Ten years ago, Bernie Sanders raged against a bill in Congress that would provide liability immunity to a large industry whose products were killing Americans. Sanders, then Vermont’s sole member of the House of Representatives, told the Brattleboro Reformer that the bill set for passage would knowingly allow large corporations to sell harmful products and protect them from “legitimate consumer lawsuits.” The legislation went “far beyond” protections from frivolous litigation, which Sanders contended judges and juries were already doing a fine job of dismissing.

Sanders was talking about the so-called “cheeseburger bill” of 2005, which gave food companies like McDonald’s protection from lawsuits that alleged their products contributed to obesity or heart disease, unless they “knowingly” misrepresented themselves in marketing materials. But on the same day his comments were published in the Reformer, a similar bill defending another large industry from a range of civil liability claims came up for a vote in the House. This time the beneficiary was the gun industry — and Sanders had no problem shielding it from legal challenges. He voted in favor of the Protection of Lawful Commerce in Arms Act (PLCAA), joining 59 other Democrats.

As he prepares for the first Democratic Presidential debate on Tuesday, Sanders’s vote is coming back to haunt him. On Sunday, he was forced to backtrack on Meet The Press, saying it was a “complicated vote” and that he would be “willing to see changes in the provision.” The episode has surfaced as a liability for a liberal politician who made his name as someone eager to stand up to big business, not for it. It won’t be a surprise to see Hillary Clinton, who voted against the bill as a Senator from New York and has made gun reform a prominent part of her platform, press Sanders on his support for PLCAA as she seeks to blunt his insurgent campaign.

Explaining the vote to NBC’s Chuck Todd, Sanders adopted a version of the argument used by its original boosters, which included the National Rifle Association: He was voting, he said, to protect small-town Vermont gun owners from being sued out of existence due to the behavior of their customers. At the time, many proponents pointed to a $2.5 million settlement struck in 2004 between survivors and families of six victims in the Beltway sniper attacks and the manufacturers of the Bushmaster rifle used in the spree and the gun shop it had been stolen from. Champions of the PLCAA like Wisconsin Congressman James Sensenbrenner called the lawsuits that mounted against gun companies in the late ’90s and early ’00s “frivolous and abusive.” Just before the bill’s passage, the National Shooting Sports Foundation, an industry group, said that gun companies had spent a collective $200 million defending itself against these claims. NRA executive vice president Wayne LaPierre called the bill’s passage a “historic victory,” and said it would prevent “lawsuits [that] sought to bankrupt a lawful, highly regulated industry by holding manufacturers and retailers responsible for the unforeseeable acts of criminals.”

But the threat was not so dire as Sanders and other PLCAA supporters let on — because by 2005, it was clear that the gun industry had been mounting a very successful legal defense on its own. In a paper published that same year in the book Suing the Gun Industry, law professor Wendy Wagner wrote that if the goal of these suits was to wring damages from gun companies, “gun litigation has been an utter failure. Plaintiffs claim no significant victories and appear pleasantly surprised when their case survives a motion to dismiss.” Gun companies were not about to face the same transformative legal assault that had recently rocked the tobacco industry. Timothy Lytton, who edited Suing the Gun Industry, tells The Trace that even before the gun industry secured the shield law it wanted, courts were dismissing most of the suits that sought to hold those companies accountable for violence.

But if the financial threat posed by the cases was a gun lobby bogeyman, gun companies did have another reason for wanting the lawsuits to go away. “They exposed some information about how they distribute weapons,” Lytton says. “They put the spotlight on the role of industry in supplying weapons for illegal trade.”

In her paper, Wagner addressed the true stakes of the fight over legal immunity. “The gun industry faces numerous, unchecked incentives to keep incriminating gun distribution and manufacture to themselves,” she wrote. Because guns are overwhelmingly made and distributed by privately held companies that face fewer disclosure requirements than publicly traded companies, Wagner argued that “gun litigation may be the best and only way to access and publicize privately held information relevant to gun safety.” Much of the information about how the gun market actually works is what’s known in the trade as “stubborn” — that is, deliberately withheld from policymakers.

While gun lawsuits were failures when it came to getting tobacco industry-sized settlements, they had at times unearthed important information. For example, in 2003 a group of California cities sued gun dealers. They didn’t win in a jury trial, but they did get an NRA executive to testify in a deposition that the industry actively resists efforts to prevent guns from falling into criminals’ hands. That morsel of testimony was just the beginning of a promising thread for further investigation — that under the PLCAA would likely never see the light of day.

Little is known about why Sanders voted in favor of a federal law that made it almost impossible for cities and other plaintiffs to use the courts to dig into how legally-manufactured guns end up in criminals’ hands. A review of press clippings by The Trace found that Sanders did not comment on the vote in the days before and after it passed. The next year, Sanders ran for and was elected to the Senate.

[Photo: Michael Vadon]