Torts and Tortillas: The House Gives the Lobby the Gold Mine -- Guess Who Gets the Shaft?
In the wee hours Friday morning, the House approved HB 4, the omnibus tort-reform/medical malpractice bill, followed a sunrise later by HJR 3, the proposed constitutional amendment tort-reformers are demanding as a firewall against any court meddling with their statutory caps on noneconomic damages in civil lawsuits. I can't imagine what they're worried about -- the same group of deep-pocketed corporate interests have so loaded the Texas Supreme Court with business-friendly justices, it's inconceivable that the Supremes would cross them on this issue. But then, these guys didn't become what they are -- construction and chemical tycoons, HMO magnates, nursing-home honchos, pharmaceutical monopolists -- by settling for half a loaf, so their behavior in the lobby simply runs true to form.
Two flagrant episodes garnered headlines. Gary Scharrer reported in the El Paso Times that three El Paso County Democrats -- Joe Pickett, Norma Chavez, and Chente Quintanilla -- were told by Appropriations Chair Talmadge Heflin, R-Houston, that if they really wanted $5 million in the budget for a local medical school, it would behoove them to vote for HJR 3. (Such a direct exchange for a vote would be illegal, although proving it is something else again.) Freshman Quintanilla went public -- getting a couple of anonymous threats in response -- but neither Pickett nor Chavez would discuss the matter. Asked about the meeting, Heflin replied with inimitable aplomb, "To imply something improper went on is totally improper."
In the end, only Chavez joined 13 other Dems in voting for HJR 3. But with the 88 Republicans voting in lock step, it was those 14 Craddick-crats, paying back for their choice committee assignments, who put the resolution (requiring 100 votes) over the top. We certainly hope the game was worth the candle.
Meanwhile, Civil Practices Committee Chair Joe Nixon, R-Houston, and several of his GOP colleagues acknowledged gathering at the feet of corporate attorney Mike Hull, assisted by a cabal of lobbyists, to "prep" for the House debate. Asked by the Dallas Morning News about the apparent impropriety, Nixon said, "So whether you have a quorum is not the question. It's are the rules violated?"
As the learned philosopher says, "Them that has the gold, makes the rules."
Where there are carrots, sticks surely follow, and at a particularly nasty moment in the debate, Calendars Committee Chair Beverly Woolley, R-Houston, demanded the names of the handful of Democrats challenging Craddick on a ruling, implicitly threatening their own bills in her committee. "Who cares?" shouted Dallas Democrat Steve Wolens.
Wolens, Waco's Jim Dunnam, Galveston's Craig Eiland, Beaumont's Joe Deshotel, San Antonio's Carlos Uresti, Houston's Garnet Coleman, and other Dems who led the floor fight against HB 4 have probably long since resigned themselves to a largely empty-handed session. Austin's Dawnna Dukes told the Houston Chronicle that another Appropriations Committee member -- unnamed -- suggested to her that the survival of the Austin State Hospital could depend on her vote on tort reform. Dukes turned the offer down, she says, because she considers defeating HB 4 as important to her district as the hospital.
A surprising local newcomer to the ruckus was freshman Patrick Rose, D-Dripping Springs, who carried the amendment promising lower malpractice insurance rates upon passage of HJR 3 -- unless, of course, the insurance company explains to the state commissioner that it needs an exemption. Now there's an ironclad provision -- and apparently Rose wasn't even invited to the meetings down at Mike Hull's place. One hopes he got something more than a choice committee assignment in return for his credulity.
By contrast, there were no lapses of discipline on the Republican side. Fort Worth Democrat Lon Burnam half-seriously proposed an amendment to exempt terrorists from the protections of HB 4. That got shot down overwhelmingly with barely a word. Abortion-equipment manufacturers -- quite a bit lower on the hard-right totem pole than terrorists -- barely squeaked by (70-69 on a vote to table Alpine Democrat Pete Gallego's exemption amendment) over bitter protests from Pasadena Republican Robert Talton. Nixon insisted to Talton that exempting any manufacturer from HB 4's protections would set a bad legal precedent for the remainder of the bill. Indeed, the only substantive amendment that carried the day was a defiant rejection of the provision that would have limited fees to plaintiffs' lawyers -- that churlish restriction on the "free market" was apparently just too much to stomach for a House full of lawyers.
Otherwise there were no serious GOP defections. That's not surprising since many of them -- especially the freshman caucus -- owe their seats directly to the campaign contributions and support of the business lobby. As if the point needed driving home, every House member received a letter from Texas Association of Business Director Bill Hammond, declaring that every single record vote on both bills would be monitored for campaign accountability purposes by the T.A.B. Even a "present not voting" tally would be considered "a vote against tort reform," wrote Hammond. "Please follow the lead of the bill sponsor, Rep. Joe Nixon, on votes regarding amendments to the bills."
They heard, and they followed.
It remains to be seen whether the lobby will achieve similar uninterrupted success in the Senate. In the meantime, the breaking of the tort-reform logjam means that other legislation should begin to move again in the House, and members can begin to attend more closely to the budget crisis. That's not to say the Lege didn't get anything done last week. The Senate passed San Antonio Republican Jeff Wentworth's SB 204, which would mandate drivers turn on their headlights whenever they need to use their windshield wipers. And the House approved McAllen Democrat Kino Flores' HCR 16, which would designate "tortilla chips and salsa" as the official state snack of Texas.
It is worth noting, alas, that if HB 4 becomes law, the makers of headlights, windshield wipers, chips, and salsa can be reassured that however shoddy their products or indifferent their quality control, they'll escape virtually any liability for injuring the citizens of Texas.
Let the buyer beware.