertising and lobbying for restrictions on citizens' rights to sue. At least $100,000 of that had recently gone into an advertising campaign in Mississippi to push for a cap on damages in lawsuits against corporations. Those facts weren't included in the story. Meanwhile, the florist, Beau Strittman, retracted his comments about the payoffs, telling the AP, "I just said it as a joking statement." CBS spokesman Kevin Tedesco said the network could not comment on the segment because several jurors have sued CBS for libel over the broadcast.

It wasn't the first time "60 Minutes" got duped in an anti-lawsuit segment. Back in 1986, the show profiled the owner of a ladder manufacturing company who claimed his company had been hit with a $300,000 jury verdict in a suit by a man who fell off a ladder because he set it in a pile of manure. The business owner claimed the lawsuit alleged the company should have warned buyers of the dangers of setting ladders in dung. The real lawsuit had nothing to do with manure; the ladder had broken with less than 450 pounds on it, even though it had a safety rating that said it could support up to 1,000. Tedesco says the show never ran a correction.

The print media, mostly opinion columnists, have proven even more gullible in publishing stories about lawsuits that are simply fictional. For instance, in June 2003, in a column entitled, "Welcome to Sue City, U.S.A.," U.S. News & World Report owner Mort Zuckerman claimed that "litigation has become our national pastime." As proof, he offered several examples of lawsuits that illustrated the nation's "enormous inflation of rights over responsibilities." Zuckerman wrote, "A woman throws a soft drink at her boyfriend at a restaurant, then slips on the floor she wet and breaks her tailbone. She sues. Bingo – a jury says the restaurant owes her $100,000! A woman tries to sneak through a restroom window at a nightclub to avoid paying the $3.50 cover charge. She falls, knocks out two front teeth, and sues. A jury awards her $12,000 for dental expenses."

The anecdotes were catchy. Unfortunately, they weren't true. The stories had been circulating in an email for two years and had made it into several mainstream news outlets, including another Zuckerman property, The New York Daily News, which had published an email containing one of the fake lawsuits in the sports section a year earlier (with no correction). When The Washington Post's Howard Kurtz called him on the U.S. News error, Zuckerman was unapologetic. The magazine only published a brief clarification about the fictional suits, which ended by saying, "Mr. Zuckerman continues to believe, and most Americans agree, that we live in a country where far too many frivolous lawsuits are filed each year." When contacted by The Washington Monthly, a spokesperson for Zuckerman refused to disclose the source of the lawsuit anecdotes or to offer an explanation as to why Zuckerman would publish anything from a spam email without checking it out first.

Small-town papers seem even more vulnerable to such fabrications than the national media, yet their impact is substantial, as battles over most tort reform laws are fought in state legislatures, and juries are drawn from local pools. For instance, in February last year, the Weirton Daily Times in Weirton, W. Va., published an editorial supporting tort reform and blaming juries for outrageous decisions in frivolous lawsuits. Among the examples was the story of an Oklahoma man who put his Winnebago on cruise control at 70 mph and "calmly left the driver's seat to go into the back and make himself a cup of coffee." Naturally, after the crash, the man sued Winnebago for not advising him of the dangers of cruise control. A jury awarded the man $1.75 million and a new motor home, the paper said. But it turned out that every one of the lawsuits mentioned in the Daily Times editorial stemmed from an anonymous email and was fiction. A local attorney, Michael Nogay, called Daily Times managing editor Richard Crofton and alerted him to the error. But rather than print a humble retraction, Crofton argued in print that the essence of the editorial was true and published several examples of "real" frivolous lawsuits. "What really killed me was that they didn't even say 'we're sorry,'" says Nogay, who notes that the column came a week or so after the state chamber of commerce had run a full-page ad in the paper calling for tort reform while the legislature was in session. When I asked what made him write about the suits without checking their veracity, Crofton says, "We're a small paper, and I don't have the resources to track down things all over the country."

The media mogul Steve Brill first wrote about litigation myths back in 1986, when, as a journalist he traced several examples of the allegedly "frivolous lawsuits" for The American Lawyer magazine and found that many of them were simply urban legends. He says, "I had gone back through the archives of Time magazine, and every ten years, Time declared a 'litigation crisis.' But there was no crisis." Reporters' perpetuation of the litigation myths has become one of Brill's pet peeves, even though, as a business owner himself, he supports legal changes that would protect businesses. "Reporters are basically lazy," says Brill. "You can always find a ridiculous lawsuit to make the system look crazy."

The $30,000 Jackpot

The plain fact is, most lawsuits are neither ridiculous nor lucrative. Despite the eye-popping headlines about billion-dollar fen-phen verdicts or David v. Goliath movies about little guys taking on corporate wrongdoers in court, the civil justice system looks a lot more like this: On Aug. 2, 1997, Bonnie Daniels rear-ended Diane Pitnikoff in Cumberland County, Maine, and was arrested for drunk driving. Pitnikoff suffered a number of lingering injuries and ran up $42,000 in medical bills. Pitnikoff sued Daniels for $100,000. On March 20, 2003, a jury voted in favor of Pitnikoff, awarding her a grand total of $21,000.

It's not a very sexy story – hardly the kind of thing that captures the imagination and lands on the cover of Newsweek. Yet most tort lawsuits in this country – nearly 60 percent – involve simple fender-benders, and the awards are generally quite small and getting smaller. New data released in April by the Justice Department's BJS show that in state courts, the median "jackpot" jury verdict in all tort suits was a mere $37,000 in 2001 – down from $65,000 in 1992.

And what of the undeserved billions in punitive damages that Newsweek says Americans win from sympathetic juries? Punitive damage awards are intended to punish wrongdoers for reprehensible conduct, and as a result, must be high enough to get the defendant's attention. That's why an Alaska jury hit Exxon with a $4.5 billion penalty in the wake of the Valdez spill. But such awards are so rare that, according to BJS, the median punitive damage award in 2001 was only $50,000. Only 7 percent of all plaintiffs were awarded $1 million or more.

Because the Justice Department data conflict so sharply with conventional wisdom, you'd think it would have been big news. The media coverage that resulted from the new government study? Forty words in the USA Today. As of mid-August, no major media outlet had covered the study, including Newsweek. National editor Tom Watson says that his magazine has a strict policy of not commenting on its own news coverage. "No one is willing to report that tort awards are down, and that they're 30,000 bucks, not 5 million," says Theodore Eisenberg, a Cornell University law school professor who does empirical research on the legal system.

Indeed, the tort reformers' message has proven remarkably resistant to correction. Part of the reason is that those who have another side of the story to present have vastly fewer resources with which to make their case. BJS has a publicity budget of zero dollars, making it tough for the bureau to publicize its remarkable findings. Trial lawyers, who do have some money, have been reluctant to fight back in the media because they recognize that they are universally mistrusted. They've picked their fight in the courthouse, where they challenge tort reform proposals as unconstitutional.

Tort reformers, too, have deftly manipulated reporters' weaknesses, like the over-reliance on the anecdotal lead. Editors are always imploring writers to find a perfect anecdote that can sum up a complicated problem in 40 words or less. This can be a useful tool for conveying information to a reader, but when it comes to something as complex as civil justice system, the technique often backfires because the juiciest anecdotes tend to be the exception rather than the rule. And reporters simply don't expect to be lied to when an advocacy group hands them tales of a crazy lawsuit or a study about economic trends – a naiveté that the tort reform movement has skillfully exploited. Gary Alan Fine, a sociology professor at Northwestern University and an expert on contemporary legends, says most people, including reporters, "rely on the trust we have of others."

Lobbying groups and industry financed think tanks have also taken advantage of an information vacuum. For years, most state courts never collected information on case outcomes and jury awards, so real numbers were hard to come by. Tort reformers have expertly filled this void with their own figures. "When there's no data, you can just make stuff up," says Eisenberg.

Even when there are relatively good data, they are easy to misread. The RAND Corporation's Institute for Civil Justice has reliable jury verdict data for two counties in Illinois and California going back 40 years. At one point, California's average jury verdicts showed a big jump. A tort reform lobbyist might point to the same data as proof that emotional jurors are giving away a lot more money. In fact, what happened was that California raised the dollar limits for cases that could be pressed in small claims court, taking the small cases out of the main court, thus pushing up its statistical average even when the actual awards stayed constant. "It's really, really hard to make any inferences about what's going on out there from jury verdicts," says RAND's Seth Seabury.

Indeed, the "onslaught of litigation" over the past 30 years decried in Newsweek is a relative term. In 1962, for instance, only about 300 civil rights lawsuits were filed in federal courts. In 2000, there were more than 40,000 – an onslaught, to be sure, but that's because prior to 1964, racial discrimination was legal.

Michael McCann, director of the Comparative Law and Society Studies Center at the University of Washington, suspects that legal myths remain so pervasive because Americans want to believe them. He says that tort reformers have turned the frivolous lawsuit "into a morality tale about the loss of personal responsibility." He also suspects that the flexible American legal system lends itself to such caricatures because in America, fat people really can sue McDonalds (whether they would win is an entirely different matter), so many of the fake lawsuit stories don't seem like that much of a stretch.

The news coverage may be creating some unexpected consequences: Some academic researchers suspect that all the hype about the litigation crisis might actually be making Americans more litigious by giving them the erroneous impression that compensation is available through the courts for most injuries. As McCann says, "Tort reformers may have produced more frivolous claims while making legitimate claims harder to bring."

Indeed, if Americans really are overcome with fear of lawsuits, it might be because they've been reading too many Newsweek articles. At least that's the rationale cited by the organizers of annual Polar Bear Plunge back in Page, Ariz. In January, organizer Paul Ostapuk told the local newspaper that he was canceling the annual event at Lake Powell because "Given the rampant rise in frivolous lawsuits across the nation and the recent Newsweek article�I've had to play it safe and rethink the 2004 Polar Bear Plunge event." Ostapuk said he was planning to reschedule for next year – after buying some insurance.

Tom Daschle's Hillary Problem

When most people get engaged, they spend a few months talking to caterers, DJs, florists and the like in preparation for the big day. But when Linda Hall got engaged, she had to add another consultation to the prenuptial arrangements: a government ethics lawyer.

Hall was about to marry Tom Daschle, who was then a young member of the House of Representatives running for re-election and who wanted his campaign to pay for Hall to accompany him on a South Dakota campaign trip. Normally, such a request wouldn't have been necessary, but Hall, a regional director for the now-defunct Civil Aeronautics Board (CAB), was barred as a federal employee from campaign activities by the Hatch Act. With a few caveats, the CAB ethics lawyers signed off on her trip, Daschle won the election, and the pair was married in 1984.

Linda Hall Daschle's prenuptial ethics consultation would be the first of many she has sought over her 17 years as the working wife of a man who is now the most powerful Democrat in Washington. And the ethical questions woven into their marriage have gotten more complex as both Daschles have grown in power and stature in Washington -- he as a senator and she as a high-powered lobbyist.

Tom Daschle has demonstrated tremendous leadership skills since taking over as majority leader last spring, in a body where Democrats have a one-vote majority. Immensely popular, his stellar performance has Washington buzzing that Daschle will be a presidential contender in 2004. Daschle's successful maneuvering to block key parts of President Bush's domestic agenda also has Republicans on the attack, challenging Daschle on his home turf in South Dakota with negative advertising.

If Daschle does seek higher office, or even if the business of Congress becomes more contentious, those attacks will inescapably become more personal. He may find himself answering some pointed questions about his wife's career and its relationship to his. It won't be pretty.

The landmines in Linda Daschle's professional portfolio will make Hillary Clinton's pork futures and law-firm billings look like mousetraps. For instance, among Linda Daschle's clients is American Airlines, which has had six fatal crashes since 1994 (not even including the World Trade Center flights). The airline has incurred thousands of dollars in federal fines for a host of safety violations, and its employees have been caught in embarrassing drug smuggling stings. Even as its planes have crashed, American has lobbied for years to water down safety and security regulations that might have helped foil the World Trade Center attacks. Yet thanks in part to lobbying efforts by Daschle -- and support from her husband -- American Airlines got a free pass in the recent airline bailout bill, escaping most legal liability for the hijackings and getting $583 million in cash grants -- taxpayer money it will never have to repay.

Mrs. Daschle insists that she has consulted with congressional ethics staff and is in violation of no rules by lobbying on behalf of American and other clients. She voluntarily recuses herself from any business with the Senate, which she strictly does not lobby. And she can point to her record as a former Federal Aviation Administration (FAA) deputy administrator when she says that her clients hire her for her aviation expertise -- a field in which she was working long before she married the senator.

But it's not congressional ethics investigators who are most likely to frown on Daschle's lobbying vita. It's the American people, especially the voters of South Dakota. After all, as the wife of the governor of Arkansas, Hillary Clinton sought to minimize any appearance of conflict of interest by refusing a cut of her law firm's earnings from state business. But that didn't save her -- or her husband -- from eventually getting raked over the coals under allegations that Hillary's career might have benefited from her husband's office. And her biggest offense, it turned out, was representing a failing savings and loan seeking a reprieve from a securities commissioner appointed by her husband -- a reprieve it didn't get.

So far, while the press has reported on Linda Daschle's lobbying efforts, it hasn't elevated it to anything like a bona fide scandal. Nor has the GOP, despite its recent attacks on her husband. But that could change. It doesn't take Lee Atwater to see how Mrs. Daschle's professional life might play out in a nasty re-election or presidential campaign: "Sen. Daschle's wife: Lobbyist for Nation's Most Dangerous Airline," or "Majority leader's wife lobbied to make airlines less safe."

Already the emails are circulating. Just after a USA Today story on the FAA's failure to address the problem of violent passengers on airlines, one proclaimed: "Linda Daschle's FAA failed to heed pre 9-11 warnings." The chat rooms of the popular conservative rant site, Free Republic, are filled with complaints about Linda Daschle's business dealings, a sign that conservatives are paying attention.

But Daschle seems genuinely shocked to hear that her career could become a political liability for her husband. "What is it about Linda Daschle's actions that have any bearing on Tom Daschle's public service? I just don't see the connection," she says. "I think a congressional spouse is entitled to a career, self-fulfillment. I love what I do. I love aviation. I love aviation policy. I don't see myself walking away from a career that I've invested nearly 25 years in." Instead, she hopes that, as more and more congressional spouses take up lobbying careers, eventually the media will stop asking these pesky conflict-of-interest questions.

But reporters are no more likely to stop asking questions about Linda Daschle's airline lobbying than they were going to ignore Billy Carter when he signed on as a lobbyist for Libya. David Schaffer, counsel to the House aviation subcommittee and a long-time acquaintance of Linda Daschle's, suggests that she may suffer from a common blind spot among Washington denizens. "People on the Hill don't really see lobbyists as evil," he explains. "But the public doesn't see it that way."

Not In Kansas Anymore

Yes, it's true: Before Mrs. Daschle was Mrs. Daschle, she was Miss Kansas, 1976. "It was a tremendous opportunity for me at a very young age," she says, cupping a mug of coffee in her distinctly unmanicured hands. "In a small way, it helped prepare me for being married to a very public figure."

Petite and blond, with perfect, straight white teeth, Daschle is still strikingly beautiful at 46. But she has a vise-like handshake you wouldn't expect from a beauty queen that suggests the steely interior necessary to survive in Washington power circles. Her office is filled with mementos reflecting her dual status as congressional wife and long-time aviation industry member: On the floor are models of airplanes, while in one corner stands a Lakota Sioux ghost dancer costume from South Dakota. Photos show her hunting pheasants with George McGovern and dressed in full flight gear with a team of Marine pilots. And in case her clients forget who she's married to, behind her desk is a giant framed print of the U.S. Senate insigne.

Born in Oklahoma and raised in Kansas, Daschle got into aviation early, working as a weather watcher at an FAA flight service station while in college. She spent two years at a community college, then went to Kansas State University, where she studied mass communication but never graduated. ("I loved my senior year," she says by way of explanation.) After college, she wanted to be an air traffic controller, but ended up going to work for a small regional airline -- until she had eight paychecks bounce, her first introduction to the fragile economics of the aviation industry.

After a stint as marketing director for another regional airline, in 1980 Daschle went to work for the Civil Aeronautics Board, the government entity charged with regulating the airline industry. There, she served as the director of the office of congressional, community and consumer affairs. She met Tom Daschle on a work trip to South Dakota. At the time, Tom Daschle was a freshman congressman, married to the woman who in 1978 had helped him ring 40,000 doorbells and go on to unseat an incumbent by 14 votes. By 1984, Tom had divorced his first wife, with whom he had three children, and married Linda, who was prohibited by law from ringing any doorbells.

Soon after they were married, Linda went to work for the Air Transport Association, the airline industry's main trade group. The first thing she did after marrying Tom was to consult the House ethics committee about how to manage potential conflicts. Lawyers advised her to fully disclose her activities and not to lobby her spouse, his office or committees. So that's what she's done. She takes all media calls, responding to every last question about her possible conflicts. And she's never considered a career change. "I never ever thought I'd have to give up anything to be married to Tom Daschle. I was here, I already had this career and I had no plans of backing out of it," she explains. "That's not to say that I didn't need to think about the appearance and work to avoid conflicts of interest."

Friends and colleagues say Daschle is very sensitive to the media scrutiny -- and has no sense of humor about it -- going so far as to get up and leave meetings where the business discussed might involve the Senate. "I have tried in every possible way to make it very clear that I do not lobby my husband and I do not lobby the Senate. I don't want people to knock on my door here wanting my help thinking they're getting Tom Daschle as part of the deal," she says. "My clients are people I've known for years and we have cultivated our own relationships that are very independent of Tom Daschle."

Behavioral Issues

Until the 1970s, when feminists began to crack open the old boys' clubs, most congressional wives had a pretty pat role: travel with the campaign, make the husband look like a nice guy, and take care of the kids. As Ellen Proxmire, wife of Sen. William Proxmire, explained in this magazine 20 years ago, playing wife to a politician can be brutal. In the early years of her husband's campaign, she used to "sit home Saturday nights and cry." In 1958, her husband left for a convention shortly after their day-old son died. Two days later, Ellen, too, went back on the campaign trail.

Carolyn Condit's recent travails illustrate the other pitfalls of the traditional political marriage. Its enormous power imbalance has undoubtedly contributed to many of the "behavioral issues" displayed by many congressmen over the years. Think of the first Mrs. Dole, who nursed her war-wounded husband, even attending college classes to take notes for him when he could not write, only to get dumped after 23 years of marriage in an "emergency divorce." Or the first Mrs. Gingrich, whose husband served her divorce papers at the hospital while she was being treated for cancer.

Today, there are a lot more Linda Daschles than Carolyn Condits in the congressional wives' club, and women are certainly better for it. (Can anyone imagine the current Mrs. Dole getting dumped in an emergency divorce?!) But as congressional wives have moved out of traditional roles, inevitably their careers have gotten entangled with Washington's influence-peddling business. In the early days of the feminist movement, working congressional wives usually stuck to teaching or real estate. But it wasn't long before some savvy ones saw the possibilities in their connections -- as did many of their husband's political suitors. Ellen Proxmire, for one, got sick of crying and, with a dozen or so other congressional wives, created Washington Whirl-Around, a tour and convention service. Whirl-Around did booming business, signing up clients -- lobbyists mostly -- who had business on the Hill, and holding receptions in Senate hearing rooms, courtesy of Sen. William Proxmire, who signed off on the room rentals.

Congressional wives didn't have to look too hard for business opportunities, though. Washington's special interests usually came to them. Back in 1979, Marion Javits caused a ruckus when she began doing PR work for Iran Air at the same time that her husband, New York Republican Jacob Javits, was on the Senate Foreign Relations Committee. The PR contract turned out to be a cover; Javits was actually doing work for the Shah himself. More recently, shortly after her husband became speaker of the House, (and before she, too, got dumped for a power wife) the second Mrs. Gingrich was hired as vice president for business development by an Israeli firm which had lobbied her husband to support an Israeli free-trade zone. Marianne Gingrich's previous job had been selling cosmetics from her home.

You don't hear much about these spousal contretemps anymore, but not because they've disappeared. Rather, such symbiotic relationships have simply become institutionalized. No longer peddling cosmetics, many congressional wives are now full-fledged members of D.C.'s access business -- and often were so long before becoming congressional wives. There's Enron board member Wendy Gramm, whose husband, Texas Sen. Phil Gramm, pushed through legislation in 2000 that exempted Enron from rules that govern other commodity traders. Airline lobbyist and former Reagan administration official Rebecca Cox is the wife of California Republican Rep. Christopher Cox. Jean Kurth Oberstar, wife of Minnesota Rep. James Oberstar, the ranking Democrat on the House Transportation and Infrastructure committee, owns an airport-consulting firm which contracts with airports for which her husband helped secure federal grants.

Unlike the days when former House Speaker Jim Wright's wife got a do-nothing job from a Texas investor seeking favors from her husband, it's much harder today to prove that congressional wives' business portfolios are solely the product of their husbands' connections. As the Daschle marriage illustrates, that doesn't mean that the potential conflicts are any less serious.

Under the Radar

In 1993, Linda Daschle took a break from her lobbying career (she was by then senior vice president of the American Association of Airport Executives), when Bill Clinton appointed her to be deputy administrator of the FAA. The job required Senate confirmation, and Daschle's husband joined his colleagues in voting for her unanimously. The appointment naturally stirred rumors at the FAA that she had been chosen because of who her husband was. That year, Clinton had also nominated three other congressional wives for top government jobs, in a move widely viewed as a shrewdly ingratiating gesture from a president who'd never served in Washington. But Daschle says that not only did she take a pay cut to take the FAA job, she did not seek the position. The Clinton administration asked several times before she finally agreed to take the post. "If Tom Daschle could have helped me get a job, how come I'm not ambassador to France?" she says.

In Daschle's defense, one industry source, who wishes to remain anonymous, says that Linda was far more qualified for the job than many of her predecessors, noting that during the first Bush administration, the deputy FAA administrator had been the Bush family's private campaign pilot. By contrast, Daschle actually had some experience in government. Former Transportation Secretary Rodney Slater (now also a lobbyist) says that during her four-year tenure at FAA, Daschle was a "true professional" who "clearly brought a unique insight to the job, especially when at the end of the day, you have to get the resources from Congress. Having those relationships and contacts is helpful."

Those contacts, though, also landed Daschle in the middle of an inspector general's investigation over charges that her husband had inappropriately intervened to reduce safety inspections of an air-charter company owned by a family friend. In 1994, a plane chartered by the Indian Health Service crashed in a snowstorm in Minot, North Dakota, killing the pilot and three doctors on their way to a reservation clinic. The charter company was owned by Murl Bellew, a friend of the Daschles who had taught the senator how to fly.

For several years, Forest Service inspectors had been raising serious questions about the safety of Bellew's operation -- issues that the FAA had overlooked -- and had argued that the company should be disqualified from seeking government contracts. Bellew wanted to get rid of the Forest Service inspections, and Sen. Daschle obliged by pushing legislation to eliminate the Forest Service's inspection role altogether, leaving his wife's agency as the sole overseer. He argued at the time that the legislation would streamline the bureaucracy by eliminating duplicative services.

In part of the ensuing investigation by the DOT inspector general, senior FAA officials claimed that Linda Daschle had also worked to quash a proposed program to train Forest Service inspectors to conduct FAA inspections. Then, an FAA inspector said agency officials had destroyed documents to cover up the Daschles' role in minimizing inspections of Bellew's planes. Linda Daschle insisted that she had recused herself from any decisions on that issue, and the IG later absolved her of any wrongdoing.

Daschle's position on safety issues came up again when the FAA was considering mandating full criminal-background checks of all airport employees, which she opposed. DOT inspector general Mary Schiavo was at a meeting with then-Transportation Secretary Federico Pena and Daschle at which Daschle vehemently objected. "I thought her position on the background checks was insane," says Schiavo. But Daschle's position shouldn't have come as much of a surprise, given that it's exactly the same one taken by her former employer, the Air Transport Association.

After serving briefly as the FAA's acting director, Daschle returned to lobbying in 1997, though federal law barred her from lobbying DOT for five years. Instead of going back to a trade association, Daschle joined a powerful law firm headed by former Sen. Howard Baker, Baker, Donelson, Bearman & Caldwell, where she is now a chair of the firm's public policy practice group. Daschle has stayed largely under the radar, mostly lobbying the House and sticking to aviation clients. All that changed after September 11, when her role in lobbying for the airline bailout bill became public.

Not only have reporters revealed Daschle's role in the airline bailout negotiations, but they have brought to light a provision in the 2000 transportation budget that required the FAA to buy baggage-scanners from one of Daschle's clients, L-3 International. The DOT's inspector general has found the L-3 equipment to be substandard, yet the FAA now has no choice but to purchase one of L-3's scanners for every one it buys from an L-3 competitor. The L-3 machines have been so bad that the one at the Dallas-Ft. Worth airport leaked radiation, and most others purchased by the FAA have not been installed. The inspector general told Congress that the FAA's requirement to buy L-3's machines is one reason that DOT will not be able to meet the new mandate to screen all luggage for bombs for many years.

Daschle reiterates that she never lobbied her husband on any of these issues, nor has her firm. But when it comes to lobbying Congress, does it really matter whether a congressional spouse lobbies her husband? The House Democrats on whom Daschle focuses her attention aren't likely to ignore calls from the majority leader's wife. And given the soft currency of Washington's access business, it's awfully hard to separate influence in such concrete ways, especially when many of Daschle's clients are lobbying both her husband and the Senate as well. The best example of this conflict came in 1999, when Daschle departed from her traditional aviation portfolio and took up the cause of drug company Schering-Plough, which was waging a fierce battle with the FDA to extend the patent on the allergy drug Claritin beyond its 2002 expiration. Daschle was one of many lobbyists the company hired to press its case, but the contract raised questions about Schering-Plough's motives for hiring her, given that Daschle has no expertise in pharmaceutical issues or at the FDA.

Daschle took something of a beating in the press and from public interest groups for taking up Schering-Plough's case, which if successful, would add billions of dollars to national prescription drug expenditures. "I was stunned at the criticism and how personal it became," she confesses. Daschle says she took the client at the request of Howard Baker, but she eventually became "a believer" in Schering-Plough's cause. And again, she insists she never lobbied the Senate.

Daschle may not have been lobbying the Senate, but Schering-Plough was, contributing $100,000 in soft money to the Democratic Senatorial Campaign Committee over the past three years. The drug company has also been kind to Sen. Daschle's pet charity, the National Organization on Fetal Alcohol Syndrome (NOFAS). In 1997, Richard Kinney, Schering-Plough's in-house lobbyist who was working on the patent issue, joined the board and the company has sponsored NOFAS's annual fundraiser, which both Daschles host every year. Sen. Daschle says he opposes the patent extension on its merits.

But Schering-Plough isn't the only one of Linda Daschle's clients to simultaneously seek good will from her husband: The air transport industry gave more than $100,000 in campaign contributions to the senator's campaign in the last election cycle. Northwest Airlines, which paid Linda Daschle's firm $190,000 in 1999, was the second-largest donor to Tom Daschle's Senate campaign in 1998. Charles Barclay, the head of the American Association of Airport Executives, Linda's former employer and now a client, has personally given $10,000 to the senator's political action committee, DASHPAC. Daschle says Northwest Airlines is one of her husband's constituents as the only major airline with comprehensive service to South Dakota. As for the others, she says, "All my clients have the right to lobby Tom Daschle and the Senate. What does not have to happen is for Linda Daschle to be involved in that effort."

Gary Ruskin, director of the Congressional Accountability Project, says he isn't concerned with who Linda's clients are, but what Tom Daschle may have done for those clients. At least for Linda Daschle's airline clients, the answer to that question is fairly clear: The airline bailout bill, shepherded through the Senate by Tom Daschle, sent nearly a billion dollars to American Airlines and Northwest Airlines. Northwest, which has received $404 million in cash grants from the government, actually posted $19 million profit in the third quarter.

Blinded by Ethics

So here's a case where a senator's wife gets a high-ranking government job, which in turn boosts her earning power as a lobbyist. She then represents clients who have business with and give money to her husband. Those clients pay her big bucks to help fight safety regulations and to win government money -- money which helps pay the senator's mortgage. Yet so far, the press and congressional ethics hawks have largely given the Daschles a pass. So why isn't this a bigger story?

Mostly because no one in Congress has the slightest interest in raising it. Democrats certainly don't want to attack one of their own, and as they point out in defending the Daschles, Republicans are married to lobbyists, too. In addition, both Republicans and Democrats are beneficiaries of Linda Daschle's clients. "This town is so bizarre that Linda Daschle may even deliver campaign contributions to Trent Lott," says the Heritage Foundation's Ron Utt. Indeed, she freely admits to giving campaign contributions to Republicans.

So who's left to scrutinize the relationship? The answer is the press. But Daschle has them covered too. Unlike Hillary a decade ago, Linda Daschle is a Beltway insider who understands the rules of the game. The main rule is that the effects of your actions, no matter how dubious -- say, weakening airline safety -- are never grounds for a scandal so long as you first, disclose your actions, and then, don't violate the ethics rules in the process. If Tom or Linda Daschle had secretly taken a free pair of Superbowl tickets from Northwest Airlines and then pushed the airline bailout plan, that would be a big story. But the fact that Tom Daschle takes thousands of dollars in campaign contributions from Northwest and his wife's firm collects $200,000 a year to lobby for them is no problem at all.

Congress has no rules prohibiting members' spouses from lobbying. Notoriously porous, congressional ethics rules were written on the not so unreasonable theory that it's impossible to forbid each and every potential conflict of interest, and that in the end, the voters are the ultimate arbiters of congressional behavior.

Linda Daschle's reputation for scrupulously adhering to the ethics rules shows just how well she understands the rules. But when it comes to a presidential election, a different set of rules comes into play: Win at all costs. And at this game, the Republicans have proved themselves uncommonly adept and not just within the chamber of the Supreme Court. If Tom Daschle poses a legitimate threat to Bush, his wife's lobbying will attract more attention from partisan Republicans and investigative reporters.

These attacks on his wife may not hurt Tom Daschle in Washington, where politicos find very little unseemly. But the American voter is a different animal. Voters may not buy Linda Daschle's defense of keeping her career at all costs. Nor are they likely to swallow the claim that her work has absolutely no bearing on her husband's. If Linda Daschle lobbied one arm of Congress to weaken airline safety and give away billions of taxpayer dollars to corporate clients, the voters are likely to assume that her husband was in there, too. And they'll probably be right. After all, American voters may not understand the inner workings of Washington politics, but they do understand the inner workings of marriage.

Stephanie Mencimer is an editor of The Washington Monthly, where this article first appeared.

Scorin' with Orrin

At last summer's Olympic games in Sydney, Australia, Norwegian wrestler Fritz Aanes suffered two heartbreaks: He lost the bronze medal, and then he was banned from competing internationally for two years, after testing positive for the potent anabolic steroid nandrolone. Although he couldn't do much about losing his medal, Aanes protested vehemently about his drug test, arguing that he had not taken steroids. The problem, he claimed, stemmed from another source: mislabeled dietary supplements manufactured in Utah.

Aanes made a compelling case. Nandrolone had been banned since 1975, and because it was easily detected for up to a year after only one injection, it had largely disappeared from pro sports. Athletes really bent on cheating had much better (and harder to detect) drugs to choose from. Later, a lab in Cologne, Germany, confirmed that there were trace amounts of nandrolone in Aanes's Utah supplement that weren't listed on the label.

Aanes wasn't the first athlete to blame tainted American dietary supplements for a positive drug test. Three others headed for or competing in the 2000 Olympics also tested positive just for nandrolone. And the International Olympic Committee (IOC) had been getting reports about the possible supplement-steroid link since 1999, when more than 350 athletes competing around the world tested positive for the curiously pervasive compound.

Researchers suspected that not only were dietary supplements being mislabeled, but many of the U.S.-produced supplements called pro-hormones actually behaved like steroids, even though they were legally sold over the counter. The surge in positive tests for nandrolone also coincided with the spike in pro-hormone use after St. Louis Cardinals slugger Mark McGwire admitted to using androstenedione -- or "andro" -- while chasing the single-season home-run record in 1998. (Banned by the IOC, andro is a steroid that the body converts to both testosterone and estrogen.)

After the controversy in Sydney, the IOC warned athletes to avoid American supplements, particularly those manufactured in Utah, the "Cellulose Valley" of the U.S. supplement industry. The IOC also blasted the U.S. for poorly regulating supplement producers and asked then-White House drug czar Gen. Barry McCaffrey to review the Dietary Supplement and Health Education Act (DSHEA), which had deregulated the U.S. supplement industry in 1994.

Then Olympic officials, increasingly frustrated with the U.S. response to their concerns, went one step further and blamed the surge in nandrolone tests on a single U.S. senator: Orrin Hatch (R-Ut.). Hatch was the chief architect and sponsor of DSHEA, which among other things, prompted supplement makers to flood the market with vitamins, herbal remedies, amino acids, and other "natural products" like andro without any federal safety or purity guarantees. "[Hatch] is directly implicated in this affair," said Prince Alexandre de Merode, chairman of the IOC medical commission.

The IOC criticism was particularly biting given that Hatch's home state will be hosting the next winter games in 2002, and that one of the games' major sponsors is, in fact, a supplement company. Utah had already produced a major Olympics bribery scandal; all it needed was a reputation as the world's steroid capital just as the IOC was arriving with its drug-test lab.

So Hatch fired back at the IOC, saying that athletes could not blame their bad drug tests on him, or on the supplement industry, which he claimed was properly regulated in the U.S. "I am tired of this childish finger-pointing," Hatch said. "The last time I checked, neither the prince nor the athletes were experts in food and drug law."

The pressure from the IOC didn't seem to faze Hatch, who reiterated his belief in personal responsibility and the right of consumers to care for themselves using supplements. Gen. McCaffrey, though, did get the Drug Enforcement Agency (DEA) to study the possibility of declaring andro a controlled substance much like narcotics and anabolic steroids. The move prompted a group of pro-hormone makers to pay a lobbying visit to Hatch's Washington office to express their concerns. The group represented a rather unusual constituency for the well-respected senior senator, a pious Mormon drug warrior who abstains from tobacco, coffee, and booze and makes Christian music CDs in his spare time.

Among the visitors were representatives from Weider Nutrition International, a leading pro-hormone producer in Utah which last year was fined $400,000 by the Federal Trade Commission (FTC) for making false claims about some of its weight-loss products. Another was body-building guru, chemist, and supplement maker Pat Arnold, the "father" of pro-hormones.

Hatch's office apparently reassured them that the senator would continue to defend their interests. Arnold later posted a report on about his visit, writing, "Hatch's assistants informed us of the pressure they were getting from the IOC representatives (a bunch of arrogant princes and ambassadors) to do something about the terrible andro and the unfair advantage it gives people and abuse by kids (and other silly crap). The IOC is very angry at Hatch because of his role in making supplements like andro and creatine (which they consider evil) freely available in this country. Hatch, of course, realizes how ridiculous they are."

Hatch was unavailable for comment, but he has been unapologetic in his support for the supplement industry, having battled the FDA and other federal agencies over the regulation of vitamins, herbals, and other natural medicines for more than a decade. He believes the government has no more right to restrict Americans' access to vitamin A or the herbal ma huang than to McDonald's french fries. Hatch considers his 1994 law, DSHEA, a triumph on behalf of consumer health freedom. But a close look suggests that if anything, DSHEA (or the Hatch Act, as body builders call it) has left Americans "free" to serve as guinea pigs for a multibillion-dollar industry, much of which is built on a foundation of fraudulent claims, pyramid schemes, and lousy manufacturing practices.

Since DSHEA became law, substances as varied as paint stripper, bat shit, toad venom, and lamb placenta have all been imported from overseas, bottled up -- -often by people with no scientific or health backgrounds -- -and marketed as dietary supplements to unsuspecting American consumers. Many supplements have been tainted with salmonella, arsenic, lead, pesticides, unapproved foreign prescription drugs, as well as garden-variety carcinogens. And despite their New-Age health aura, a significant portion of these "natural supplements" are stimulants, depressants, and other mood-enhancers that some medical experts believe would be classified as drugs if they were synthetic. A surprising number of these products are addictive.

Thanks to Hatch, the U.S. now has standards as low as those in many Third World countries for the sale of many products with serious, pharmacological effects. The results have been deadly. Between 1993 and 1998, the FDA linked at least 184 deaths to dietary supplements, which are now suspected of contributing to the sudden deaths of three football players in August.

Yet Hatch -- as one of the Senate's most powerful Republicans who is often touted as a possibe Supreme Court justice -- has resisted attempts to clean up the supplement market. There's big money in dietary supplements, and Hatch has taken his fair share in campaign contributions. But his support for the industry goes well beyond simple campaign-finance issues. Hatch is part of a deeply committed segment of the American public that believes in the right to use alternative medicine and nutritional supplements with a religious fervor.

"He is by far our greatest advocate. No one rises to the issue the way Sen. Hatch does," says Loren Israelson, executive director of the Utah Natural Products Alliance, which represents the Utah supplement industry. "He's a true believer in natural health."

Opiate of the Masses

Back in 1905, reporter Samuel Hopkins Adams wrote a famous series of stories in Colliers' magazine called "The Great American Fraud," which documented the deaths of hundreds of people from over-the-counter medicines that were peddled with promises to address "weak manhood," "lost vitality," or to give consumers "better blood." Patent medicines were widely available and promoted in the press with testimonials from people claiming to have achieved great results from these magic offerings.

Many of the products were little more than alcohol, addictive opiates, and stimulants, which made for reliable return customers. And their labels rarely revealed the products' real ingredients. Adams exposed how some headache powders, for instance, often sold by door-to-door salesmen, actually contained high levels of acetanilide, a toxic and addictive painkiller that caused heart attacks and kidney disease.

Adams' stories prompted Congress to buck well-funded lobbyists and pass the first Pure Food and Drugs Act in 1906, which prohibits interstate commerce in mislabeled or adulterated foods or drugs, and laid the groundwork for the current Food and Drug Administration (FDA).

That law, along with several others a few years later, helped curb the sale of worthless and dangerous health products. But in the late 1980s, a new wave of dubious products marketed with specious health claims began flooding the market as aging baby-boomers revived interest in alternative medicine. In 1989, a batch of the amino acid L-tryptophan, touted as a remedy for sleeping problems, anxiety, and PMS, caused 1,500 cases of a connective-tissue disorder. Thirty-eight people died.

The incident prompted the FDA to scrutinize the industry, and two years later, an FDA task force recommended halting over-the-counter sales of such amino acids as L-tryptophan and other supplements with therapeutic qualities. The task force also recommended limiting the dosages of vitamins and minerals, many of which are toxic in high doses. (Sixteen children died in 1991 from iron-supplement poisoning.) And the FDA asked Congress for the power to pre-approve any health claims made by manufacturers before they could market a product, and to increase the fines and penalties for violating the laws.

Not surprisingly, the supplement industry went nuts and called upon its clean-living friend to help fight back. Hatch was happy to oblige. In 1992, he passed a one-year moratorium on new supplement regulations. Meanwhile, the industry enlisted Hollywood and Christian broadcasters in a successful campaign to convince consumers that the government wanted to take their vitamins away.

With enormous public support, in 1993, Hatch introduced DSHEA and pushed the act through the Labor and Human Resources Committee on a 12-5 vote, overruling objections from his friend from Massachusetts, Edward Kennedy. Railing against the FDA from the Senate floor, Hatch declared that the agency had "repeatedly attempted to impose unnecessarily stringent standards that would leave many if not most supplement companies with no practical choice but to close their doors."

In defending DSHEA, Hatch reasoned that foods such as raw beef, seafood, and even peanut butter can be potentially dangerous, but that their risks are presumed small enough, and the consumer smart enough, that the government allows their sale unfettered. Supplements, Hatch argued, are no different. In fact, supplements such as folic acid can prevent birth defects when taken by pregnant women. If the government regulated folic acid like drugs, think how many children could be needlessly disabled!

Yet supplements, unlike food, are marketed like medicine and used like medicine by consumers. When they work (which they often do not), supplements can have serious side effects. The FDA has warned, in fact, that many popular herbal remedies, such as comfrey and chaparral, are highly toxic.

Beef may be dangerous if contaminated with bacteria, but it's not legal to sell bacteria-laden beef. And if a meat company is caught doing so, the U.S. Department of Agriculture is empowered to shut down the plant in one day. The law Hatch was proposing would force the FDA to spend years in court before it could respond to a public health crisis and pull a dangerous supplement from the market.

Consequently, the FDA did not participate in the debates over DSHEA, believing that the law was so bad it would never pass. But according to Israelson, DSHEA generated more mail to Congress than the Vietnam War. With help from Sen. Tom Harkin (D-Iowa), an alternative-medicine proponent who believes bee pollen cured his allergies, Hatch sneaked the bill through Congress in a late-night session. "I do not understand how a single member of Congress voted for it," says Larry Sasich, a pharmacist and researcher at Public Citizen's Health Research Group.

Thanks to Hatch's law, the supplement industry has grown 80 percent since 1994 -- and so, it seems, have its health claims. Reminiscent of Samuel H. Adams' day, health-food stores and Web sites tout such things as "horny goat weed," promised to increase male potency; valerian root and melatonin to aid sleeping; aloe vera juice designed to "support colon health"; and endless tonics, pills, and powders touting enhanced energy and well being. But just as with the turn-of-the-century patent medicines, few of these products have much science behind their claims, according to consumer advocates.

And, like Adams' headache powders, the most popular supplements today are largely products that affect the central nervous system. More than 50 percent of the nation's best-selling dietary supplements are products such as valerian, an herbal sleep-aid and anti-anxiety remedy; kava, another sedative that can so impair people's judgment that Hatch's home state passed a law banning driving under its influence; St. John's Wort, touted as herbal Prozac; and ephedra, a weight-loss aid and "energy booster" that can be easily converted into methamphetamine, its close relative.

Like their synthetic counterparts, some of these so-called dietary supplements are addictive, including valerian, which can have significant withdrawal effects; guarana (which is mostly caffeine); and, especially, ephedra. And far from being harmless alternatives to pharmaceuticals, these compounds can have some serious side effects. Between 1994 and 2000, the FDA implicated ephedra in at least 80 deaths and 1,400 cases of serious illness, including arrhythmia, hypertension, heart attacks, seizures, and strokes.

The reason for the new plethora of supplements is that Hatch's "health-freedom" law turned regulation on its head. Despite their sometimes-potent pharmacological effects, dietary supplements are now classified as foods and are presumed to be safe unless the government can prove otherwise. Drugs, on the other hand, must be proven safe by the manufacturers before going on the market.

At the same time, DSHEA also broadened the ability of the supplement industry to make medical claims and expanded what could be marketed as supplements to include amino acids, metabolites, herbs, minerals, and botanicals. "The law is a terribly flawed law. If you grind up organs, they could be supplements. Anything can be a dietary supplement," says Dr. David Roll, a professor at the University of Utah College of Pharmacy.

DSHEA created a Monty Python-esque distinction between drugs and supplements by essentially defining both by what the manufacturer says about the product. Let's say, for instance, that Herbalife markets one of its ephedra products as a legal speed. In that case, the FDA can pull it off the market as an unapproved drug. But if Herbalife instead markets the very same product as a weight-loss aid, voila! It's a supplement, and there's virtually nothing the FDA can do to keep kids from buying it in buckets -- to stay thin, of course.

Pyramids in the Desert

To understand how a teetotalling drug-warrior like Hatch became the biggest defender of the supplement industry's right to freely sell natural speed and other dubious products, it's useful to go back to his home state of Utah, whose $2.1-billion share nationwide accounts for about a fifth of America's supplement business.

Loren Israelson of the Utah Natural Products Alliance says there is a cultural affirmation of using herbs for medicine in Utah that helped give rise to the industry. Hatch, like 70 percent of his state's citizens, is a member of the Church of Jesus Christ of Latter-day Saints, and Israelson says that some believe Mormon scriptures encourage, and perhaps even mandate, the use of herbs as "God's medicine."

The belief in alternative medicine also has long sectarian roots intertwined with a Western libertarian political bent widespread in Utah. Utah Mormons tend to be intensely self-reliant people who would prefer that the federal government simply leave them -- -and their supplements -- -alone.

Orrin Hatch hails from this tradition. It informs his politics, and also seems to drive his own belief in the power of alternative medicine. Hatch, 67, who first came to Congress in 1977, works out for an hour every morning and consumes daily vitamin packs, urging his staff to follow suit. Hatch's supplement consumption goes well back to his youth, when he peddled vitamins for pocket money.

Not surprisingly, he has very close ties to the industry. His former chief of staff, Thomas Parry, is now a lobbyist for Utah's supplement industry, and even hired one of Hatch's sons in 1992 as a research assistant. Hatch's 2000 reelection campaign was managed by another former chief of staff, Kevin McGuiness, now a dietary-supplements lobbyist. Hatch also owns a small amount of stock in a small Utah vitamin company.

Close ties between members of Congress and the industries they oversee are pretty common. But the supplement industry's relationship with the squeaky-clean Hatch seems unlikely at first glance, given that a sizeable portion of the industry has a well-documented history of fraud that goes beyond the usual corporate shenanigans.

Fraud is something of a cottage industry in Utah, a state the FBI once dubbed the con-artist's paradise. A combination of trusting Mormon residents and a religious susceptibility to get-rich-quick schemes has made Utah a playground for Ponzi schemers and penny-stock swindlers (a few of whom Hatch represented as a young lawyer). Utah's most famous con-artist is the Mormon murderer, Mark Hoffman, who in 1985 killed two people in attempts to cover up his sales of forged historic documents to the highest officials of the LDS church.

Utah's hospitality to scammers has made it welcome territory for the supplement industry, particularly companies that sell their products through multilevel marketing, a technique resembling an old-fashioned pyramid scheme. Almost half (roughly 40) of Utah's supplement companies market their products not in stores, but through independent distributors who purchase expensive "kits" to set up their own door-to-door-style sales campaigns. These companies are responsible for many of those "Work at home" signs on telephone poles promising callers that they can make thousands of dollars, or the station wagons with bumper stickers that say "Lose weight now. Ask me how."

Consumer advocates consider multilevel-marketing companies something of a nuisance because many of them have been known to lie about the benefits of their products, and because they often prey on the working class with promises of quick fortunes. (A Connecticut lawsuit against the Utah firm Nu Skin found that rather than getting $5,000 to $10,000 a month as promised, 98 percent of all Nu Skin distributors earned an average of $38 a month.)

Some of Utah's biggest companies are repeat offenders. Take Nu Skin, which claims $1 billion in annual sales, and which has been one of Hatch's biggest campaign donors. In 1997, Nu Skin agreed to pay a $1.5 million fine to settle charges with the FTC for violating a 1994 consent order that required Nu Skin to back up product claims with reliable scientific evidence. In California, distributors brought a class action against Nu Skin alleging that it was operating a pyramid scheme and had bilked some 100,000 distributors out of $75 million. Nu Skin settled for an undisclosed amount.

Nu Skin is hardly alone. The supplement industry is full of companies that have run afoul of federal and state regulators, including other big Hatch donors such as Herbalife, Rexall Sundown, and Sunrider.

Shrinking Testicles

Given the industry's track record, no one, especially Hatch, should have been surprised that supplement makers quickly went to work exploiting the regulatory weaknesses created by DSHEA.

In one case, a Utah company called Pharmanex (now a subsidiary of Nu Skin and a sponsor of the Utah Winter Olympics) began selling Cholestin, a supplement made with Chinese red yeast rice touted for its alleged benefits in lowering cholesterol. It didn't take long for Merck, the pharmaceutical giant, to figure out that Pharmanex was essentially selling a natural version of its prescription drug Mevacor.

Merck, which had invested millions bringing its drug to market, pressured the FDA to act. Aside from its own financial self-interest, Merck could make a compelling case: Mevacor was a prescription drug because its dosage levels and benefits had to be weighed against its risks, which include liver damage and kidney failure -- -problems for which users need monitoring by a doctor. (A similar drug was just pulled off the market after being linked to 31 deaths.) If Cholestin had the same ingredient, it likely had the same potential for side effects.

So in 1998, the FDA banned Pharmanex from importing red yeast rice. But U.S. District Court Judge Dale Kimball (who was appointed under Hatch's advocacy a year earlier) blocked the import ban on the grounds that Cholestin was "intended to supplement the diet," and that "Congress enacted DSHEA in recognition of the valuable role played by dietary supplements in improving health, preventing disease, and reducing health-care costs." The decision was eventually overturned, but the case showed how long it could take for the FDA to get a supplement off the market.

The Pharmanex case also suggested the possibilities available to crafty supplement makers to legally market "natural" versions of all sorts of drugs, including illicit ones. Most troubling has been the explosion in pro-hormones, a trend started with a muscle-building supplement, DHEA, a steroid hormone and chemical cousin of testosterone and estrogen. The FDA had actually banned DHEA in the '80s, but it was reclassified as a dietary supplement in 1994 under Hatch's new law, and its sales took off.

Manufacturers claimed DHEA was a magic potion that would improve the sex drive, reduce heart disease, and help the immune system. Few of the claims had been proven with solid scientific research, but researchers had found some interesting side effects. Like a lot of hormones, DHEA mixes up the endocrine system and is suspected of causing, among other things, facial-hair growth in women and breast development in men, and accelerated prostate tumor growth. Other suspected side effects are heart-rhythm disturbances, acne, scalp hair loss, and menstrual irregularities.

Nonetheless, DHEA's commercial success prompted supplement makers to come up with other legal hormone supplements like andro that, once in the body, can easily convert to testosterone, the coveted elixir of performance athletes. The medical community has warned that andro, like illegal steroids, could have dangerous side effects ranging from liver cancer to heart disease to impaired testicular function.

Dr. Gary Wadler, a professor of medicine at New York University and a member of the World Anti-Doping Federation, says there's not much difference between the steroids and pro-hormones. "Ingest a supplement and urinate a controlled substance," says Wadler. "The laws are inconsistent with physiology."

Yet andro's success drove supplement makers to even more complex chemical experiments. Hot on its heels came norandrostenedione-19, which is actually marketed as a legal version of the injectable steroid nandrolone, the same drug that turned up in the athletes in Sydney. The latest development is Andro 9, a product that makes a real mockery of the term "dietary supplement."

Andro 9 is andro spiked with an herbal called tribulus terrestris, which essentially overrides the pituitary gland in regulating the body's production of testosterone. Bodybuilders love andro 9 because regular steroids prompt the testicles to stop producing testosterone, creating the dreaded "shrinking your grapes to raisins" effect. Tribulus terrestris instructs the testicles to keep pumping. When added to andro, the herbal wildly increases the body's supply of testosterone.

Yet in the '80s, tribulus terrestris was shown to cause a neurodegenerative condition in sheep called staggering disease, not to mention liver damage and much else. There are no data as yet on what it does to humans, but as Wadler observes, do you really need to know more, given what it does to sheep? "If tribulus terrestris was a cure for cancer, I could never get it through the FDA [because of the side effects]. Put it in a supplement and nobody looks at it," he says.

Hatch has expressed concerns that pro-hormones are being marketed to kids. But rather than authorize the FDA to take more action, his solution has been to let the DEA deal with it. Because there is very little clinical data on andro (supplement manufacturers aren't required to do any testing before they sell their stuff the way drug companies are), the DEA is now spending taxpayer money to conduct studies to prove whether or not andro causes muscle growth in lab animals. If it does, as most people suspect it will, the DEA will classify andro as a controlled substance along with other anabolic steroids.

That process has already taken months, and could drag on much longer. In the meantime, millions of Americans, including children, will be free to take the stuff, and the athletes who are in Salt Lake City next winter will likely find bottles of pro-hormones beckoning from store shelves.

A Lamb Placenta A Day

Not only have supplement companies unleashed potentially dangerous new products on the public, but like Sam Adams' patent medicines, today's supplements have become a grab bag of ingredients that may or may not work the way they are supposed to, and may or may not actually contain the ingredients listed on the bottles, leaving consumers to play Russian roulette with their health. "In terms of regulations and how we approach dietary supplements, we have a Third World approach," says Dr. Richard Ko, a supplement expert with the California Health Department.

In January, a diabetic San Francisco woman was hospitalized with life-threatening low blood sugar after taking an herbal supplement called Anso Comfort. Ads in local Asian newspapers had touted Anso Comfort as a remedy and even a substitute for prescription drugs for a wide variety of ailments, including high blood pressure and high cholesterol. Tests by the California Health Department found that the "herbal" actually contained the prescription drug Librium, an addictive tranquilizer long known to be contraindicated with the woman's diabetes medications.

It wasn't the first time a potent prescription drug has turned up in a dietary supplement in recent years. Since 1994, even prescription drugs that the FDA pulled off the market decades ago are popping up again in dietary supplements. For instance, one supplement marketed for treating attention-deficit disorder in children contains dimethylaminoethanol bitartrate, a drug developed in the 1950s and sold as a prescription until the FDA forced it off the market in 1983 because it didn't work.

Last year, the California Health Department (one of the few government agencies that regularly tests supplements) found supplements that contained the diabetes drugs glyburide and phenformin. The FDA pulled phenformin off the shelves in the 1970s because it had toxic side effects.

Part of the reason so many drugs end up in supplements is that herbals in other countries are regulated as pharmaceuticals. For instance, in China, it's legal to mix herbals with pharmaceuticals because they are identically regulated. But this same "natural Chinese medicine" is imported to the U.S. as a dietary supplement. Ko explains, "There are a lot of people who are bypassing the [FDA approval] process by declaring [foreign drugs] a dietary supplement."

To sell an over-the-counter or prescription drug, manufacturers must document their manufacturing process and are regularly inspected by state and federal regulators. Of course, their products must be approved first, passing rigorous safety and efficacy requirements that can take up to 10 years and half a billion dollars for a new drug. Before foreign drug manufacturers can sell their products in the United States, they also have to pay for FDA inspectors to check out their plants to make sure they meet the U.S.'s high standards. Even with all this, problems still happen.

The requirements for selling dietary supplements might be comic if the results weren't so potentially dangerous. While supplements sold here are technically manufactured in the United States, the raw ingredients come mostly from overseas. But there is absolutely no requirement that the manufacturer actually test those ingredients for safety and purity before selling them. Even more troubling, any yahoo can legally make a supplement. Many novices have been drawn into the supplement industry by the promise of high profit margins. The company that sold Anso Comfort was run by a guy fresh out of business school who ran a small Asian importing company and had no health or science background, according to Ko.

The FDA attempts to scrutinize supplement ingredients when they're imported, but it has few resources to do the job. According to the FDA, last year there were 65,602 line entries for dietary supplement imports. Of those, inspectors detained 1,239, and of those detained shipments, 413 were refused entry to the country -- not even 1 percent of all imported products.

But just looking at what inspectors do catch will make you think twice about gulping the supplements in your medicine cabinet. FDA supplement detention reports have included rotting shark cartilage, filthy herbal extracts, plantain leaves containing the heart drug digitalis, lamb placenta, salmonella-contaminated mullen leaves, poisonous clematis erecta dry leaves and twigs, vitamins and supplements from unsanitary manufacturing plants, a host of unapproved prescription drugs, products with false claims on the labels, products with no English labels, no directions for their use, completely bogus labels, labels that didn't identify the manufacturer, and lots of labels that didn't match the product.

Not much stands between the rotting shark cartilage and the consumer's stomach. No one is required to make sure that your valerian isn't loaded with Valium from a fetid processing plant in Guangzhou. "People will say FDA has adequate controls [under DSHEA], but you can make a lot of money before anyone knows what you're selling," says the University of Utah's Roll.

Hatch has maintained that manufacturers are breaking the law if their product labels don't match the contents of the bottle, and that they can be prosecuted for selling dangerous products. A Hatch staffer says: "The FDA has full authority to take products off the market. They have never used that authority. The senator believes they should use it."

Indeed, few if any supplement makers have been prosecuted for mislabeling offenses under DSHEA. And for good reason. As NYU's Wadler explains, the way the law is written, "you would [practically] have to have the FDA go in bottle by bottle to see whether what's in the bottle matches what's in the label. And then they would have to go to court over [each one]."

Hatch's threats of FDA prosecutions sure aren't putting the fear of God into the supplement industry. When researchers have done random testing of supplements, they've found a disturbing number of label/content mismatches. Two years ago, the California Health Department tested more than 250 herbal products from retail stores in the state and found that 32 percent were adulterated with undeclared pharmaceuticals and/or heavy metals.

Last year, tested 25 echinacea products to see whether the ingredients matched the labels. Six of the 25 didn't have enough information on the label to even take the test. Of those remaining, only 56 percent passed muster, and one that didn't was contaminated with high levels of illness-inducing microbial bacteria, a sign that the product had been rotting before it was processed.

Other studies have found similar results, making the odds of getting a high-quality dietary supplement in a health-food store akin to getting high-quality coke from your local drug dealer.

The quality issue has even started to concern the supplement industry, and some of the better manufacturers are showing some willingness to bend on their opposition to regulation. After much bad press this past year about the potential dangers of supplements, their sales have stagnated, after experiencing 15-to-18 percent annual growth over the past five or six years. As a result, Hatch has been pushing FDA to issue a set of Good Manufacturing Practices regulations as mandated in the 1994 law. Once these rules are adopted, says one Hatch staffer, the quality of supplements should improve markedly: "Some of these products are fringe products and should be policed."

Meathead Panic

Yet in practice, since the advent of DSHEA, the FDA has had very little power to do what Hatch has suggested. As former FDA Director David Kessler wrote in The New England Journal of Medicine last year, "Congress has put the FDA in the position of being able to act only after the fact and after substantial harm has already occurred."

Even if the FDA had more power, it still has virtually no budget for monitoring the multibillion-dollar supplement industry, according to an agency official. When Hatch's law shifted the burden for safe products onto the government, it didn't provide the FDA with any additional funds. Last year, the FDA asked for $2.5 million to beef up its adverse reaction monitoring system. Congress turned it down. The FDA's annual budget for monitoring dietary supplements is only about $6 million, its smallest program.

That's not much considering that just finding the supplement manufacturers sometimes can be a huge job; the law doesn't require supplement manufacturers to register with FDA the way drug companies must. In one case, according to a GAO report, the FDA received two reports of comas associated with a supplement, but when field inspectors tried to track down the manufacturer, they found a shuttered post office box.

Nor are supplement companies required to tell anybody when they discover problems with their products. There's evidence that they're hiding quite a few. Depositions in a lawsuit in San Francisco against E'ola -- a Utah multilevel-marketing firm -- after the death of a woman linked to an ephedra product revealed that the company had received 3,500 customer complaints about one of its ephedra weight-loss products. None of the complaints was ever disclosed to the FDA, according to the San Francisco Chronicle.

The FDA has estimated that it is notified of fewer than 1 percent of all the adverse events associated with supplements, and that fewer than 10 of those reports came from manufacturers.

Without better data, FDA is hard-pressed to prove that a given product is dangerous enough to justify a court order pulling it from the shelves -- -especially after DSHEA deprived it of the special deference government regulatory agencies usually get when they go to court, says Public Citizen's Larry Sasich. Now, in supplement enforcement cases, instead of treating the FDA as an expert, judges must consider it no different from any street chemist.

Even when the FDA simply attempted to limit the allowable dosages of ephedra, Hatch and the supplement industry argued successfully that the FDA's data on the adverse reactions was not sufficient to merit the regulation.

To his credit, Hatch is working toward giving the FDA more resources and has gotten $2 million in additional funds to beef up the adverse-event reporting system, according to his staff. But even if the FDA could prove something like ephedra is dangerous, it would have to go after every single manufacturer individually, because DSHEA does not allow the agency to target a specific ingredient, only a product.

The problem is apparent in the FDA's attempts to get a potent thyroid drug off the supplement market. In November 1999, the FDA issued a warning against taking Utah-made weight-loss products containing tiratricol, a French prescription diet drug that has been linked to heart attacks and strokes. The agency also asked the manufacturer to voluntarily recall the product, which sent some muscle-bound meatheads into a panic. But the online magazine Testosterone assured readers that "cutting-edge" supplement manufacturers were already planning to market different thyroid analogs similar to tiratricol. Those supplements would be "naturally occurring," and "therefore protected under the DSHEA," wrote Testosterone.

The meatheads needn't have worried. Two years after the first recall, products containing tiratricol were still on the market, and the FDA had to undertake not one, but three more recalls up through September 2000.

By contrast, late last year, when a new study showed definitively that phenylpropanolamine (PPA), a common ingredient in cold remedies and over-the-counter weight-loss products (and a chemical cousin to ephedra), slightly raised the risk of stroke in women, the FDA swept into action to remove it from the market. You'd be hard put to find it on the shelves nine months later.

Pump It Up

DSHEA clearly needs to be revisited, but there's little movement afoot to do so. "Congress won't act until there's a major public health tragedy," says attorney Bruce Silverglade at the Center for Science in the Public Interest.

It ultimately took the deaths of 107 people, mostly children, from a poisoned over-the-counter elixir before Congress finally imposed the sweeping regulatory framework under the 1938 Food, Drug, and Cosmetic Act that required drugs to be proven safe and effective before marketing. Barring a massive wave of supplement-related deaths -- or the death or illness of one congressman's daughter -- any meaningful effort to fix DSHEA will undoubtedly require cooperation from Hatch. But the senator is unpersuaded.

Hatch believes the FDA has plenty of authority to police the supplement industry. As for the pro-hormones, Hatch wants to let the "scientists determine what is a steroid," and believes Congress should not be making drug determinations for every new product that comes on the market, according to one staffer. And if supplement makers are selling drugs as supplements, Hatch believes that "bad things should happen to them. They should go to jail," says a staffer.

Yet Hatch's record suggests the FDA will prosecute some supplement makers over his dead body -- -especially if those companies happen to operate in Utah. Remember that part of the reason he introduced DSHEA was that the FDA was doing then exactly what he proposes it should do now.

In Hatch's view, just because people might abuse some supplements doesn't mean that the government should make them harder to get. "If you die from taking too many ephedra, maybe the problem was you. It's not the government's fault," explains one of his staffers.

It's the kind of libertarian rhetoric you'd expect from a Western Republican senator. You might even be able to respect him for his belief in personal responsibility and faith in the common sense of American citizens -- -if only he were consistent about it. After all, if you take his arguments about supplements to their logical conclusion, not only should ephedra be legal, but so should amphetamines. If Americans are smart enough to self-medicate with unregulated supplements, why not let them snort coke or smoke pot?

Of course, Hatch is a drug warrior, and drug laws remain his ultimate solution to problems with supplements. If andro really is a steroid, well, gosh darn it, he says, let's make it a Schedule III drug and put those bastards in prison -- -but only once the scientists prove it in a clinical trial. Until then, pump it up, baby.

Stephanie Mencimer is an editor of the Washington Monthly.

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