TRENT ENGLAND: GOP’s Outside-Funded Lawsuit Crackdown Is Trojan Horse For Woke Corporations

Editor’s note: Big Tent Ideas always aims to provide balancing perspectives on the hottest issues of the day. Below is a column from Save our States Founder Trent England, where he argues against Republicans’ latest attempt to crack down on third parties funding lawsuits in American courts. You can find a counterpoint here from Americans for Tax Reforms Federal Affairs Manager Rowan Saydlowski here, where here argues in favor of the GOP’s push.

For decades, conservatives have worked to stop the abuses of out-of-control courts.

In the area of civil justice, this is known as “tort reform,” and involves limiting excessive damage awards or attorney fees so that courts don’t become casinos. Conservatives know plaintiffs deserve justice, not jackpots. Yet a dangerous infiltration campaign is underway, trying to stifle conservative cases in the name of tort reform.

This nefarious campaign targets “third-party litigation finance.”

This is where the costs of a lawsuit are paid by someone other than the plaintiff or the plaintiff’s attorney. As litigation has become more expensive, these arrangements have become more common — including for important conservative lawsuits that target woke abuses. These include cases against ESG at financial firms, DEI at major employers and trans surgeries at big hospitals.

It’s no surprise these big woke corporations don’t want to be sued.

But it’s shocking that some Republicans lawmakers — in Congress and some red-state legislatures — are doing their dirty work. They have forgotten what real tort reform was all about: stopping abusive suits and outrageous damage awards. It was never about blocking meritorious lawsuits, or making it harder to pay for them.

Attacks on litigation financing takes three forms. One, being pushed in Congress by Sen. Thom Tillis, would impose punitive taxes to destroy the investment incentive and force litigants to hand over the names of those financing important litigation to the Internal Revenue Service (IRS).

Conservatives should not create new mechanisms that hand the IRS — an agency with a well-documented history of targeting our groups and causes — the identities of those supporting conservative legal fights. The bureaucrats that targeted Tea Party groups faced few, if any, consequences. No doubt a future hostile administration would use such list to audit, harass or intimidate the financial backers of cases that advance conservative causes.

The second form is overregulation, exemplified by a bill in Missouri that threatens funders with liability if an attorney makes a mistake. The third and most common, found in several federal and state proposals, is forced public disclosure of identities and financial details — doxxing funders. Publicly exposing the identities of litigation funders invites harassment campaigns from the very entities and activist groups that conservatives are fighting in court.

None of these laws distinguish important, meritorious cases from abusive ones. And just like “gun-free zones” don’t make us safer, none of these laws are likely to stop abusive lawsuits. The chilling effect will harm legitimate funders, especially conservatives, much more than any bad actors.

Sponsors often claim to be concerned that funding might come from nefarious foreign sources, but then fail to limit their bills to those situations. Nobody wants money from China funding lawsuits in the United States, but the solution is to ban funding tied to foreign adversaries.

That’s simple. Instead, this concern becomes a smokescreen to mask from the broad attack on all litigation funding.

If these attacks succeed, they will stifle the conservative legal movement at a critical moment. Lawsuits and the threat of legal action are beating back woke policies like DEI and ESG.

We are just beginning to see lawsuits from detransitioners for the grievous malpractice of performing sex change surgeries on children. Changing the law to cut off funding for these cases would amount to legislative malpractice for any conservative lawmaker.

The way to reduce abusive lawsuits is with reforms targeting abusive lawsuits — not by making it harder to pay for litigation. Attacks on litigation finance tilt the playing field in favor of the biggest, and often wokest, corporations.

That seems to be the real goal of legislation that targets litigation finance.

Trent England is founder and executive director of Save Our States.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.