By Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

When you read about a lawsuit against a nursing home, do you usually assume that the alleged victim was mistreated and the nursing home should be punished, or that some lawyer is looking for a jackpot verdict?

Deep-pocketed supporters and opponents of a proposed amendment will try to encourage those assumptions in their favor between now and November.

“An Amendment to Limit Attorney Contingency Fees and Non-Economic Damages in Medical Lawsuits” would direct the Arkansas Legislature to limit pain and suffering damages to at least $250,000. (Please note the words “at least,” my fellow reporters who keep omitting those words.) Trial lawyer contingency fees would be limited to 33 1/3 percent after expenses. There would be no limits for other types of damages.

Where’s this debate headed? In politics, always follow the money.

Health Care Access for Arkansans, the group supporting the amendment, raised $871,088.50 in May, June and July, according to campaign finance reports. Of that, $580,000 came from the Arkansas Health Care Association, the group that represents nursing homes, and much of the rest has come from nursing homes and associated entities. Medical groups and providers have not been as active, but they will become involved, said David Wroten with the Arkansas Medical Society.

Those are some deep pockets. Expect to see ads about predatory lawyers as the election nears.

Those lawyers also have deep pockets. A group opposing the amendment, the Committee to Protect AR Families, formed July 12. In less than three weeks, it raised $420,430 from 18 lawyers and law firms, including Fort Smith attorney Joey McCutchen and the McDaniel Law Firm in Little Rock, both of which gave $100,000, and an Illinois law firm, Simmons Hanly and Conroy, which gave $75,000.

There are a lot more lawyers in and out of this state, so expect that pot to grow. That means you’ll be seeing ads about nursing home victims.

You can look at this cynically: Everyone’s just trying to make sure their pockets remain deep. The lawyers want to be able to sue for millions of dollars. The nursing homes want to protect their you-know-whats.

The two sides will accuse their opponents of behaving cynically while describing themselves idealistically – that nursing homes are just trying to serve patients and families, while lawyers are trying to protect victims and prevent victimhood.

As in most campaigns, to get to the truth, voters will have to advance past cynicism but stop short of idealism. In other words, they’ll have to be realistic.

The realistic view is that of course everybody is trying to benefit their own financial situations.

At the same time, nursing homes provide an indispensable daily service to a vulnerable population amidst often grim and difficult situations. Bad things would happen even if humans never made mistakes, which they do. Nursing homes must provide a service while making a profit at a price families and society can afford. That being the case, society’s expectations of nursing homes ought be in line with the resources it provides them. They can’t be perfect.

However, while human error is inevitable, negligence is unacceptable. If a nursing home can’t figure out how to make a profit and provide good care, then it shouldn’t be in business. Providers must be forced to remain vigilant, and one way to do that is through painful financial consequences. That’s why we have lawsuits, and to have lawsuits, we must have lawyers.

All of us, including supporters and opponents of the amendment, can all agree that the old and infirm must be given dignified care – if necessary, in a nursing home. We can all agree that the care must be affordable. And we can all agree that there must be consequences when standards aren’t met.

Achieving those three, all at the same time, is a difficult balance. Voters will decide if limiting non-economic damages and lawyers’ fees is the best way to reach that balance, even while various groups with deep pockets naturally will want to tip it in their favor.

By Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

Are you dissatisfied with the candidates but uncomfortable voting for the “lesser of two evils.” Maine may have a solution: ranking your choices.

Mainers will vote this November on implementing ranked choice voting, where in a multi-candidate race they would mark their first, second and third choices. If no candidate receives a majority, then the candidate with the fewest first place votes is eliminated. Their votes are awarded to their voters’ second choice candidates. If there’s still no majority winner, the process continues until one candidate has a majority.

Such a system is uncommon but not unheard of. In Arkansas, military and overseas voters rank their choices because there isn’t time to mail them a ballot if there is a runoff. According to FairVote, an election reform supporter, 11 cities elect their city officials using ranked choice voting. It’s how Ireland chooses its president and Australians their Parliament.

Supporters say such a system, otherwise known as instant runoff voting, ensures winning candidates have majority support. Under the current system, when there are multiple choices, the favorite candidate of a minority can be elected over several candidates with broad appeal who split the vote. Party primaries below the presidency solve that problem with runoffs, which are costly and often attract a low turnout. But general elections are winner take all, which, through the Electoral College, is how Bill Clinton became president in 1992 with 43 percent of the vote.

A ranked choice system also makes it easier for voters to vote their conscience. Voters are forever being told they must vote for the major party candidate they fear least lest they help the more objectionable candidate win. Voters in a ranked choice system can support the candidate who reflects their values, giving him or her a fighting chance, while their second choice votes will go to their preferred – or less unpreferred – major party candidate.

Supporters say a ranked choice system forces candidates to try to appeal to a broader slice of the electorate and to run a more positive campaign. Current campaigns are won by firing up the base by pitting Americans against each other. In a ranked choice system, second choice voters may provide the margin of victory, so candidates have an incentive not to alienate them.

Ranked choice voting really is no different than how we make decisions elsewhere in life. Sometimes the doughnut shop is out of our favorite, so we pick our second favorite from among a wide selection. Under the current system, voters often have only two doughnuts from which to choose, both of which they may dislike – or there may be a third that’s in the back that no one tells them about.

The negatives? Ranked choice voting is more complicated, would require investing in new voting technology, and may not make much of a difference in Arkansas.

Maine has a history of multi-candidate elections where the governor is elected by a minority – less than 40 percent in five of its last 11 elections. One of its U.S. senators, Angus King, is an independent.

Arkansas does not have a strong third party presence or a history of independent candidates, though it did vote for independent George Wallace for president in 1968. There lately haven’t been a lot of races with multiple credible candidates for major offices, or a lot of runoffs in party primaries.

Maine’s proposal does not apply to the presidential race, which is governed by both state law and party rules. Arkansas would have had to work with the national parties to implement ranked choice voting before this year’s primaries, and who knows how that would have turned out. But there would be no problem changing the law for the general election.

It’s clear that Americans are unhappy with their democracy. Typically they respond by trying to change people, which is why Trump and Sen. Bernie Sanders, two candidates very different from the norm, won so much support. But attempting change through people is often disappointing because the system keeps one person from having too much power, thank goodness. To make lasting change, change the system.

Is ranked choice voting the best way to do that? I’m willing to try this doughnut, or at least let Mainers do it and ask them how they like it.

By Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

Many Arkansans are unhappy with both Donald Trump and Hillary Clinton as their choices, and so are some Arkansas lawmakers. But how many are willing to say they don’t support their own party’s nominee? So far, at least one.

Rep. David Meeks, R-Greenbrier, says he is “99.9 percent sure” he won’t vote for Trump and definitely won’t vote for Clinton.

Meeks, who last year adopted three boys under age four, says he is “a Christian first, a conservative second, and a Republican third.” He says Trump is unfit to be president, even dangerous.

“It’s more about the bullying, the intimidating, the fact that he just doesn’t seem to understand diplomacy, doesn’t seem to be humble,” he said.

Won’t his voting for someone else help Clinton because it’s one less vote for Trump? Meeks doesn’t see it that way. Trump will win Arkansas regardless, he said.

One other legislator has declared his opposition to both Trump and Clinton – the Legislature’s only independent, Rep. Nate Bell of Mena. Bell was elected as a Republican six years ago but left the party last year and isn’t running for re-election.

The outspoken Bell has very publicly opposed Trump for a long time. He says Trump promotes bigotry and “a version of nationalistic populism that is eerily reminiscent of virtually every dictator in the history of the world.”

Trump, of course, is the Republican nominee, and so therefore most Republican lawmakers will support him. Regardless of their feelings toward him, they oppose Clinton.

But Bell said few lawmakers with whom he’s spoken enthusiastically support Trump. Those particular lawmakers don’t want to offend Trump supporters, so they’re making a political calculation. They expect him to win Arkansas but lose the election, and they’re trying to remain viable.

“When he loses, someone’s going to get blamed, and typically that blame’s not going to be placed on Hillary,” he said. “The blame’s going to be placed on Republicans who didn’t support Trump sufficiently to help him win.”

Bell said he probably would keep his views much more to himself were he running for re-election in his pro-Trump district. Similarly, Meeks said it’s easier for him to stand on principle because he doesn’t have an opponent in the fall.

“Arkansas is going Trump, and it’s just not a battle that you really want to face or you really want to deal with,” he said of his fellow lawmakers.

Meeks will be considering the alternatives who have qualified or have submitted signatures to qualify for the state’s ballot, among them Gary Johnson, the Libertarian Party candidate; Darrell Castle of the Constitution Party; or a new organization, Better for America, that was started by John Kingston, a conservative donor and Mitt Romney ally. It hasn’t selected a candidate yet.

Like Meeks, Bell is surveying his options but will probably vote for Johnson. He’s imagined the various scenarios where someone besides Trump or Clinton is elected. Remember, the president is elected by the Electoral College, not the popular vote. The map favors Clinton, so the key for a third party candidate is to keep her from winning 270 electoral votes. Johnson would have to win New Mexico, where he was a Republican governor, and a few other states, including Utah, which normally votes Republican but where Trump isn’t popular. A poll by utahpolicy.com found Johnson’s support in that state rising to 16 percent.

So it’s at least imaginable that Johnson wins enough states that no candidate wins the required 270 votes. Under the Constitution’s 12th Amendment, the next president then would be selected by the House of Representatives, with each state having one vote. In that scenario, maybe some kind of coalition develops and the House picks Johnson. Meeks imagines a similar possibility, with the Senate picking a Democrat as vice president to balance the ticket.

The other possibility is that a politician with a national stature – Ohio Gov. John Kasich or Romney – runs under the Better for America banner, Bell said. Ohio has 18 electoral votes and is a critical swing state.

These scenarios are highly unlikely but possible. In 1824, Andrew Jackson won the popular vote but didn’t win a majority of electors, and the House chose John Quincy Adams.

Of course, what probably will happen is either Clinton or Trump wins more than 270 votes. More likely it will be Clinton, while Trump wins Arkansas while supported – enthusiastically or not – by almost all of the state’s Republican elected officials.