Democrats are relying more than ever on the courtrooms of America to salvage their agenda. For years, the left has relied on American courtrooms for political funding, with personal injury lawyers and other trial lawyers serving as major donors to Democrat politicians.
But after failed attempts to ratify their Green New Deal policies through Congress, the Democrats have turned to lawsuits as a way of obtaining the same policies, with left-wing activists, public officials, and trial lawyers filing a long list of lawsuits against companies and products they do not like — from guns to plastic bottles to energy companies — all of which are meant to reshape American society while keeping the political money flowing. My organization — Alliance for Consumers — was founded in response to this.
Given the mission of Alliance for Consumers, it was a big moment when news broke that Sen. Thom Tillis and Rep. Kevin Hern had introduced legislation (since adopted into the Senate’s version of the One Big Beautiful Bill Act) that focused on trial lawyers and their games. Sadly, instead of a bill that would trim the sails of the left’s best courtroom weapons (think public nuisance lawsuits or abusive mass tort maneuvers), the bills are entirely focused on stopping who can realistically invest and commercially fund lawsuits.
It is hard to overstate how much ground could be gained from actual legislation on a topic like public nuisance — the No. 1 way the left hopes to bankrupt gun makers and energy companies — and how underwhelming it was to see that the new bills were solely focused on litigation finance.
Setting aside how the current bills empower the biggest, shadiest trial lawyers (who are exempted from its provisions when they get involved in a case), or how commercial litigation finance has become a tool in the fight against woke companies, or the other conservative policy criticism of the bills, there is a bigger problem lurking.
Buried within this new tax bill is a little-noticed privacy-destruction mechanism that seems almost targeted to “out” litigation funders who help smaller conservative law firms that have lawsuits against the likes of Planned Parenthood or mega-corporations pushing unlawful DEI and ESG commitments.
Specifically, there is a special rule that, in everyday language, would require law firms to withhold taxes on behalf of commercial litigation funders and send them to the IRS on a case-by-case basis. On its surface, it may read as a mundane tax provision. But for this mechanism to work as designed, a law firm would need to disclose which cases were funded, how much money was generated, and exactly which backer received which share — effectively piercing the privacy of litigation funders.
Given that the press statements surrounding the rollout of these new bills emphasize “transparency,” it seems as though this legislation was intentionally built to impose this piercing, privacy-breaking function.
Dismantling the privacy of litigation funders would be disastrous for those who have stepped up to fund the smaller law firms that are working to bankrupt Planned Parenthood or force behavior change at woke corporations — and particularly those that are backing the firms attempting to hold doctors and hospitals accountable over transgender-related mutilation of kids.
The last thing the conservative movement needs is yet another opportunity for the left to name and shame those who dare cross the ideological picket line and back conservative lawsuits on hot-button issues like DEI, abortion, or transgender surgeries.
This fear isn’t hypothetical. The left has shown time and again that it will weaponize transparency to punish its opponents. When I served as Arizona’s solicitor general, my team put in long hours to successfully fight California’s attempt to unmask conservative donors on the non-profit side. This new special provision provokes eerie flashbacks to that fight. And, if enacted, it threatens to do the same to conservative law firms — handing liberal interest groups and woke companies a mechanism to unveil and attack those funding hot-button cases that challenge the leftist worldview that has protected Planned Parenthood, DEI, ESG, and the doctors who mutilate children in the name of medicine.
Shady trial lawyers are a bane for consumers and a huge problem for conservatives. There is so much that could be done to fight back against shady trial lawyers and the left’s broader courtroom assault on our lives and our society. But the current bills by Sen. Tillis and Rep. Hern miss the mark, fly past the shady trial lawyer target, and end up as friendly fire against the good guys.
Given how badly these litigation finance provisions miss the mark in the fight against shady trial lawyers and left-wing officials, it makes no sense that conservative senators or members of Congress would support them, at least once they are aware of what the provisions actually do.
Trial lawyers and the left deserve a good thrashing (policy-wise), but that isn’t what these bills do, and it would be puzzling if conservatives who care about donor disclosure or the wokeness of corporate America were supportive here. At the very least, it seems like people need to do a lot more in terms of tackling tough questions raised on the privacy front by the current bills.