Category Archives: State government

Tort reform: Shades of gray

Legislature, Politics, State government

By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.

Arkansas legislators sometimes cast difficult votes on shades-of-gray issues where values conflict and where it comes down to which side they think is more right or less wrong. In November 2018, so will voters.

That’s because the biggest race on the ballot won’t involve candidates. Instead, it’s looking like the biggest issue will be a proposed constitutional amendment that would limit how much juries can award in a lawsuit. It’s going to be a heck of a fight. In fact, it already is.

Every two years, legislators are allowed under the Constitution to refer three amendments to the voters, but this time they plan to limit it to two, one each from the House and the Senate. Thirty-one amendments were proposed between both chambers, but it’s been clear for a while that the Senate would focus on a tort reform measure. Senate Joint Resolution 8, sponsored by Sen. Missy Irvin, R-Mountain View, has 14 co-sponsors in the 35-member Senate and 53 co-sponsors in the 100-member House. It is backed, strongly, by a coalition of powerful business groups under the umbrella of the Arkansas State Chamber of Commerce.

The amendment would do four things. First, it would cap punitive damages – those that really punish a bad actor – at three times the compensatory damage awarded each claimant, with an exception created for intentional conduct. Legislators could vote to increase the cap with a two-thirds vote. Second, it would cap non-economic damages (pain and suffering) at $250,000 per claimant, or $500,000 to the beneficiaries if the victim dies. Third, it would cap lawyers’ contingency fees at one-third the total judgment. Finally, it would give legislators the final say in various rules for the courts and the Arkansas Supreme Court, a provision included because supporters say the Court otherwise could just ignore the rest of the amendment.

On Tuesday, the all-Republican Senate State Agencies and Government Affairs Committee advanced only that measure to the full Senate, politely hearing but never seriously considering the other Senate proposals. But it only passed 5-3, even though you would think Republicans would be totally for it because it’s pro-business and anti-lawyer. One senator who didn’t raise his hand, Sen. Terry Rice, R-Waldron, said afterwards only that he “wasn’t ready to vote.”

On Thursday, the full Senate approved it, but again, not overwhelmingly. A number of senators initially declined to vote until they saw the initial count, and then one by one, the number rose until it had enough votes. It was pretty dramatic, actually.

It still must pass the House, which it should do. Assuming it makes the ballot, then voters will be lobbied hard by well-funded opponents – the business community and the healthcare community on one side versus the legal community on the other.

Supporters will say that under current laws, businesses and healthcare providers must defend themselves against dubious lawsuits with the threat of a jackpot verdict always hanging over their heads. Small business owners live in fear of a lawsuit that will put them out of business. Doctors and hospitals pay sky-high medical malpractice insurance rates and order unnecessary tests and procedures to keep from being sued. Without tort reform, big employers will bring, or take, their jobs to other states.

Opponents will argue the amendment sets penalties so low that they don’t even amount to a slap on the wrist for big businesses. They’ll say it puts a price tag on human life, weakens a fundamental right to a trial by jury, and assumes Arkansas juries will not make commonsense decisions. Even some Republicans say it interferes with individuals paying their lawyer whatever they want. Finally, the part about the Legislature telling the Arkansas Supreme Court how to set its own rules – that was one of the things troubling Sen. Rice.

Tort reform is a big issue, and it will be fought with big dollars. But for many voters, it will be about the small: the local hardware store owner afraid of losing everything he’s worked for; the rural family doctor contemplating closing her practice and moving to a big-city hospital that will take care of her malpractice insurance; the child who lost his daddy because of a corporation’s negligence.

In other words, there’s a lot of gray, or at least, there’s a lot of black and white on both sides. You ready to vote?

All politics is now national

Elections, Legislature, Politics, State government, U.S. Congress

By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.

“All politics is local,” the late U.S. Speaker of the House Tip O’Neill used to say, but that’s no longer the case. Now, all politics is national.

That’s according to Dr. Alan Abramowitz, an Emory University political science professor who spoke at the Clinton School of Public Service Thursday.

Abramowtiz said straight ticket voting, where voters choose candidates from the same party in all races, reached its highest level in 2012 in the 60 years that it’s been studied, and preliminary research shows 2016 no doubt followed that trend. That’s increasingly true whether voters are strong partisans, weak partisans, or independents who lean toward one party or the other. Most of those last folks are just “closet partisans” who won’t admit to themselves or to others that they are really a Republican or Democrat.

Abramowitz said this trend is being fueled by two causes: the increasing influence of presidential elections on down-ballot races, and the rise of “negative partisanship.” That’s where Americans are increasingly voting in partisan ways not because they like their party more but because they dislike the other party so much.

It wasn’t long ago that states and districts commonly selected one party’s candidate for president and the other party’s candidates in some of the congressional and other major races. The most famous example in Arkansas occurred in 1968, when voters pulled the lever for independent presidential candidate George Wallace, Democratic Sen. William Fulbright, and Republican Gov. Winthrop Rockefeller. Even as Democrats dominated Arkansas politics until 2010, the state was voting for the Republican in every presidential election starting in 1980 except for 1992 and 1996, when a native son was on the ballot.

Back then, Arkansas Democrats could differentiate themselves from the national party even if they were more liberal than their constituents by restraining their impulses and emphasizing their independence.

Now, it’s all about the party and the presidential candidate. Asked by American National Election Studies to rate parties on a temperature scale with 100 being hottest and 0 being coldest, since 1978 Americans have consistently rated their own party around 70 degrees. However, the opposing party had dropped from just below 50 degrees to 30 degrees by 2012. Fifty-eight percent of Democrats rated President Trump at zero, and 56 percent of Republicans gave Hillary Clinton the same score. Sen. Mark Pryor’s incumbency and last name netted him all of 39 percent against Sen. Tom Cotton in 2014, when Pryor was one of four Democratic incumbent senators to lose in states that had voted for Republican Mitt Romney two years earlier. In 2016, all 34 Senate races were won by the candidate whose presidential candidate won the state. In fact, the only two incumbent senators who lost were Republicans in states won by Clinton. Of the 435 U.S. House seats, 400 were won by the candidate whose party’s presidential candidate won their district.

The old tools – incumbency, principled leadership, dedicated constituent service, even bringing home the bacon – simply don’t cut it any more. Pity the Democratic state legislators in Arkansas who try to buck the trend by explaining to 30,000 (in the House) and 86,000 (in the Senate) constituents why they’re still Democrats but different than Nancy Pelosi. That’s why Democrats in this state are either losing, not running for re-election, or switching parties, as three state legislators did following the November elections.

In hindsight, Gov. Mike Beebe’s 64-36 re-election in 2010 against a decent Republican opponent, and subsequent high poll numbers throughout the rest of his term, remain one of the most impressive political achievements of recent years. Of course, he didn’t have to run in 2014, as Pryor did.

Abramowitz did not offer much hope for Arkansas Democrats, or for the declining numbers of us truly independent voters, or for people who just don’t like partisan politics. We’re now trapped in a cycle. Politics in Washington, D.C., is becoming increasingly confrontational, which fuels voter disgust mostly with the other party, which encourages even more confrontational behavior in Washington, D.C.

So for the foreseeable future, all politics, or at least most of it, will be national. I wonder what Tip O’Neill, the dealmaker, would have to say about that. I wonder if he even would have been elected.

Follow the money

Elections, Legislature, Politics, State government

Rep. Jana Della Rosa, R-Rogers, argues for House Bill 1427 in committee.
By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.

There’s a scene in “All the President’s Men,” the movie about the Washington Post reporters who dogged the Nixon White House until the president resigned over Watergate. Reporter Bob Woodward, played by Robert Redford, meets in a darkened garage with his background source, “Deep Throat,” played by Hal Holbrook, and says the story is stuck. “Follow the money. … Just follow the money,” Holbrook’s character tells him.

It’s as true today as it was then. It’s my experience covering the State Capitol that most elected officials at the state level are decent folks, and when they compromise, it’s more often out of strategic necessity than a failure of character. Still, if you want to know the whole story in politics, you always have to follow the money.

Rep. Jana Della Rosa, R-Rogers, agrees, which is why, just as she did in her first legislative session in 2015, she’s sponsoring a bill that would make it much easier for any citizen with an internet connection to do what Woodward was trying to do.

House Bill 1427 would require candidates for constitutional offices (governor, attorney general, etc.), judicial offices, and state legislative seats to file all of their campaign finance reports online in a new, searchable database.

Here’s how that would change things. Currently, anyone can go on the Arkansas secretary of state’s website (votenaturally.org) and pull up the campaign finance reports for each individual candidate, one month at a time.

If House Bill 1427 passes, journalists, watchdog groups and average citizens could quickly search everything in the database and determine which lobbyists or political action committees have donated how much to whose campaigns. If an industry gets special treatment under the law, it would be much easier to see if campaign donations might have played a part.

If that last paragraph sounds like I’m bashing elected officials, I’m not. Winning elected office requires campaigning, and campaigning requires money, and then afterwards the winning candidates must make decisions that affect their donors. It’s not a perfect system, but it’s the one we have.

Efforts to limit campaign donations in recent years have failed, partly because of court decisions and partly because ours is a free market society where money will find its way to power. But we also have an open society where information is often even more powerful than money. So one very workable solution that is consistent with both a free market society and an open society is to make it really easy for average Arkansans to follow the money.

Della Rosa’s bill failed in 2015 based on some good excuses and some lame ones. Legislators said many candidates did not have access to reliable internet service, and they complained about the state’s balky online reporting system – both very good excuses. In 2016, Della Rosa pushed through an appropriation to build a new and very good online system that cost $670,000. So that good excuse is out. There’ve been two more years of improving internet service across the state, and the bill would let legislators in truly underserved areas file their reports the old-fashioned way, by paper. So that good excuse is pretty much gone, too.

That just leaves the lame excuses, such as the one offered in 2015 by one legislator who said he represented a district with a large paper industry presence, so he couldn’t vote for a bill that would reduce the use of paper.

Della Rosa’s bill passed the House State Agencies and Governmental Affairs Committee comfortably Wednesday on a voice vote. Several legislators spoke supportively. Rep. Kim Hammer, R-Benton, said the bill would force him to change his habits, but he was willing to do so because of the good that would come of it.

The bill now moves to the full House, where it was expected to be debated Friday and where it must pass by a two-thirds majority because it changes two initiated acts approved by the voters. Then it must pass through a Senate committee and the full Senate before landing on the governor’s desk.

Every legislator who votes for the bill is inviting more accountability and transparency. Instead of forcing voters to stumble around a darkened garage, they’re bringing a flashlight and shining it on themselves.

To borrow a line from another movie, “Jerry Maguire,” if it passes, it will show us the money. If we don’t follow it, it’s our fault.

Campus guns: Whose choice matters?

Legislature, Politics, State government

Charlie Collins speaks on the House floor in favor of House Bill 1249.
By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.

Should college and university employees with concealed carry permits be allowed to bring their weapons on campus, and, just as importantly, who should make that decision? That’s what’s being debated in the Legislature.

House Bill 1249 by Rep. Charlie Collins, R-Fayetteville, would require the state’s higher education institutions to allow staff members to carry guns. Four years ago, he passed a similar bill with one major difference: When faced with opposition from colleges and universities, he amended it to let them opt out. All of them did. House Bill 1249 would not let them opt out.

The bill has advanced through the House Judiciary Committee and the full House of Representatives. It passed easily both times over token Democratic opposition, which, these days, is about the only kind. It next was to appear before the Senate Judiciary Committee, where Republicans compose seven of the eight committee slots. If it passes there, it’s on its way to becoming law. Prior to the session, Gov. Asa Hutchinson said he was comfortable letting institutions set their own policies. He hasn’t taken a position on the bill, but don’t look for him to veto it.

Collins thoroughly laid out his case before the committee and the full House. He recited a grim list of public massacres and then cited research showing these attacks are not random. Instead, the killers coldly and calculatingly prepare their deeds in order to gain attention and air their grievances. After perhaps targeting a few victims, they shoot randomly with no plan for escape.

There is no way for law enforcers to prevent this, he argues, and no way officers can respond before people are dead and wounded. Most attacks end with an intervention by administrators, faculty, or students or by the actions of the attackers themselves. That means society’s best chance is to make it easier for someone on the scene to neutralize the attacker. Meanwhile, because these attacks are plotted, the fact that someone on campus could have a gun might make the plotter consider another target.

Could the risk of gun accidents outweigh the potential benefits? Collins says no. The bill would not allow students to carry a concealed weapon or allow weapons to be stored in dorms. Arkansas has a very good concealed carry permitting process that prevents crazies from getting a license. In fact, permit holders statistically are more law-abiding even than law enforcement officers.

That’s Collins’ argument. Colleges and universities, on the other hand, do not want more guns on campus. They say they and their law enforcers are better able to decide how to keep their campuses safe than legislators in Little Rock. There’s a concern that arming only the professors and staff means they become the first targets.

Steve Gahagans, chief of police at the University of Arkansas Police Department – a 33-year veteran law enforcer who speaks like a veteran – told legislators that only law enforcers are trained to control for their own biases and to consider what’s behind the target. He said even with all of his training, in simulated scenarios he sometimes shoots the wrong person. Campus police can be on the scene within about two minutes. When they arrive, it makes their job harder when they have to decide which person with the gun is the bad guy.

You can’t go wrong taking a pro-gun stance in most places in Arkansas, and Collins knows that. The National Rifle Association supports the bill, and woe unto any Republican who gets on the NRA’s bad side. Still, he’s willingly spoken before town halls in Fayetteville and Conway where the crowd vocally opposed him. That’s not easy to do.

Collins’ bill pits conservative principles against each other – security and the personal freedom to carry a firearm versus the idea that decisions are best made locally by those most affected. He freely admits there’s a conflict in values, but, in the marbled halls of the State Capitol, there often is. You make choices.

Each legislator is making a choice on this bill. If it passes, college and university administrations will not have one. On the other hand, staff members with concealed carry permits will have more choice.

Whose choice matters most? It’s a representative democracy, so in this case it’s the legislators. Emotions can get high on this kind of thing, so let’s remember this: Whether or not you’re for the bill, we’re all against the killers.