Capitol Offenses

By late evening on September 13, Gov. Rick Perry was crowing over the passage of Proposition 12. The $750,000 cap on noneconomic damages for pain and suffering in medical malpractice lawsuits is now officially part of the Texas constitution. More importantly, future legislatures will have the power to limit settlements in other types of lawsuits. Every industry that wants their very own cap can be expected to fill Republican campaign coffers to get it. Yet one wonders if Perry’s celebration is not tempered by a slight sense of unease.

Backers of Prop 12 had given themselves every advantage. The election was held on a Saturday in September when the fewest number of voters would be expected. The ballot language was deliberately vague and misleading. Despite scant evidence to support their case, Republicans had cast the debate over the proposition as one of access to medical care. They knew that given the choice between lawyers and doctors, the public will choose the latter every time. Both Perry and his wife had campaigned aggressively in favor, generating media coverage at every stop. In June, polling by opponents had shown the proposition winning by almost 30 points. But on Election Day, it barely passed, squeaking to victory by just under two points. The 12 percent turnout was three percent higher than the Secretary of State had estimated.

The narrow margin and the elevated turnout can be attributed in large part to a remarkably broad coalition in opposition. It ranged from the Sierra Club to bass fishermen, from Mothers Against Drunk Driving to the AARP, from police unions to the ACLU, and from the Stonewall Democrats to the Texas Eagle Forum. On the left, groups that rarely stray from their parochial issue recognized a common, if not immediate threat, and joined forces. From the right, opposition to Prop 12 exploited an innate tension between the corporate and social-conservative wings of the Republican Party. It’s a conflict the GOP’s absolute control of the government exacerbates. The reigning powers have to wonder if this new coalition is trouble for business as usual in the Lone Star State.

Three days before the vote on Prop 12, Texas Eagle Forum State President Cathie Adams addressed the Irving Republican Women’s Club. Irving is a wealthy white suburb of Dallas. The Republican women hold their monthly luncheon meeting at the Las Colinas Country Club, in an area surrounded by manicured homes and well-heeled boutiques.

The president of the club, Sue Richardson had made it clear to everyone that she supported Prop 12. In a letter to the editor in the Dallas Morning News, Richardson wrote: “What have the courts done with the power we have given them? Have they used it to overturn unjust and unreasonable verdicts that run doctors and companies out of business? No! Has their decision-making been influenced by the power of trial lawyers? Obviously!”

To her credit, Richardson felt the need to present the other side of the argument to the club. The club thus brought in Cathie Adams. After the meeting, Richardson also qualified her condemnation of the courts, confining it to south Texas, and not to the conservative jurists she supports in Dallas County. As the Mexican help cleared away the salad bar, Richardson confided that the constitutional amendment was not written exactly as she may have liked. For example, she might be more liberal with the damage awards, but Republicans had to strike while they had the opportunity. After all, look how long it was taking just to pass redistricting. “I think [Cathie Adams] is more idealistic than I can be,” Richardson concluded.

Adams explained to the club how it all began for her, president of a Republican leaning organization that boasts a mailing list of 5000. For Adams, it was the leadership’s use of the majority to ram through tort reform, paying no heed to the other side that first alarmed her. After establishing her Republican credentials by pledging support for Perry, the Texas Eagle Forum President told how she loves to watch the Lege debate. But on “tort reform,” that is not what she witnessed.

“I saw the bill author [Houston Republican Rep. Joe Nixon] sit on a chair–not stand behind the podium–cross his legs, fold his hands, and cock his head. The word out on the floor was vote against every amendment,” she remembered. “I wanted to watch a debate. If somebody has a better argument on the Democratic side, then so be it. If somebody has a better argument on the Republican side, then so be it. But that wasn’t the case.”

Her apprehension grew after she talked with several freshmen Republicans whom she had helped to elect. “They were being pressured in a major way, ‘vote for no amendments,'” she learned. “That is a corruption of a system and it doesn’t work that way in order to produce excellent legislation.”

Later, out of earshot of her fellow Republicans, Adams worried about the impact of such tactics on her party. “If we are going to be telling everybody that they are going to be rubber stamps for somebody else’s agenda, then we are crippling the whole process,” she said. “I think we are making the party weak by doing this.”

That “somebody else,” she made clear in her talk, was big insurance. “I think we need to shine a light on those insurance companies–the ones that were sitting with that committee and that bill author writing this bill,” she told the dozen or so gathered for the luncheon.

It was the industry’s losses in the stock market that have caused malpractice and homeowner’s insurance rates to skyrocket, she explained. High rates were not the result of lawsuits, just as Prop 12 would not bring about meaningful tort reform.

And ultimately, Adams believed that Prop 12 represented an elitism that ran counter to “the independent-minded” spirit of Texas. “Am I going to trust that sausage factory in Austin to set non-economic damages or am I going to trust the millions of Texas jurists?” Adams asked. “We have to have men and women of integrity down there who will think for themselves.”

Richardson allowed only a few questions. The scattered comments focused on greedy ambulance chasers and fears that there would be no trauma care to help their kids after an accident enroute to Padre Island. It appeared Adams had not made much of a dent.

Later, after the luncheon, Adams acknowledged that she might well suffer for her strong stance. “I got a comment from a person for whom I have a lot of respect that my access to certain elected officials may be hampered in the future, that I may have problems,” she said. “I don’t know what those will be. All I know is that I’m doing what my conscience is telling me to do–I sleep well at night–that matters a lot more to me.”

Participants on both sides of the left-right coalition to defeat Prop 12 laud Rob Allyn’s media campaign. The wealthy trail lawyers who bankrolled the No On Prop 12 effort chose Allyn to help craft and disseminate their message. The Dallas-based political consultant has spent the past twenty years running campaigns for Republicans. Reached by phone two days after the defeat, Allyn describes an obvious, but important reality that informed his campaign: “Republicans are consumers too.”

Allyn seized upon several approaches with crossover appeal. “We took it off its ideological, partisan plane,” he contends.

He positioned opponents of Prop 12 as seeking to protect courts, juries, and judges. Proponents of the measure were painted as big insurance companies and business lobbyists. “It was about keeping power in the hands of juries and courts, not those of elected officials and special interests,” explained Allyn.

In this, the campaign was aided by a noticeable public antipathy toward the Texas Legislature. To play on this amongst Republicans and anti-government independents, Allyn crafted a mailer noting the Democratic flight to Ardmore and Albuquerque and asking whether voters wanted to trust such politicians to set lawsuit limits. He stressed the value of human life. Who should be trusted to measure it? Finally, in a conservative, tradition-bound state, Allyn wrapped his campaign in the defense of the constitution, glossing over its less than inviolate history.

In Allyn’s estimation, his two most successful advertisements involved a frontal attack on Rep. Nixon, the sponsor of tort reform and an emotional commercial featuring a burn victim. After those commercials, he said, Prop 12 proponents dropped 20 points in the polls.

The grassroots campaign to stop Prop 12 mobilized almost organically, relying heavily on members of the coalition and locally driven efforts. A month before the vote and independent of the main body of trial lawyers, Ralph Nader’s Democracy Rising sent down an organizer named Jason Kafoury. “There was an intense focus by both sides of trying to hit likely voters,” said Kafoury. “I thought [Prop 12] would effect everybody.”

He focused on getting the word out. His group organized the distribution of a 180,000 small pamphlets and staged 25 separate events. They also relied heavily on phone banks, as did Allyn. Kafoury tapped into a new activism spurred by redistricting. “There was a lot of grassroots volunteers,” he says. “People were fired up.”

Kafoury and others identified leaders from the coalition throughout the state. He gave them instructions and checked up on them.

The group’s greatest success was in Travis County where 15.80 percent of the voters went to the poll, handily beating the measure. The group also did well in the big urban populations of Dallas and Harris County. Allyn points to strong showing for no votes on 12 in heavily Republican areas like Tyler County, Tarrant County, and Collin County. The measure failed in Brazoria County, represented by Rep. Dennis Bonnen, a staunch advocate of the measure.

In the end, Prop 12 passed by about 33,000 votes. Ask any political campaigner and they will tell you it’s much worse to lose by two points than 20. Despite coming from behind, the anti-Prop 12 campaign faltered in the end for lack of an overall structure. “There was no campaign manager,” rued Kafoury.

Trial lawyers have often been leery of funding grassroots campaigns, preferring instead to rely on paid media they can control better. “The Trials have been losing every time they use that strategy,” notes Kafoury. “They should have organized the grass roots structure two months earlier.”

Ultimately, the anti-Prop 12 crowd lost the election in traditionally democratic Latino areas like the Rio Grande Valley where the lack of doctors and high insurance rates are realities. Organizers failed to capitalize on the anger toward Gov. Rick Perry in the valley. They lost El Paso by almost 5000 votes. The measure also passed in Cameron County, Nueces, and almost in Hidalgo County.

“There was no good outreach into Hispanic areas,” says Kafoury.

Exhibiting little of the pessimism shared by many Texas progressives reeling from a string of defeats, Jason Kafoury is upbeat about the possibility of positive change here. “I think there is a lot of potential in Texas,” he says.

Rob Allyn agrees. He asserts the alliances will survive beyond this battle. “I do believe this is a coalition that will persist,” he says.

Allyn also makes a case that will no doubt please his patrons. Trial lawyers may some day soon be let out of the public doghouse. “I think there was a major shift in the attitude about tort reform,” says Allyn, commenting on the surprising showing in some typically Republican areas.

He notes that as proponents started to drop in the polls, they shifted all of their focus to advertisements about greedy trial lawyers, but it didn’t help as much as in the past. “Tort reform used to be a slam dunk,” he says. “Now it is a much more nuanced subject.”

Kafoury warns that the coalition won’t have much of a chance without goals, organizers, and funds. And surely progressives and conservatives will clash once again on issues like abortion, the death penalty, immigration, and gay rights.

“We can disagree without being disagreeable,” both Adams and club president Sue Richardson repeated mantra-like during the luncheon. It’s a lesson worth remembering for progressives if the GOP leadership and its corporate backers continue to try and grab everything on the table. Although it appears the implications of the election might have registered with Perry. Far from seeking retribution, within days of the vote, Gov. Rick Perry called Cathie Adams to congratulate her on the birth of a granddaughter.