Tobacco War: Inside the California Battles 9780520924680

Table of contents :
Contents
List of Figures and Tables
Preface
1. Introduction
2. Beginnings: The Nonsmokers' Rights Movement
3. Proposition 99 Emerges
4. Beating the Tobacco Industry at the Polls
5. Moving to the Legislature
6. Proposition 99's First Implementing Legislation
7. Implementing the Tobacco Control Program
8. The Tobacco Industry's Response
9. The Battle over Local Tobacco Control Ordinances
10. Continued Erosion f the Health Education Account: 1990-1994
11. Battles over Preemption
12. The End of Acquiescence
13. The Lawsuits
14. Doing It Differently
15. Political Interference in Program Management
16. Lessons Learned
Appendix A. Organizations, Programs, and People Involved in Tabacco Control in California
Appendix B. Important California Tabacco Control Events
References
About the Authors
Index

Citation preview

Tobacco War

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Tobacco War Inside the California Battles

Stanton A. Glantz Edith D. Balbach

UNIVERSITY OF CALIFORNIA PRESS Berkeley . Los Angeles . L o ~ d o ~ z

University of Californ~aPress Berkeley and Los Angeles, C,ilifornla

University of Californu Press, Ltd. London, England

0 zoo0 by The Regents of the Unlversir) of Cahfornia

Data Library of Congress C:atc~log~ng-i~l-PuI~l~cat~c~~l Glantz. Stanton A. Tobacco war:lnside the California battles 1 Stanron A. Glantz. Edirh D. Ralbach. p. cm. Includes bibliographical reference5 m d ~ n d e s . rssr 0-520-2228 j - 7 jalk. p a p e r ) - l s ~ ~0-1202 2 ~ 8 6 - (alk. j paper) r . Tobacco-Law and legislation-C:alitc)r~1~a. 2. Tobacco indusrrl--Politlc,11 spects-C,~lltornia. 1. Kalbach, Edith D., 19 5 3 11. Tltle. K F C ~ I ' . T ~~ 5 2000 8 j62.rq'h'o~)7q4-dcrr 99-037876

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And it ought to be reillembered that there is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order to things. Because the inventor has for enemies all those who have done well under the old conditions, and lukewarm defenders in those who may do well under the new. . . . Thus it happens that whenever those who are hostile have the opportunity to attack they do it as partisans, whilst the others defend lukewarmly. N. M~zchiuz~clli, 15 13 Life's hke a

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Vlrr~tevou own endmg. Keep believing, keep

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Contents

List of Figures and Tables Preface

1.

Introduction The Chmgmg Env~ronmerltof Tobacco Recurr~ngThemes Conclusion

2.

Beginnings: The Nonsmokers' Rights Movement The Berkeley Ordinance Proposition j The Tobacco Industry Joins the Battle The $43 Million Claim The Postmortem Proposition 10 Going Local The San Francisco Ordinance The Tobacco Industry's Counterattack Tobacco Control Advocates Mobilize The Proposition P Campaign Lessons from the Proposition P Campaign Conclusion

Xlll

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Contents

viii

3. Proposition 9 9 Emerges The Idea The Co,tl~t~on for a Healthy Californ~a The Legislatihe E f h t The CMX and the Tobacco Industrl The N,~pklnDeal Conclusion

4. Beating the Tobacco Industs\ at the Polls L o i k ~ n gIn &lone\ tor Prehentmn O r g m ~ z i n gthe CC1mpaign The Industr~Campaign Getting the hlediial Pro\ iders to Bu) In Collectmg the S~gn'ltures Launch~ngthe Eleitlon C a m p a ~ g ~ ~ Putting the Issue before the Voters The Chlh's Quiet K'lthdrawal The Fake Cop Fnsco Reflections on the Industn's Detedt Conilusion j

.

hloving to the Legislature The Tobacco Industry's Pricing Strategy Conflicting Vie~vsof Health Education A Hostile Legislative Environment California's Fiscal Problems Dmvn the Leg~slativePath The Coalition's Disintegration The Governor's Budget The Tobacco Ind~lstry'sLegislative Strategies Conclusion

6. Proposition 99's First Implementing Legislritioll The Voluntary Health Agencies' Legislation Other Significant Tobacco Education Legislation The Child Health and Disability Prevention Program Kegotiations and Agree~nents Project 90 The Rattle over the hledi,~Campaign The Research Account The Outcome Conclusion

Contents

7. Implementing the Tobacco Control Program Two Different Models Leadership at DHS The Media Campaign The Local Lead Agencies Encouraging Diversity The Schools: A D i i h e n t Approach Early Leadership Problems hlonitoring and Accountahility Formalizing Noncooperation between DHS and the Schools Conclusion

8. The Tobacco Industry's Response The Industr) m d the M e d ~ aCanlpa~gn "It's the Law" The Industry and the Schools

Conclusion 9. The Battle over Local Tobacco Control Ordinances Beverly Hills Lodi Sacramento The Escalating Fight over Local Ordinances Long Beach Placer County The Sacramento Battle over Measure G The Tobacco Industry's Plan: "California's Negative Environment" The Tobacco Industry and the California Public Records Act Conclusion 10.Continued

Eros~onof the Health Education Account: 1990-1994

Earl) Postures The CMA P o s ~ t ~ o n got er no^ W~lson'sBudget Cuts The T o b ~ i ~ Industrj'a o 5trategy The Final N e g o t ~ a t ~ o n s AB 99 Emerges The G o ~ e r n o rT r ~ e sto K111 the M e d ~ aCampalgn

Contents The First L ~ t ~ g a t ~ALXs o n : l.awsuit The 1992-1993 Budget Flght P o s l t ~ o n ~ nfor g 1994 The Governor Kills the Research Account Conclusmn I I.

Battles over Preemption SB 376: The First Threat of Preemption The V o l u ~ ~ t a Health ry Agencies Accept Preemption The Birth of AB I 3 The Tobacco Industry's Response: AB 996 The View from outside Sacramento AB 1 3 and AB 996 on the Assembly Floor On to the Senate The Philip Morris Plan The Philip Morris Initiative The Continuing Fight over AB 13 The Philip Morris Signature Drive The Legislature Passes AB I 3 AB 13 and Proposition 188 The Stealth Campaign The "No" Campaign The Wellness Foundation The Federal Communications Commission Conclusion

12.

The End of Acquiescence The Governor's 1994-199 j Budget The Creat~onof AB 8 I 6 Oblect~onsto CHDP The Hit L ~ s t The ANR-SAYNO L J W S U I ~ The Conference Cornm~ttceH e a r ~ n g The CMA I a5t-Mmute Efforts to Stop AB 8 I 6 The Floor F ~ g h t The Final B111 Co~icluslon

13. The Lawsuits Child Health and Disability Prei-ention Comprehensive Perinatal Outreach The Health Groups' Victory

Contents The Lawsu~t'sAftermath: SB 493 The SB 493 I ~ w s ~ ~ l t s Conclus~on

"1

1995

14. D o i n g It Ddfetentl) The h e e d for a Change The Deceinhel Xleetmg The C hlA The Go\ ernor's Budget Changes In the Legislature The C o a l ~ t ~ o Form ns The "Hd1 of Shame" Xd\ert~sement The Wellness Grant The CMA House of Deleg'xtes ,Meetlng The Phll~pM o r r ~ sMemo The Goxernor's Ma) Re\ lslon Re,lction to the Lo~ernor'sNew Budget on the Medla C ~ r n p x g n Attempted Restr~ct~ons The Rese'1rch Account The F m ~ Budget l Negotlatlo~l Engagmg the hledla The Lnd o f the D n e r s ~ o n s Concluswn I j.

Political Interference in Program M a n a g e m e n t Sq~iashingthe Media Campaign ''P\'icotjne Soundbite$" Implementing Pringle's Pro-Tobacco Policies Shutting Out the Public Health Community 'The TEROC Purge 'The Strengthened Advertisements 'The I 998 Hearings Trying to Control TEROC Delayed Implementation of the Smoke-free Workplace Law Pulling the Advertisements for Smoke-free Bars The California Tobacco Survey: TCS "Fires" John Pierce Conclusion

16. Lessons Learned The PIJ! ers The Kej s to Success: Ideas, Power, and Leadersh~p

Contents Ideas: Knowing What You Want Power: Turning Ideas into Action Leadership: Seizing Opportunities and Challenging the Status Q u o Conclusion

Xppend~xA. Organ~zatlons,I'rograms, dnd People Involved in Tobacco Control m California Appendix B. Important California Tobacco Control Events References About the Authors Index

List of Figures and Tables

FIGURES

Tohacco tax revenue allocat~onsas Proposlt~on99 e~olved Publ~csupport for Propos~t~on 99 through the elect1011campalgn Expend~turesto oppose Propos~tion99 Contnbut~onsrece~vedbv the C o a l ~ t ~ ofor n a Healthv C a l ~ f o r n ~toa support Proposit~on99 Tobacco tax revenue allocat~onsfor AB 7 j The National Cancer Instltute's model of the factors ~nfluencmgtobacco use The CDE r ~ s kand protective factors model of tobacco and s~tbstanceabuse Cal~fornm'sfirst anti-tobacco televls~on advert~sement,"Industry Spokesn~en" "F~rst,the Smoke. Now, the M~rrors,"Californ~a's first anti-tobacco newspaper advert~sement P h h p Morr~s'ssecret C a l ~ h r n ~Act~on a Plan network Beve~lvHdls restaurant revenues, I 98 6 -I 992 The tobacco ~ndustry'snetwork of law firms and smokers' r~ghtsgroups Tobacco Control Progran1 Impact of the Cal~forn~a on clgalette c o n s u m p o n through 1994

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14- Tobacco industry billboard promoting Proposition 188 as a "tough" anti-smoking measure 99 funding allocations for AB 816 Proposition IS. "Hall of Shame" newspaper advertisement I 6. 17. Newspaper advertisement designed to change the CMA's pro-tobacco position 18. Newspaper advertisement attacking Governor Pete Wilson for his pro-tobacco policies 19. Tobacco tax revenue allocations, 1987-1998 20. Effect of the media campaign on cigarette consumption 21. Effect of restrictions on the media campaign on cigarette consumption "Nicotine Soundbites" television advertisement 22. 23. "Are You Choking on Tobacco Industry Lies?" billboard 24. Original version of the television advertisement "Cattle" The toned-down version of "Cattle" 2s. 26. "Cattle" as finally produced

Illustration section follows page I 5 6 TABLES

Statements to Gauge Whether Respondent Would be More Likely or Less Likely to Support a Cigarette Tax Increase N o on Proposition I 88 Contributions 2. 3 . Yes on Proposition 188 Contributions I.

List of Figures

Preface

Tobacco is in the news on a daily basis. Politicians from President Clinton down to members of local city councils are actively fighting the tobacco industry. The once-invincible industry has settled lawsuits for hundreds of billions of dollars. Many states are initiating major efforts to do something meaningful about the half-million needless deaths that tobacco causes in America every year. It was not always this way. For over two decades a few activists did battle with tobacco interests in relative obscurity, usually with little support from the organizations and politicians who should have been helping them. This is a book about the last quarter-century of tobacco politics in California. In the early 1970s a small band of activists were taken with the idea that people should not have to breathe secondhand tobacco smoke-an idea that was nothing short of bizarre at the time. Their efforts spawned hundreds of local tobacco control ordinances and, eventually, Proposition 99, the largest tobacco control program in the world. At every step of the way, these advocates had to confront the tobacco industry and its allies across the political spectrum. Tobacco War is their story. The book draws heavily on work done by students and research fellows who have worked with Stanton Glantz to study tobacco politics and policy in California over the years: Michael Begap, Bruce Samuels, Mike Traynor, Heather Macdonald, Stella Aguinaga-Bialous, and Fred Mo-

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nardi. We thank these individuals and our other colleagues whose work has made this book possible." We are particularly grateful to Attorney General Hubert Humphrey I11 of Minnesota. His dogged determination to get the truth out about the tobacco industry in Minnesota's case to recover smoking-induced costs and otherwise rein in the tobacco industry forced the release of millions of secret tobacco industry documents, including several important ones about California that we discuss in this book. Over time, the research that formed the basis of this book has been supported by several agencies: the University of California Tobacco Related Disease Research Program (Grant IRTSZO),the National Cancer Institute (Grant CA-61o21), the American Cancer Society, and Edith and Henry Everett. We thank these agencies and individuals for making this work possible, particularly when the tobacco industry was making such support as difficult as possible. We also thank Annemarie Charlesworth for nailing down details and helping with final manuscript preparation and Lena Libatique for typing the index. One of the authors of this book, Professor Stanton Glantz, participated in many of the events described here. While Glantz appears as a player, it is important to emphasize that this is not his personal memoir. Indeed, some of the key events in this story happened while Glantz was writing a statistics textbook on an out-of-state sabbatical. The amazing thing about the California story is how many tobacco battles have taken place in the state over the past quarter-century. Indeed, we have omitted many important events to keep the book manageable and to focus on the California Tobacco Control Program. We do not discuss the liberation of the film Death in the West, which Philip Morris suppressed in England; or the development of the California En"Portions of this book draw heavily on the following research: B. Samuels and S. Glantz, The politics of local tobacco control, JAMA I 991 ;266: 21 1 0 - 2 1 1 7 (copyright American Medical Association, 1991); M. Traynor, M. Begay, and S. Glantz, New tobacco industry strategy to prevent local tobacco control, JAMA 1993; 270:479-486 (copyright American Medical Association, 1993); H. Macdonald and S. Glantz, Political realities of statewide smoking legislation: The passage of California's Assembly Bill AB 13, Tobacco Control 1994;4: 1081-1085 (copyright BMJ Publishing Group); M. Traynor and S. Glantz, California's tobacco tax initiative: The development and passage of Proposition 99, JHPPL 1996;21: 543-585; S . Glantz, J. Slade, L. Bero, P. Hanauer, D. Barnes, The cigarette papers (Berkeley: University of California Press, 1996); H. Macdonald, S. Aguinaga, and S. Glantz, The defeat of Philip Morris' "California Uniform Tobacco Control Act," Am J Pub Health 1997; 87: 1989-1996 (copyright American Public Health Association, 1997); E. Balbach and S. Glantz, Tobacco control advocates must demand high-quality media campaigns, Tobacco Control (1998; 7:397-408; copyright BMJ Publishing Group). We thank the copyright holders for permission to use this material.

Preface

xvii

vironmental Protection Agency report on secondhand smoke; or the fight by Glantz and his colleagues at the University of California to make the Brown and Williamson documents public; or the efforts by congressional Republicans to force the National Cancer Institute to cancel Glantz's research funding; or the lawsuits the tobacco industry filed against the university to try to stop Glantz's work; or the lawsuit that California filed against the tobacco industry; or the passage of Proposition 10 in 1998, which raised tobacco taxes by fifty cents a pack to fund child development programs. These stories will have to wait for the sequel. California's story holds important insights for people everywhere who want to develop and implement-and to defend-meaningful tobacco control programs.

Stanton A. Glantz San Francisco, California Edith D. Balbach Medford, Massachusetts

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CHAPTER I

Introduction

New Year's Day 1998 was crisp and clear along the coast just north of San Francisco, a fine day for a hike. Stanton Glantz, a professor at the University of California, San Francisco, and longtime tobacco control advocate, joined a group of friends to hike from high on Mt. Tamalpais down to the ocean. At the end of the trail, the hikers would meet other friends at a bar in Stinson Beach for a drink and lunch. As they approached the bar, Glantz wondered what would happen there. On January I , 1998, after all, every bar in California was to become smoke free. Glantz had actually opposed the state law making bars smoke free because he doubted that the state legislature would stand up to the tobacco industry and pass a strong law. He also believed that such matters were best left to local communities. The tobacco industry had already mounted a major campaign to encourage people to ignore the law. By then, however, most people thought Glantz was responsible for the law. He expected to walk into another smoky bar and hear comments from his friends that he had gone too far. But he was pleasantly surprised. A couple of people stood outside the bar smoking cigarettes, but the air inside was smoke free. Bars, the last bastion of smoking, were smoke free. California had indeed come a long way since 1978, when attorneys Peter Hanauer and Paul Loveday had recruited Glantz for an ill-fated effort to pass a state law requiring nonsmoking sections in restaurants. They did not even dare think about bars.

Introduction

T H E C H A N G I N G E N V I R O N M E N T O F TOBACCO The landscape surrounding tobacco was not changing merely in California. By New Year's Day 1998, tobacco was a highly visible issue in American politics. President Bill Clinton allowed his Food and Drug Administration to assert jurisdiction over tobacco products as drug delivery devices. Forty-one states had sued the tobacco industry for defrauding the public out of billions of dollars that taxpayers had spent to treat sick smokers; the states would soon force the tobacco industry to pay $200 billion to reimburse them for part of those costs.' Thousands of individuals sued the industry and some won. The industry was being forced to accept controls-albeit limited-on its advertising practices. Millions of pages of previously secret tobacco industry documents were made public, first in print,'-- then on the Internet and in a depository created from the documents that Attorney General Hubert Humphrey I11 of Minnesota forced the tobacco industry to make public. These documents showed that the tobacco industry had known for decades that nicotine is addictive and that smoking causes a wide variety of diseases. They also demonstrated how the tobacco industry used its considerable public relations, legal, and political muscle to hide this information from the public and the courts. Later in 1998 Congress had a rancorous debate over whether to enact national tobacco control legislation that put some restrictions on the tobacco industry in exchange for giving it legal immunity. In the end, Congress strengthened public health provisions of the proposed legislation to the point that the tobacco industry and its political allies killed it. This burst of activity reflected the groundwork that had been laid over the previous two decades by tobacco control activists who had been working all over the United States to change how people viewed the tobacco industry and its behavior. Beginning in the 198os, California activists, led by Hanauer and Loveday, created hundreds of city and county ordinances to protect nonsmokers from secondhand smoke and otherwise restrict the tobacco industry by working through their city and county officials. These local activists created strong public support for tobacco control policies. Even so, the tobacco industry continued to dominate the California Legislature, where tobacco control policies had scant support. BLI~ in 1988 activists from the environmental movement and the American Lung Association and American Cancer Society reacted to this legislative impasse by creating the largest and most innovative program

Introduction

3

in the world through the initiative process, by which voters enact a law by popular vote. California voters enacted an initiative known as Proposition 99, which increased the tobacco tax bp twenty-five cents a pack and devoted 2 0 percent of the money raised to fund a tobacco control program. Virtually overnight, California's investment in tobacco control went from almost nothing to over $100 million a year in schools, cornmunities, and counties and at the state level. In addition, nearly $20 million a year was available to California researchers to conduct tobaccorelated research. These programs dwarfed anything that any other state or the federal government had ever done on tobacco. Far from running a traditional "smoking will kill you" campaign, the California effort viewed tobacco as a social and political problem and went after the tobacco industry directly and aggressively. The network of local tobacco control advocates that Proposition qq created lit the afterburners on the nonsmokers' rights movement. Communities started passing clean indoor air and other tobacco control ordinances so fast that it was hard to keep track of them all. The c u l t ~ ~ around re tobacco was changing. The initial results of the California campaign were nothing short of amazing: it tripled the rate of decline in tobacco ~ ~ s e . W n fortunately for the public health, the tobacco industry appreciated that this campaign was costing it billions of dollars in lost sales and mobilized to divert the money from tobacco control and to constrain the program to ineffective strategies. Nevertheless, the California experience shows that it is possible to rapidly reduce tobacco consumption if the political ~villis there to do it. The tobacco industry was not alone in its efforts to divert money from tobacco control programs. Organized medicine and other constituencies that wanted more money spent on medical services for the poor spearheaded the lobbying effort to redirect money into medical services. Politicians in both parties were happy to do the industry's bidding in exchange for campaign contributions or because of a common ideological position.'-'l In 1994, after several years of rapid reductions in tobacco use, the industry brought this progress to a halt." For public health advocates, success in political arenas required that they set aside the conciliatory tactics they had relied on in the past and learn to be more confrontational in dealing directly with the tobacco industry. However, they were less willing to confront the industry's surrogates, especially organized medicine or powerful politicians. While the story of tobacco control in California reflects the individuals and organizations who were involved, the story is relevant every-

where. The tobacco i n c i u s t r ~ efforts '~ to ~nfluencestate and local programs are controlled nationall), and the patterns m California have rer hedth ad\ocxes trx to clem the alr or control appeared u h e r e ~ e publ~c the tobacco ~ n d u s t ~As r . ,I new century begins, more m d more states are implementmg large-scale tobacco control progrmls, often through dedicated tobacco tdxes or 1' s parts of settlements of lawsu~tsw t h the tobacco ~ n d u s t r hL~ssachusetts ~. was the first state to follow Cal~fornia,when next in 1994, folLoters there passed Quest~onI in 1992; Arizona ~~7'1s lowed b ~Oregon . in 1996." ' O t h e ~states, including Wisconsm, M I C ~ I gan, and Mame, created tobacco control programs through the legslatile process, and Flor~da,Mmnesota, Texas, and h l i s s ~ s s ~ p among p~, others, did so through legal settlements w t h the tobacco ~ndustry. RECURRING THEMES The story of the battle over tobacco control in California has several recurring universal themes. First, although health promotion and medical care have a logical connection, there has al\vays been a tension between them in the allocation of tax dollars. In the battles over the Proposition 99 revenues, the existence of an a priori agreement between those involved in health promotion and those involved in medical care did little to curtail these battles. Moreover, the financial and political interests oi organized medicine often had more in common with the tobacco industry than the public health g r o i ~ p s , ~who ~ . ~ had " been marginal players in California politics before Proposition 99 passed. Despite the fact that these groups successfully defeated the tobacco industry in a major electoral contest to pass Proposition 99, it was hard for them to understand their power and wield it after the election. Second, it is easiest to make policy in areas where there is a clear consensus on how to achieve the program's goals. Before Proposition 99, no one had ever run a large-scale tobacco control program and no one knew exactly how to do it. In contrast, everyone knekv how to spend money on direct medical services. This difference, combined with the lack of precedent for mounting a prevention program of the magnitude of the one created by Proposition 99, complicated the health advocates' task. The absence of a proven approach to reduce tobacco use could have been mitigated with a long time frame to develop and implement the program and a careful evaluation process. Politicians, however, who tend to rely

Introduction

5

on short schedules and temporary settlements, did not allow enough time for such a process, even though Proposition 99's tobacco control program was breaking new ground. This situation led anti-tobacco advocates to make early compromises that would come back to haunt them. Third, programs tend to remain in place once established. Temporary agreements or one-time diversions of funds, as happened when tobacco control proponents agreed to allow some anti-tobacco education money to be used for medical services, become precedents in subsequent budget years because operating programs build their own constituencies. Fourth, and finally, informed and activated public opinion is a powerful weapon in health policy generally and on tobacco policy specifically. When tobacco policy is left to the inside game played in back rooms, the outcome will favor the existing power structure. The tobacco industry is a tough, experienced inside player who has benefited from the existing power structure. In contrast, the public health groups' power is amplified in public arenas, where tobacco industry's power is sharply curtailed. CONCLUSION The California experience shows that it is possible to dramatically change how people think about tobacco and the tobacco industry and rapidly reduce tobacco consumption. Based on the initial results of the program, the state was on its way to reducing tobacco consumption by 7 j percent in just ten y e a r ~ . ~ O The - ~ ' California story shows that it is possible to run such programs successfully as long as the public health community exerts power effectively. It also shows that it is possible for the tobacco industry and its political allies to weaken or destroy these programs when the public health community is timid. The tobacco industry, faced with losing billions of dollars in sales, is highly motivated and aggressive. The controlling factor in the outcome is whether the public health community is willing to directly confront this reality and devote the organizational resources-both financial and political-to beating the tobacco industry. Victory is possible but not easy, and it requires constant, determined vigilance. While Proposition 9 9 passed in 1988, it had its origins over a decade earlier, i n the emergence of the nonsmokers' rights movement. In contrast to the large voluntary health organizations, the grassroots advocates of nonsmokers' rights saw political and policy interventions as the key to doing sonlething about tobacco. Rather than convincing one person at

6

Introduction

a time to stop smoking, they fought to enact laws requiring smoke-free workplaces, public places, and restaurants.'~'Yheir efforts brought about systemic, environmental changes that had an impact on how citizens viewed the tobacco industry and their rights as nonsmokers. They made smoke-free bars not only possible but reasonable. The California story begins with them.

CHAPTER 2

Beginnings: The Nonsmokers' Rights Movement

In the early 1970s a few people had the radical idea that nonsmokers should not have to breathe secondhand tobacco smoke. At that time it was considered impolite to ask people not to smoke. Smoking was not only acceptable; it was the norm. The executive director of the California division of the American Lung Association was a chain-smoker, and the American Heart Association distributed ashtrays and packs of cigarettes at its hoard meetings. Offering someone a cigarette was a way to open social discourse. Even the most ardent nonsnlokers' rights advocates were only seeking nonsmoking sections in public places. No one dared even think of a smoke-free society. Finding little support from the mainstrearn health organizations like the American Cancer Society, American Heart Association, and American Lung Association, nonsmokers' rights activists formed a loose network of grassroots organizations with various names, the most common being Group Against Smoking Pollution or GASP. The nonsmokers' rights activists viewed smoking and the tobacco industry as a social, environmental, and political problem; in contrast, the medical establishment-including most of the voluntary health organizations-viewed smoking as a medical problem in which individual patients (smokers) \\.ere to be treated (by telling them to stop smoking). The establishment's approach did not mesh easily with the tobacco control advocates' policyoriented approach.

Beginnings While the medical and health establishments did not take the nonsmokers' rights movement seriously, the tobacco industry did. The industrv recogn~zedthe Issue of secondhand smoke as a major threat t o the social support network that ~t had spent decades building around tobacco use. As earl\ as 1973, the tobacco ~ n d u s t nclearly ~detmfiedthe emergmg nonsmokers' rights m m e m e n t as a problem: "More m d more, smoking is being pictured as socially unacceptable. The goal seems [to be] the involvement of others-non-smokers, children, etc.-in addition t o health and government organizations. The main thrust of these zealots seems t o be that 'smoking is n o t a personal r ~ g h because t ~t hurts others; that srnokmg hat ms non-srnokmg adults, chddlen, and e \ e n the ,et unborn.' " B\ 1978, the industs\ recognized the full dimens~onsof the thleat represented LW the nonsmokers' rights mobement. X research report prep x e d b) the Ropes O r g a n ~ z a t i o nfor the Tobacco Institute (the tobacco ~ndustr!'s p o l ~ t ~ cc ~~ rl iconcluded: ~~i

'

The original Surgeon General's report, followed by this first "hazard" warning on cigarette packages, the subsequent "danger" warning on cigarette packages, the removal of cigarette advertising from television and the inclusion of the "danger" warning in cigarette advertising, were a11 "blows" of sorts for the tobacco industry. They were, horverer, blows that the cigarette industry could successfully weather because they were all directed against the smoker himself. The anti-smoking forces' latest tack, however-on the passive smoking issue-is another matter. Whizt the smoker does to hinzself may be his huslness, hut tohut the svmker does t o the non-smoker is quite LZ d i f i r r n t matter. . . . Nearly six out of ten believe that smoking is hazardous to the nonsmokers' health, up sharply over the last four years. More than two-thirds of nonsmokers helieve it; nearly half of all smokers believe it. This w e see '7s the niost dungemus development to the viuhilzty of the tobucco industry that has yet v c c ~ r ~ e[emphasis d.~ added] The nonsmokers' rights movement was growing and having some significant legislative successes. In 1973 the Arizona Legislature ended smoking in elevators, libraries, theaters, museums, concert halls, a n d buses. In 1 9 7j Minnesota mandated separate smoking areas in restaurants, meeting rooms, and workplaces, in addition t o the types of restrictions put in place in Arizona.' The Minnesota law was the last time that clean indoor air legislation \vould pass without vigorous opposition from the tobacco industry.

Beginnings

T H E BERIWLEY O R D I N A N C E

In the spring of 1973, lawyer and legal editor Peter Hanauer went to a meeting of Berkeley GASP after his wife salv a meeting notice on a community hulletin board. Hanauer recalled, "It was a fairly ineffective group at the time. I mean, we were busy grinding out leaflets and trying to get a few new members here and t h e r e . " V h i l e there were thoughts about some greater level of act~vism-two of the founders, Irene and Dave Peterson, had created a foundat~onto prov~delegal representation to people who were affected by secondhand smoke In the workplacenot much happened untd they were joined by Paul Loveda), a former professional basketball player turned lawyer. Loveday brought a clear kislon and strong leadership to the group and soon became president of GASP. The aggressive Loveday and studious Hanauer, who was elected treasurer, were the "odd couple" that hecame the backbone of the nonsmokers' rights movement in Cal~fornia. Encouraged by the hlmnesota Clean Indoor Air Act, GASP, led by Lovedak, Hanauer, and T m Moder, a chemist who turned h ~ home s Into the group's headquarters,' decided to persuade the Berkeley C ~ t yCouncil to pass an ordinance restricting smoking in public indoor spaces and requiring separate sections for smokers and nonsmokers in restaurants. Although they wanted a statewide law, they knew there was little chance of success without some preliminary steps. Passing a local law would show that nonsmoking sections were possible and would give them some experience in writing legislation. The proposed ordinance was introduced in the Berkeley City Council in April 1976. After a year-long campaign, which included numerous city council meetings as well as meetings with restauranteurs and local merchants, the Berkeley Clt) Counc~lpassed the ord~nanceby a 9-0vote In A p r ~ l1977. The Berkeley kictory ~llustratedan important lesson for Hanauer: "At the local level, as we d~scoveredover the years, we could beat the tobacco industry, because their lobbyists could not defeat grassroots orgmizat~onswho had the ears of thelr neighbors and friends who were on the city c o u i ~ i l . " ~ PROPOSITION 5 T h e ~ Berkele) r success encouraged Loveday and Hanauer to try to get the C'allforn~aLeg~slatureto pass a state clean mdoor a ~ r The tob'~cco

industry, having learned its lesson in Minnesota, vigorously and successfully blocked GASP'S attempt to replicate the Minnesota Clean 111door Air Act in California. The bill did not even get out of committee. After failing in the legislature, Loveday and Hanauer decided to take the issue directly to the voters through California's initiative process. The initiative, known as the California Clean Indoor Air Act, made snmking illegal in all public places unless they were specifically-exempted. It required that partitions be erected in offices and public places, including restaurants, to separate smokers and nonsmokers. Violators were to be fined fifty dollars. In an effort to write an enforceable and reaso~lahlelaw, Loveday and Hmauer included some exemptions, such as tobacco shops. Since the drug laws were not being enforced at rock concerts, they exempted rock concerts. This exemption, while reasonable from an intellectual point of view, was to become a major issue in the campaign. The idea of protecting nonsmokers from secondhand smoke was popular; polls (including those comn~issionedby the tobacco industry) showed support by a 3-1 margin. Putting a proposed law before California voters as a statutory initiative requires proponents to collect valid signatures of j percent of the number who voted in the previous gubernatorial election,' which meant collecting ~ c c , c c csignatures in 1977. While most initiative campaigns rely on paid signature gatherers, the Proposition 5 advocates did not have that luxury because they had very little money. Modes became the paid campaign coordinator, working out of his house with his own printing press. By using campaign workers who were almost all volunteers, advocates qualified the initiative at a cost of only $ jc,occ, the least amount .~ of money per signature ever spent to qualify a statewide i n i t i a t i ~ eThe initiative appeared on the November 1978 ballot as Proposition j. Loveday and Hanauer formed a new organization to run the campaign, Californians for Clean Indoor Air. While nominally a coalition of many health and environmental groups, GASP provided the backbone of support. Loveday and Hanauer approached the voluntary health agencies for support, expecting them to be enthusiastic, but came away disappointed. Only the American Cancer Society (ACS) expressed interest in the initiative, and that interest was tempered. According to Hanauer, We did get the ear of Ray Weisberg, who was then the chair of the Public Affairs Committee of the California Cancer Society. He agreed with us . . . that the way to really get smoking reduced was to make it socially unacceptable. This was our whole rationale. We not only felt that eliminating srnoking in

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public places and the workplace was good for nonsmokers but that it also reduced smoking in the long run. Of course, the tobacco industry agreed with us. VC7ewished some of the health agencies had agreed wlth us as much as the industry did. It took a long time. The Cancer Society came around mainly because of Ray Weisberg, but the other agencies at that time were very slow in responding and gave sort of token support.-'

The voluntary health agencies, particularly the ACS in California, supported the campaign with some money but were not heavily involved in collecting signatures or conducting the campaign. Weisberg also convinced the California Medical Association (CMA) and the American Lung Association (ALA) to support the initiative, which made Proposition j appear more mainstream. The CMA put its name on the letterhead but, according to Hanauer, "wouldn't lift a finger during the whole cam~ a i g n . "The ~ CMA sent the "Yes on Prop 5" campaign a seven-dollar invoice for some photocopying it had done for the campaign, which Hanauer refused to pay.-' In addition to Weisberg, the other important recruit to the campaign was Stanton Glantz, an assistant professor of medicine at the University of California at San Francisco. Glantz, a Ph.D. in applied mechanics and engineering economics, conducted research on the function of the heart and was an expert in statistics. Glantz, who combined a background in political activism with his scientific training, would serve as the c a n paign's technical expert. Unlike some scientists, he was willing to do public battle with the tobacco industry.

T H E T O B A C C O INDUSTRY J O I N S T H E BATTLE The tobacco industry mobilized against Proposition 5 before it was even written. According to Ernest Pepples, vice president for law at Brown and Williarnson Tobacco, the industry began planning its strategy before the terms of Proposition j were even known or concepts to combat it had been developed. Because of the early start a Clalifornia Action Plan was presented to the chief executive officers [of the tobacco companies] within three weeks of the time the sponsors filed their "Clean Indoor Air Act" initiative and its provisions became known for the first time. That Action Plan became the basic blue print of the campaign concepts, strategy, organization and tactics for the enure campaigr to defeat Proposition j. The Tobacco Institute made Jack Kelly a full time employee-he had been the paid executive of California's tobacco distributors group-to devote all his efforts to the ~arnpaign.~

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The framing of the Proposition 5 debate was important to the tobacco industry, which wanted to avoid health issues and nonsmokers' rights to clean air. The industry's preferred framing was that voters should fight off government intrusion. Jim Stockdale of Philip Morris commented on the rights question: What troubles me is the danger of having the issue defined at the onset the way our opponents would like it to be defined, namely smoker vs. non-smoker. Our strategy should put us on the offensive. . . . Will the anti-smoking groups attempt to polarize the electorate into two groups-smokers vs. non-smokers -or will they attempt to broaden their appeal by cooping the individual rights argument (i.e., a non-smoker has an inalienable right to breathe "clean air")? We should have strategies for either situation. We have to clarify the thr~lstthe campaign should take. The message should be to vote "no" to turther governmental encroachment on individual rights.-

Using this thrust, the industry hoped to broaden its base of support to include groups such as Libertarians. The call to fight off government intrusion would persist for the next twenty years in the industry's battles over clean indoor air policies. Ed Grefe, vice president for public affairs at Philip Morris, became actively involved in the Proposition j campaign and specifically blocked any mention of the health issue. According to Grefe, "the biggest argument I had internally throughout the entire campaign was to convince the other companies to keep their mouths shut about the health issue. They would say, 'Shouldn't we put out a little brochure?' I said, 'Forget it, we want no goddamn brochure on the health question. We can't win on the health question. We'll lose.' Legally, they could fight and win on the health question, they'd been doing it for years, but politically they couldn't. It's no use bucking public opinion."" The industry, recognizing from its own polling that it had virtually no public credibility, decided to act through a nominally independent campaign committee known as Californians for Common Sense (CCS). Even t h o ~ ~ gCCS h was created, financed, and controlled by the tobacco companies through a closely coordinated effort, CCS attempted to minimize and even hide its industry connections. The industry wanted the public to believe that CCS was a group of concerned California citizens. As a result, several important guiding principles were established to keep the profile of the tobacco industry as low as possible. As Ernest Pepples of Brown and Williamson wrote in a secret Campaign Report, All campaign functions would be operated through the citizens committee, Californians for Common Sense.

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Tobacco company visibility would be confined to financial contributions to CCS. There would be no attempt to disclaim or discount the amount of tobacco contributions. Tobacco company personnel would not make campaign appearances, occupy campaign positions or make public statements relative to the campaign. N o campaign events, programs or advertising would be directed to college campuses, specifically, or to youth in generaLh

Although Pepples stated that there would be "no attempt to disclaim or discount the amount of tobacco contributions," the tobacco industry kept a low profile during the campaign, and campaign spokesmen denied the industry's financial role until legally required campaign disclosure statements proved the industry was financing the campaign. O n one occasion, CCS issued a press release that misstated tobacco industry contributions to the campaign by leaving out $3oo,ooo of in-kind campaign contributions. As in all similar campaigns everywhere since, more than 99 percent of the money came from the tobacco industry. In spite of the prominent role given to CCS, however, the tobacco companies maintained tight control of CCS activities from behind the scenes. As Pepples noted in his Campaign Report, X group of

j tobacco company representatives consisting of Jim Dowdell who was succeeded by Charles Tucker from RJR, Ed Grefe from Philip Morris, Xrthur Stevens from Lorillard, Joe Greer from Liggett cYr Myers and Ernest Pepples from B&W kept in constant contact with the operation of CCS. Visits were made at least once a month by the group to the CCS headquarters in both San Francisco and Los Angeles. Also frequent telephone conferences were held between Woodward & McDowell [the firm hired to manage the campaign] and the five company people. During the final month of the campaign, almost daily conferences were held by telephone including Woodward & McDowell and Jack Kelly together with Lance Tarrance [the tobacco industry's pollster] in Houston conferring with the five company representativesh

T h ~ tight s control by the tobacco companies stood in sharp contrast with the industry's public position during the campaign: that Proposition j was a local California matter and that Californians for Common Sense was a campaign organization established by local citizens as a freestanding, autonomous organization. The industry's actual control also contrasted sharply with that of the national voluntary health organzations, which treated Proposition j as a local California matter and stayed out. By the end of the campaign, Proposition 5's proponents had raised

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and spent $633,46j, an amount dwarfed by the tobacco companies' $6.4 million-divided among the companies in proportion to their shares of the cigarette market. The justification for this level of spending was simple in terms of protecting industry sales. Pepples did the math: l f it is assumed that the passage of Proposition 5 would have caused a decline in volume of just one cigarette per California smoker per day, the chart attached to this letter shows the industry would have suffered an after tax loss equal t o $5.9 million in the first year. O n that basis, it can be said that the industry will recover its "investment" [i.e., the $6.4 million spent to defeat Proposition 51 over a period of one year. If it is assumed that the passage of Proposition 5 would have caused a decline of z cigarettes per day per smoker, then the industry can expect to recover the $ j . g million expense in only 6 months. California represents about 10% of the population of the United States or 20 million people. California is regarded as a trendsetter and theoretically if Proposition J had passed it would haue had an impact on sales elsewhere in the United state^.^ [emphasis added]

The spending by the tobacco industry exceeded the combined expenditures of both candidates for governor and for many years remained a record for election spending in California.

THE $43 MILLION CLAIM The alleged high cost of implementing the initiative was one of the tobacco industry's key themes in its campaign against Proposition j . In the previous election of June 1978, California voters had passed Proposition 13, which slashed property taxes and started the "taxpayers' revolt," and the issue of government waste was high on the public agenda. For months the tobacco industry's campaign hammered the claim that Proposition j would cost taxpayers $43 million to implement. Proposition j proponents challenged this claim in letters to television and radio stations in early September, shortly after the tobacco industry began its massive advertising campaign against the initiative, asserting that the advertisements were "false and misleading." (Proponents argued that Proposition j would actually save money by reducing smoking and the associated costs.) The stations ignored this challenge. A couple of weeks later, someone leaked three important documents to the Yes on 5 campaign: a planning poll that Houston-based pollster V. Lance Tarrance and Associates had conducted for CCS in December 1977 and two reports presenting cost estimates for implementing Proposition j that provided the basis for the industry's advertising claims. These docu-

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ments revealed yet another instance of the industry saying whatever it thought necessary t o sway the public. The Tarrance poll in fact showed strong support for the idea of clean indoor air among all segments of California voters a n d tested the arguments that the industry \\,as considering tor its campaign t o defeat the initiative. N o n e of these a r g ~ i ments moved the voters s a w one: cost t o taxpayers. The pollster asked people three questions about h o w they \vould r m e , depending o n what the initiative would cost taxpayers t o iniplenient.'" The initiative gathered a landslide 71.2 percent "yes" vote if it cost $ o . - ~million t o implement. The margin of victory dropped substantially if the initiati1.e cost taxpayers $ 5 million t o imple~nent;only jz.6 percent said they would vote "yes." If the initiative cost $20 million t o implement, the "yes" vote fell t o 41.4 percent and the industry \\.on. The tohacco industry then hired the consulting firm of Economic Kesearch Associates (ERA), ~ v h i c hproduced a report claiming Proposition j w o ~ i l dcost taxpayers $19.7 million t o post No Smoking signs in state huildings." EKA produced a second report stating that entorcement w o ~ l l dcost another $21 million, bringing the total alleged cost t o $4; million, twice the a m o u n t that the tohacco industr!. needed t o p ~ ~ s h voters toward a "no" vote." To obtain the $ I 9.7 million cost estimate, ERA assumed that No Smoking signs \vould cost $ 2 7 . jo each, even though hardware stores lvel-e selling them for less tllan $1.00. ERA made a n even more fundumental error: the!, got the arithmetic wrong. In estimating the number of No Smoking signs that ~ v o u l dhe needed, ERA calculated the total square footage of office space in state huildings and then multiplied the s c l ~ l x croot of the office area by 4 t o obtain a n estimate of the number of linear feet of office walls in state buildings (it was assumed that signs w o i ~ l dhe placed a t regular intervals). But the square root of 207.2 million square feet was miscalculated as 14.4 nzillio7z feet whereas it should have been I 3.4 thomnnd feet. Thus, even using the industry's o w n metllocls and $ 2 7 . jo signs, the report overestimated the cost of signs hy a factor of looo. Simply correcting the arithmetic error brought the industry's cost estimate down t o $19,700. Loveday and Glantz thought they had caught the industry in a major scandal. They had the poll showing that a high cost claim was necessary t o defe'it the initiative and they had a flawed report that seemed designed t o justify the number that the tohacco industry needed. On September, 19,1977, they held press conferences in Los Angeles and Sacranlento exposing the poll and the arithmetic error. Unfortunately, few members

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of the press understood what a square root was. According to Loveday, "What was really funny; I mean you look back on it and you sa); 'God this was so aggravating, so frustrating.' The press didn't understand the math. Stan would try to explain at a press conference what had happened and that the press just couldn't . . . they didn't know a square root from a cigarette. . . . You can discover something like that but getting to the public with that infornlation through the press when the tobacco industry is spending $6 million. . . . It was a pretty uphill battle." li Even when the initiative's supporters thought they had a winning issue, the industry quickly recovered. On the way home from their press conference announcing the mistake, Loveday and Glantz heard a radio advertisement ridiculing the lower number. As Grefe observed, "A11 that square root stuff? The error is irrelevant. The whole strategy is to put the other person on the defensive. If I say, 'It'll cost a billion dollars' and ~ O L say, I 'No, it'll only cost a million,' you've lost, you're dead."" Even though the industry was successful in framing the election fight as a cost issue at this point, it continued to worry that the health issue could appear. According to Pepples, Lance Tarrance's organization kept a close watch on the effect of the pro-5 advertising. If other people's smoke became a dominant issue in the closing days of the campaign, Lve had an alternate ad carnpaign which was prepared and kept in the can in case it \vas needed. It had been tested in Madison, \%Sconsin. It was based on work done b!. BBD&O [Batten, Barton, Durstine, and Osborne, an advertising firm with longstanding tohacco accounts]. The tesring at Madison showed no perceptible improvement in attitudec ahout "other people's smoke." h u t it seemed to he bombproof."

The industry never needed these advertisements because Proposition j's supporters never succeeded in getting the campaign focused on health issues. In the end, the tohacco industry defeated Proposition 5 , with 54 percent voting "no."

THE POSTMORTEM The extent and intensity of the industry's efforts surprised Proposition j's proponents. As Hanauer explained, I think we weren't prepared psychologically or politically for what hit us. I mean we were 3 bit naive in those days. We were just a bunch of citizens trying to get clear indoor air and who could be against that? If people want to smoke, they can wait and go outside. \?C1hat's the hig deal? We heard the first tobacco industry ads on the radio against us, months and months in advance.

The!, started advertising even before we qualified for the ballot. . . . They wanted to get the puhlic questioning what we were doing as early ,IS possible. . . . We laughed at the ads . . . we were naive in terms of just how sophisticated the industry really was and h o w they could turn the pnhlic against what the public had thought was a good idea.4 Proposition 5 did have some vulnerabilities that made it open t o attack by the industry. In particular, the specific exceptions t o the requirement that public places provide nonsnloking sections were ridiculed by the industry. For example, rock concerts, professional bo~vlinga n d wrestling rnatches, pool halls, and gaming halls were exempted. T h e tobacco industry latched o n t o this distinction in a biting series of radio advertisements ridiculing the initiative. Even in defeat Loveday believed that something had been accomplished. H e observed, "Prior t o Proposition 5, people w h o were concerned about nonsmokers' rights were looked on as real kooks; maybe you'd read something about it o n the q r n d page. That's not true anymore; it's a very respectable issue. We have n o w gotten the point that people's cigarette smoke is harmful t o the nonsmokers. And 1 think we've laid the groundwork where we can have something like this passed in Indeed, since strategists the future in California and other places." for the tobacco industry knew that people did not approve of secondhand smoke, the campaign against Proposition j had t o acknowledge that secondhand smoke was bad while clainling that Proposition 5 was lvorse. Pepples aclznowledged the industry's vulnerability in California: "After election surveys show that 71 % of the electorate say they w o ~ ~ l d support 'some regulation' of smoking in public places.""~~ the process of defeating Proposition j , however, the tobacco industry ran the largest public awareness campaign o n secondhand smoke the world had ever seen. While the tobacco industry did w h a t it had t o d o t o win, there were limits t o the strategies it would pursue. Attacking the Legislature could have helped defeat the initiative, but this strategy was rejected because the industry was worried about offending its defenders in the Lcgislature, where it h a d historically been well protected. According t o Pepples,

''

Woodward K. McDowell very 111uc1l wanted to carry a theme in the advertising which was a parody on the legislature. The opinion suncys ~ndicated that the voters currently hold the legislature in very low esteem. The proponents had begun to respond to our original message that this was a had la~v, poorly drafted. They conceded that it had some flaws hut said not to worry, the legislature mill tale care of any flaw by amendment. Woodward K. l l c -

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Dowell, therefore, urged a direct attack on the legislature to take advantage of the negative voter attitudes toward the legislature and to crowd the proponents into a corner. The companies differed in their reaction but after internal discussion, it was agreed that the tobacco industry must live with the California legislature for years to come and should not damage its relations by supporting advertising which made fun of the legislature."

This caution proved to be a wise move, since the California Legislature consistently supported the tobacco industry on a wide range of issues over the years, in particular with regard to diverting Proposition 99 funds away from tobacco control. As always, the tobacco industry was thinking in the long term. Loveday would get a chance to try again in just two years, when he, Hanauer, and their compatriots presented California's voters with Proposition 10. PROPOSITION 10 After the defeat of Proposition j in November 1978, its key proponents were exhausted, even though many supporters were urging them to try again. A few months after the Proposition j defeat, Glantz and his wife, Marsha, had dinner with Loveday and the inevitable subject of a second attempt came up. Lovedap responded, "Are you nuts? I'm going to go out and make some money!" Two weeks later, Loveday called Glantz and asked him if he would join a new effort to try another statewide initiative. What happened? In the June 1978 election, California voters had overwhelmingly passed Proposition 13, the Jarvis-Gann Initiative, which drastically cut property taxes, despite the fact that most of the state's political and business establishment opposed it. The campaign to pass Proposition 13 was managed by a relatively new political consulting firm named ButcherForde. A major electoral victory naturally attracts attention to a consulting firm, even if the victory is on a comparatively easy issue, such as getting people to vote to cut their own taxes. But Butcher-Forde also attracted attention within the California political community for the innovative way in which it managed and financed the campaign to qualify and pass Proposition I 3. Rather than relying on volunteer or paid circulators to gather the necessary signatures along with a separate fund-raising campaign, Butcher-Forde combined these two operations. They ran a large direct mail campaign in which they sent petitions to prospective sup-

porters with a request that they sign the petitions (and ask a few friends t o sign), then return the signed petitions together with a donation. Thus, rather than costing money t o collect the necessary signatures, the process of collecting the signatures became a fund-raising device. I11 the process, Butcher-Forde built a mailing list of supporters that could he sent subsequent fund-raising appeals t o finance the election campaign. And, of course, Butcher-Forde took a commission o n every piece of direct mail that Ivas sent. After winning Proposition 1 3 , William Butcher m d Arnold Forde \\.ere looking for another campaign to manage. Based o n polling, they identified clean indoor air as a popular issue with the voters. They approached Loveday and Hanauer with a proposal that Butcher-Forde manage a campaign for a new clean indoor air initiative. Loveday and Hanauer would write the initiative and serve as spokesmen and ButcherForde would do the rest. They would raise the money, qualify the initiative, and rim a winning campaign. It a11 seemed so easy. Hanauer and Loveday drafted a new initiative, cleaning up some of the problenis with Proposition j and calling it the Smoking and NO Smoking Sections Initiative. The new initiative did not distinguish between rock and jazz concerts, eliminated the need for partitions, limited what government could spend o n signs, provided for citations for violators, m d gave nonsmokers fewer protections than Proposition j would have. Californians for Clean Indoor Air was renamed Californians tor Smoking and N o Smoking Sections t o run the campaign, coalition partners were recruited, a n d the effort tor a new initiative was formally started o n August 24, 1979. Unfortunately, B~itcher-Fordefound that getting people t o give money to support clean indoor air was n o t as easy as getting them t o support cutting their o\vn taxes. The consulting firm dumped Californians for Smoking and N o Smoking Sections t w o months into the signature drive. According t o Hanauer, [Butcher-FordeI started organ~zingthese fund-raising letter campaigns. Thcy discovered carly on what we had discovered during Prop 5, that this 1s not 3 pocketbook issue for people. That there are a lot o f people \vho s ~ y "Yes, , me'rr with you," hut if you get $10out of them, you're lucky. . . . By the t m e Lve \vere hdfway through the signature drive, the two of them came up to \vine ;IIIC~dine Paul and me at a dinner at the airport, hasically to kiss u s off and sa!, "I guess you realize this is not a pocketbook issue and there's no way \ve can continue on this because we're losing our shirts." And we were happy to get rid of them hecause we didn't like them.l

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Butcher-Forde'c depai ture nras a p1 oblem tor tobacco control advocates, houever. It \\'IS one thmg t o run a c ~ n i p ~ '~~gn ndbe defeated at the polls b) a r n u l t ~ r n ~ l l ~dollar o n a d ~ e r t i s ~ nblltz g from the tobacco m d u s t r ~ It . was quite noth her t o sponsor a n mltiatl\e that d ~ dnot e\ en qual~f! for the ballot. Ad\ocates felt that the) could not h ~ c km;1\ from the InltlaLoveda?, Hanauer, a n d t h e ~ rcolleagues began a frantic effort t o moI A z e the old grassroots network and ralse money. In the end, they maI1aged to collect the necessarv slgmtures, thanks in part to the openmg of the St'zr Wgrs sequel, The E m p i r e Strlkcs B i ~ c k The . film was unmensel\ popular and m r a c t e d long lmes. Volunteers \\ orked the 11nesto collect s~gnatures.On June 2 6 , 1980, the Inltiatlre qualified for the N o ~ e m ber 1780 l ~ l l o as t Proposition 10. The tohacco industry started detailed plaiming t o defeat Proposition T O well before it qualified for the h d l o t . O n February r j , 1780, the t o b ~ c 111du5tr\ o 'S pollmg firm, T,lrrance and Xssoc~ates,presented a det a ~ l e danal)sis of P i - o p o s ~ t ~ oTnO ,s h o \ \ ~ n gsome changes in Loter attitudes smce 1978. Xccordmg t o the cornpmx 'S anal\ s ~ s "These , data suggest a strong feeling ot 'fair' pla) and equal r g h t s on the side of the '1nt1-smokers thdt has not been apparent m p r e \ ~ o u sc,~mpaigns."'l Proposition 10 had the early support of 7 2 percent o t the voters, up from the 68 percent that Proposition j had at the same time, primarily because nonsmokers felt that they had a right to clean indoor air. The report m-anled the industry that its successful campaign against Proposition 5 "did not lessen the public's desire for smoking regulation, it only convinced the public that Proposition j \vas a bad la\v" (e~uphasisin original).l 4 Tarrance a i d Associates suggested that Proposition T O was more popular than Proposition 5 because it appeared t o insure equal rights for smokers and nonsmokers and ~t lacked specifics about place, tlme, a n d enforcement methods. The report recommended these primary campaign themes to oppose the initiative: the ambiguity of the la\v and the power it would give t o bureaucrats, the inequality of the bill because it gave preferential treatment to nonsmokers, the waste of police resources, the outrageousness of the fine, the adequacy of current law, and the undesirability of government intrusion in private lives. The tobacco industry hired Robert Nelson and Eileen Padberg of the pol~ticalconsultmg firm of Robert Nelson a n d A s s o c ~ ~ ~to t e srun the c a r n p q n . Nelson ~ncorporatedC a l ~ f o r n ~ a X n sg a ~ n s Regulatory t Fxcess (CARE) o n June 12, 1980, t o serve as the front group to run the cam-

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paign. They then proceeded to recruit some prominent Californians to serve on the CARE's board of director^.^' The fact that the campaign manager recruited the board (rather than the other way around) underscored the fact that the board was mere window dressing. Indeed, before the hoard ever held a formal meeting, Nelson had retained the advertising agency Woodward, McDowell & Larson, the same agency that had run the campaign against Proposition 5 , to develop and run CARE's ads against Proposition 10. While the tobacco industry's money bought them victory in 1978 in tlie Proposition j campaign, their spending started to hurt them toward the end of the campaign. Mervyn Field, head of the nonpartisan Field Institute, which conducts the California Poll, observed two years later: "Another negative aspect to disproportionately heavy advertising is that it becomes an issue in itself. For example, with Proposition j, the fact that the tohacco industry was spending as much money as it was to defeat it, became an issue. There was a sort of a counter trend in the closing days of tlie campaign. I f the tobacco it~dustryhad rpeut (I coltplc more t7zillion dollms, it might hazle lost the electio?~"(emphasis added).'" Aware that the tobacco industry and its money had become an issue in the Proposition -jcampaign, CARE attempted to minimize tobacco industry involvement in the Proposition 10 campaign, despite the fact that the organization was established by and for the tobacco industry. O n August T j, 1980, CARE distributed a letter stating, "Cost prohibits the No on T O campaign from using media." '- In September 1980, when an interviewer from the Los Angeles Times asked Padberg, " D o you need the cigarette companies to fight this measure?" I'adberg responded, "We could do it without them. It certainly would be a lot easier with them. But we could d o it without them." l 8 In the end, the tobacco companies delayed their major advertising blitz until the weeks just before the election, pouring a relatively restrained $2.7 million into the CAKE campaign against Proposition 10. Although proponents of the initiative spent $707,h78, it was not enough money to overcome the industry's saturation advertising. The voters rejected Proposition T O by the same margin- j q percent "no," 46 percent "yesn-as they had Proposition j two years earlier.

GOING LOCAL In December 1980, a month after loslng the P r o p o s ~ t ~ oI no election, Loveday, Hanauer, Glmtz, Welsherg, and Chuck Mawuon (a volunteer

\vho had kept an industry "look-alike" bill bottled up in the state legislature during the Proposition r o fight) got together in Hanauer's living room in the Berkeley hills t o decide what t o d o next. After suffering their second defeat in a statewide initiative, they decided that it was time to change tactics. The Legislature was cler~rlyunder the thumb of the tobacco industry and, while the public supported the idea of clean indoor air, the nonsmokers' rights advocates recognized that they could not raise the mane!- needed t o counter effectively the tobacco industr!.'~ advertising campnigns against a state ii1itiatit.e. On the other hand, they knelv from both polling and personal experience that the public supported clean indoor air. The!. decided to work o n local ordinances hecause the one clear success they could point to \vas the Berkcley local clean indoor air ordinance. They decided to focus the limited resources of the nonsmokers' rights advocates o n one community at a time. They reasoned that, while the tobacco industry \vould almost certainly oppose every ordinance, their campaign contributions, lobbyists, and massive advertising c a n paigns would not work as effectively as well-organized residents w h o knew the members of the city council and favored the ordinance. To raise money, advocates decided t o use the mailing list that had been developed during the campaigns for Propositions j and 10. Ray Weisberg promised to seek seed money fl-om the American Cancer Society, and Chuck Mawson quit his job as a computer s,llesman to ~ v o r kfull time on the effort, together with the campaign's part-time bookkeeper, Bobhie Jacohson. The campaign organization lvas renamed Californians for Nonsmokers' Rights iCNR), and thc nonsmokers' rights movement elltcred a ne\v phase. Seven months later, o n July 15, 1981, the first local clean indoor air ordinance lvas enacted when the city council of Ukiah, a small town 1j o miles north of San Francisco, adopted an ordinance that was essentially identical to Proposition TO.Over the neat three )-ears, C N R continued t o identify and work lvith local activists throughout California, and by May 1983 twenty-one cities or counties had passed local clean indoor air ordinances. Ch'R's local (>I-dinancestl-ateg!. \vas working. T H E SAN FRANCISCO ORDINANCE Quentln Kopp, a powerful member ot the Sdn F r m c ~ s c oBoard of Superklsors, h ~ supported d Propos~tlon5 , and Han,~uerknc\\ hml person,lll\. Hanauer had approached Kopp o n several occasions ~ h o u the t possih~l-

Beginnings

23

ity of carrying a San Francisco ordinance, and in 1983 Kopp agreed to introduce a comprehensive clean indoor air ordinance for public places and workplaces. But before he could introduce his ordinance, another supervisor, Wendy Nelder, surprised everyone hy announcing that she was going to introduce an ordinance limited to workplaces. X week later Hanauer was on San Francisco radio station KCBS discussing smoking issues in general and CNR specifically, along with Mic h ~ ~Eriksen, el who was in charge of health issues for Pacific Bell. (Eriksen s~~bsequently became head of the federal Office on Smoking and Health at the Centers for Disease Control and Prevention.) Hanauer mentioned that CNR \tras working on a San Francisco ordinance without giving details. Nelder was angry that Hanauer had not mentioned her name and let him know that she wanted nothing to do with him or CNR. CNR was placed in the awkward position of working for an ordinance whose principal sponsor would not talk to the organization's members. Despite the personality problems and vigorous opposition from the tobacco industry, the Board of Supervisors passed Nelder's workplace smoking ordinance by a vote of T O - T o n May 3 T , 1983. San Francisco became the twenty-second locality in California to enact a clean indoor air ordinance when Mayor Dianne Feinstein signed it into law on June 3, r 9 X 3. The ordinance required that all workplaces have policies on smoking that accommodated the needs of smokers and nonsmokers. If a n accommodation acceptable to the nonsmoker could not be found, however, the ~ v o r karea would have to be smoke free. Using language suggested by the Rank of America, the ordinance gave flexibility to employers but established the right to a srnoke-free environment for employees. While the San Francisco ordinance was neither the first nor the strongest, it attracted national and international media attention.

THE TOBACCO INDUSTRY'S COUNTERATTACK O n June r q , 1983, less than two weeks after Feinstein signed the ordinance, several people who described themselves as a "group of union leaders and small businessmen" announced that they were organizing 3 petition campaign to overturn the ordinance at the polls the following November. ''The group was nominally chaired by Jim Foster, a gay political activist and founder of San Francisco's Alice B. Toklas Democratic Club. The Chamber of Commerce announced that it was supporting the eftort to overturn the ordinance, reversing an earlier agreement with

2-4

Beginnings

CNK t o support the m e a s ~ l r eThe . ~ campaign against the San Francisco Workplace Ordinance Lvas initially called Californians Against Government I n t r u s ~ o n but , the name was changed t o San F r m c m a n s Xgalnst Government I n t r u s ~ o n(SFAGI), poss~blybecause the acronyni of the original name was pronounced " ~ a g e y . " ~The " group had until July I (thirty days from the date of passage) to collect rq,ooo valid signatures for suspending the law and forcing a referendum on the November hallot. David Looman, a political consultant and SFAGI committee member, said, "The tobacco industry has been asked for contributions, but n o money has been rece~vedfrom any tobacco firm yet." I y The industry provided a substantial war chest-over a million dollars -and hired Nelson-Padberg Consulting (Eileen Padberg had been promoted t o a full partnership with Robert Nelson since they had directed the Proposition 10 campaign) t o run the San Francisco campaign. Over half the initial budget of $ I , o ~ ~ , o o oas, of July 12, was for advertising, including direct mail, radio, and television. The money that the industry put into the campalgn Lvas only part of the effort; the cigarette companies planned to reach smokers with cigarette carton inserts o r stickers a n d point-of-sde n ~ a t e r i a l s . ~ As' the Nelson-Padberg camp,ugn plan makes clear, Foster and SFXGI had kery little t o d o w t h dec~sion making for the ~ c t u a lcampaign, all of m l x h had been planned 111 July 15183."~' In order to collect over 19,000 \ a l ~ dsignatures In the t w o weeks rem,mlng before the July 1 deadlme, the tobacco industry h ~ r e dthe Southern California firm oi Bader and Xssoc~atest o collect oLer 40,ooo sign a t u r e ~ . ' The ~ i n d u s t r ) ' ~use of p a d signature-gatherers, at a cost of $40,000, made ~t d~fficultto h d e the fact t h ~ the t tobacco industry lvas financing the repeal effort. For actlvlsts w h o had been i n ~ o l i e d111 the c,tmpagns for Proposltlons j and 10, the pattern over the next fixe months was predictable from prevlous ~ n d u s t rbehavior. ~ A campalgii manager would be ~ I I - e d to create J i ' g r a ~ s r o o t ~organization. " The ~ n d u s t r vwould then pretend that this organization was independent, vigorously denying industry involvement. In fact, the campaign would be funded by the industry m d managed by the firm it had hired. When the campaign finance laws finally req~iireddisclosure of the fact that virtually a11 the money came from the tobacco companies, the anti-ordinance campaign would continue to assert that they were just "interested citizens" w h o approached the benign tobacco industry for help. As the tobacco industry has always

Beginnings

2 -5

done, the campalgn agalnst the ord~nance\vould ,ivo~dd~scuss~ng health dangers of secondhand 5moke and focus ~nsteadon the costs o f enforcement and the lssue of government ~ntrus~on.'" TOBACCO C O N T K O L ADVOCATES MOBILIZE [Vhile irritated with Nelder, ordinance proponents immediately mobilized to defend the ordinance at the polls. At a meeting in Weisberg's home in San Francisco's Seacliff district, Weisberg, Loveda); Hanauer, Glantz, and others decided to create a new independent political c o n nitt tee to raise the funds to run a Yes on Proposition P campaign to defend the ordinance. Since Hanauer and Loveduy lived outside San Francisco and Glantz, a San Francisco resident, was president of CNR, none of them seemed an appropriate chair for the campaign. Weisberg accepted the chairmanship of the effort and pledged to use his connections with the ACS to obtain $ 1 5,000 to get the campaign off the ground. The San Francisco Lung Association also contributed $7,500. CNR coinmitted its mailing list for fund-raising purposes, even though everyone recognized that diverting donations away from CNR would create severe financial prohlems. From the beginning, the theme of local control was the centerpiece of the campaign to uphold the ordinance. On August I 7 the proponents held a press conference on the steps of the San Francisco City Hall to announce formation of their campaign organization, San Franciscans for Local Control; Weisberg explained that the law "is to protect the health of people who live and work in San Francisco. . . . Our concern is the public welfare of San Francisco and the integrity of its legislative process. The tobacco companies' only concern is to sell more cigarettes."" The group hired Ken Masterton to manage the campaign and opened an office in San Francisco's Castro district. Nelson-Padberg pointed out to the tobacco industry that "the campaign will be closely watched by major cities throughout America, and the conduct of the campaign-as well as the elections' results-will have major implications to attempts to adopt sirnilar ordinances in other nunicipalities."" Tobacco control advocates thought it was remarkable that the tobacco industry considered the San Francisco ordinance so important; as a result, they also viewed the fight as nationally significant. That summer, lvhen Glantz and Hanauer attended the World Confer-

26

Beginnings

ence on Smoklng or Health In W m n ~ p e g C , a n ~ d they ~ , found a strong Interest In the outcome of the P r o p o s ~ t ~ oPnfight. Many tob'1cco control ,~dvocatesoffered suggestions on how t o w ~ nthe campasgn, t o w h ~ c h C l m t z responded, "We don't need ~ d e a s ,me need mone!. If we r a s e $1(0,000, we'll m In, ~f n e raise $ ~ o o , o o o ~, ' l lose." l

THE P K O P O S I T I O K P C A M P A I G N Polls showed that Proposition l' was leading by a 2-1 margin at the beginning of the campaign, but in the face of the industry attack, the mnrgin narrowed. The industry's strategy was based o n its success in previous campaigns. According t o Nelson-Padherg's planning document of July 1g8;, the aim was to convince voters that the ordinance Jvas "unnecessary, unworkable, or costly."" The first objective of the Nelson-Padherg campaign was to secure a list of voters from the ~ n o srecent t election-an effort to recall Mayor Dianne Feinstein hecause of her support for gun control-and to sort then1 by approximately one hundred variables. A phone canvas of likely voters was planned to identify those opposed t o the ordinance; these voters would then receive a t h a n k - ~ O Lletter I and an application for an absentee ballot. Undecided voters were t o get a "gentle push" argument as well as illtensi1.e direct mail advertising. Nelson-I'adberg planned for twenty paid people t o work five shifts for sixty working days t o accomplish the phone screen. The telephone canvas, which eventually reached 65,ooo voter households, formed the basis for the industry's direct mail campaign, which was concentrated on likely voters, the relatively conservative western part of San Francisco, blacks, and gays.'The focus on the gay con?~ n u n i t ywas clear from the hiring of Foster and from the industry's effort early in the campaign to raise the fear that Proposition P would set a precedent that \vould be used to discriminate against people with To make it difficult for Proposition P supporters to air their ads, Nelson-Padherg planned to delay its radio and tele1,ision advertising until the final four weeks before the election. Unlike the tobacco industry with its essentially unlimited resources, the Yes on P committee had little money. While the proposition's supporters hoped to buy some television and radio advertising, they expected t o get most of their advertising space for free under the Federal Communications Commission (FCC)'s Fairness Doctrine. In 1983 the FCC still required that electronic media fairly present both sides of controversial issues. Since the passage of Proposi-

Beginnings

27

tion I' was obviously controversial, once the No side began running paid advertisements, the Yes side could approach the television and radio stations and ask for free time to respond. Nelson-Padberg recognized this possibility: "Earlier advertising would only stimulate additional Fairness Doctrine opportunities for our opponents, expose our advertising strategy to long scrutiny, and is not necessary due t o the high voter awareness pre-existing the campaign." '' Exposing the tobacco industry's backing of the N o o n P campaign was the central thrust of the ordinance supporters. They attacked the industry at every turn and sought to capitalize on public distrust of the tobacco iildustry. They also made a concerted effort to reduce the effectiveness of the ru'o on P advertising by forcing the television and radio stations that were broadcasting the advertisements to disclose the real sponsor-the tobacco industry, not San Franciscans Against Government Intrusion. The Federal Conm~unicationsAct requires that advertisen~entsidentify the true sponsor, and the advertisements against Proposition P listed only San Franciscans Against Governmental I n t r ~ ~ s i oasn the sponsor, with no mention of the tobacco industry. Volunteer lawyers, including Loveday, pulled together extensive docun~entationthat the industry was really paying for the advertisements. They argued that it was the stations (not the sponsors) who were responsible for seeing that the "tag lines" on the advertisements identified the true sponsors. At a press conference Loveday and others announced that they were sending torrnal lettel-s to all radio and television stations running the No o n P advertiseinents t o demand that the tag lines be changed t o "Paid for by the tobacco industry"; they threatened t o file complaints with the FCC against stations that refused. X few days later, the NBC afiliates in San Francisco-KKON television and KNBR radio-required that the N o on P campaign clarify the tag line in its ads to indicate tobacco industry involvement."' Rather than adding a n oral tag line saying that the campaign was paid for hy the tobacco industry, the industry pulled its advertiseinents off KNBR, one of the largest radio stations in San Francisco. After threatening to sue the stations, the industry decided t o acquiesce o n the television advertisements and changed the visual tag line to get them back on the air (visual tag lines are not as prominent as oral Even if other stations did not respond directly t o the pressure t o correct the tag lines, raising the issue had helped highlight the tobacco industry's efforts to hide its political activities.

28

Beginnings

Nelson-l'adberg recognized the effectiveiless of the Yes o n P strategy surrounding the tag lines: C'llifornians for Nonsmokers Rights did an excellent job of urging television stations to give them free television advertising time. Additionally, they were able to convince KRON-TV that the station should require our campaign to identify our advertising as having been "paid for by San Franciscans Against Government Intrusion which is financidly supported by companies in the tobacco industry." This requirement h!. KRON-TV stimulated extensive discussion by other television stations, radio stations, and daily newspapers in the city. In fact, this action by KROK served as a kind of a catalyst to the "money" issue, driving this issue into very s h x p focus in the final days preceding the e l e c t i ~ n . ~ ~

The fapored campdign theme of the proponents got an important shot in the arm lust three weeks before the elect~on. The Yes on P forces, habing learned from the Proposit~on5 and r o campaigns t o make the tobacco industry the issue, managed to maintain a consistent message throughout with the central theme "Tell the Tobacco Industry to Butt Out of San Francisco." Working with a small advertising agency run by Edgar Spizel, they prepared two television advertisements making this point. One advertisement involved several well-known S'in Fr'lnc~scopolit~cmlsand other figures of var! Ing polit~ c a ~l ~ I - S L I ~ S Ithe\ O I I all S ; greed o n one thmg-that the tobacco industrh should butt out of San Francisco politics. The other, which won an Xddy award, showed a cowboy on horseback riding up a San Francisco street and urglng people to tell the tobacco companie4 to "butt out'' and " ~ o t e1e5 o n P." While the Yes on P forces belleked from the beginmng that thev had '1 real chance to win bec'~use an election conte5t against the tobacco mdustry in San Franc~scowould take less money than one throughout the entire state, they gren increasingly frustrated b) the w q c ~ t yp o l ~ t i c ~ a n s were allowing personalities to interfere in running an effective campaign. According to Hanauer, It was very exciting because we knew Tve were in the race this time. The polls showed that we had a good chance, that \ve weren't losing ground rapidly like we had in the other t\vo campaigns. And we had support that we didn't hate hefore, both editorially and [among] some business people. What we didn't have lvas Wendy selder'c assistance. . . . She w'lnted to run her own campaign. She insisted on making her own television spots. They were atrocious. They were the epitome of the bad talking head . . . "Please vote 'yes' on P because I

Proposition 99 Emerges Dr. Dr. Dr. Dr.

Michael Lopiano, Santa Barbara area. Paul Dugan, northern California rural area. Tom Elrnendorf and Dr. James Moorfield, Sacramento area. Frcd Achermann and Dr. Roherta Fenlon, San Francisco area.

Xlet with "key" black political leaders to solicit and begin solidifying black support among state legislators for the anti-initiative campaign. \Ve met personally with the following black state legislators or legislative staff:

\K ilhe BIo n n, Speaker of the Assembl~. LL1une Waters, Malol~thWhip. Curtis Tucker, C h a ~ r m a nof the Xssembl~Health Committee. Dodson Wilson, Statt to Speaker W~llieBrown. Met \vith D a d Kin1 re Korean community and advise [sic.] re other possible Asian consultants. Met with Xssemhlyman Dick Floyd, Tommy Hunter (Cdif. State Pipe Trades) and Jack Henning [secretary-treasurer of California hF1.-CIO] regarding the proposed tax initiative. hlet continuously with Jack Kelly [regional vice president of the Tobacco Institute] to coordinate testimony and lobbying activity.-

The t o b x c o ~ndustrygot its way In Sacramento. When ACA 14 came before the Assembly Rebenue and Taxation Conlnuttee on May 18, 0111) seven of the commttee's sixteen members showed up (two short of the necessarv quorum), precludmg any actlon on the h111.~-Comm~ttee cha~rmanJohan Klehs (D-San Leandro) d ~ dnot even allow supporters Assembly Member Dlck Floyd (D-W~lmington) of ACA 14 to test~fv.~' marched up and down the alsles blowing clgar smoke at supporters o f ACA 14. The tobacco lndustry's contract loblq~st,A-K Assoc~ate\,declared victory: In order to accomplish our anti-initiative strategy to discourage support for the pro-initiative coalition, we felt it was imperative to attain a decisive victory in the first committee to show strength and resolve o n the part of the opponents to the proposed tax increase. In fact, when these two bills were heard before the Revenue and Taxation Committee, they were dealt a "crushing" defeat. Neither received a motion, much less a single affirmative vote. Our major goal of weakening potential support and showing strong opposition was certainly accomplished. The California Medical Association was shocked that their intense lobbying effort could not receive one "aye" bore in the Committee, considering their campaign support for the members

Proposltlon 99 Emerges

46

of the Revenue a n d Ttixatmn Committee (Organized Lledicine-S80,joo \S. T I - S I - ; , ~ ~during ~ r g X h i . The m i n u t c ~of the proponents' J u n e 17, 1 9 8 7

organizational meeting even makes reference t o this defeat.-

The motion t o propose

XCA 1 4 d ~ e dfor lack of 1' second.

T H E C MA AKL) T H E TOKXC ('0 INDUCTRL I n l t l , ~ t ~ proponents \e n m t e d the ( h1X Inr o l ed ~ b e c ~ ~ i sunlike e, the i o l unt,tr\ he,ilth 'lgencies, ~t h ~ sdi g n ~ f i c m pt o l ~ t i c musile ~l ,ind ~tn a 5 I ~ c h c~l ~ n c l u d ~ nlalg a n d x c u \ t o m e d t o spend~rigInone! tor p o l ~ t ~purpose\, tlatl\e c,lmp,tlgns. The tobacco t ~ Ux as also appealmg t o the Ch1A hec,lu\e ~tcre'lted a IK\\ pool oi mollex -$600 1ml110n J \ e'lr-to p ~ xtor m e d ~ c ~seri i l Ices. F ~ o m the begmmng, home1 er, the ~ e l ~ ~ t ~ o between nsh~p the he'ilth groups m d the C hlA n , ~ sl o c k \ . Indeed, m rgc,;, Connellx reflected, "If I had to d o ~t o i e l again, I wouldn't hai e had CMX in the room, because the\ wele more trouble t h m the5 n e l e woith." The tobacco industl\ n a s also interested in the MA's deep pockets and s m that h e e p ~ n gthe ChlA o u t of the u p c o m ~ n gfight o \ e r the 1111tlatl\e IS C ~ L I C I The ~ . uldustr\ Lnen t h ~ ~t t would he difficult , ~ n dexpensiLe t o beat the tob,icco t a x ~ i x t ~ a t nate the ballot box a n d decided t h ~ the t best strategl it as t o blocl\ proponents f r o m collectmg enough signatuies t o q u a l ~ hthe inltlatl1 e In the first pl,ice.- Smce ~tcost\ inonex t o run ,I signature d n \ e m d the C\IX \\,IS the most like11 soutce of b ~ g mane\, the tobacco ~ n d u s t l \~ L Ined I ~ t attention s t o con\ irlclng the C MA t o stop 4upportlng the t o b a c ~ ot,i* eftort. An X-I< ,?is\o~~ates iepurt exp1,ilned \trateg, thls \\ ,I\ : Recognizing that the most etfectivc approach t o any such hattlr is t o contaln and, if possihle, take ~ n - a ypotential resources f r o ~ nthc proponents, our i n tial g o ~ was l t o contain the C,ilifornia Lledical Association. ~ v h ohad already pledged !$I million t o qualify the initiativc. \Y1ith t h ~ sk ~ n dof resources, there is n o the initiative could he kept off the hallot. A ~ I I I I pC l m I I ' L I S fL1.11111liztcd t o d r s s o i ~ r ~ ~and g e kccp t l ~ cCd\\.IA oirt oj tile 111itr,1tirv.This i i ~ ~ l ~ ! d e i l l pflssib1i~c o r ~ ~ ~~t icr?f i. - r ~ ~ c ' ~ fii!itii?tk~cs i c i ~ ? c ' '711d/egis~iltioll.J S well '1s the use of &K's considerahle conr,lcts xvithin organized medicine. H ~ 7 ~ ~ ii lnlg~ e ~ ~mdy pci~dcd~o11siil~1~711le t$il?'t It7 t l ~ i areir s ifitring t l L~c ~~I s / ~ ~ph11se ~ I L ,of( 'the pr(i~ ' . L U ? ! itJettlmed orcr L?ttei~tion d i n ~ s j%/l t timr t o d i s s ~ ~ i f ithtr l ~ gC!b! fPom i o ~ r ~ i nt lg~ cfiL7?'. were i r m i e m c l ~ S' I I C C C S S , ~ I111 ~ this rt~gizrd.CiZM, n f t e ~corzsideluble prcsstrre, drc-rdcd to "tokerri:~~" t1.w tax iiiitiatiz~ec ~ I ~ L I ~ , : 'with, ) I a t best, a ! $ ~ s , o ocontribution o and the possihle use of their mailing list tor a solicitstion letter. To date ChLX has not x t u n l l y given the proponents m y campaign

P r o p o s ~ t ~ o99 n Emerges

4'

Gene! x e d some nell placed and \ o c d compl,l~n~ng from org,lnlzeci ,Ink ,und file membership t h r o ~ ~ g h othe u t s t x e to the C hlA's C o ~ ~ n c(orll g m m d mcd~c~ne's goLelnlng hod] m C,ll~fornla). I

Arranged for the Golden S t a e Medical Society (statewide black ph!-sicians organi~cltion)to object to the ChfX's part~cipationin the initi'ltivr. hlet \vith several legidatol-s \vho are anti-medicine for various personal 2nd political reasons to have anti-medicine legislxion drafted and leaked to the right CXIX leaders.- [emphasis different from original]

I n i t ~ a t ~proponents ~e complamed t h ~ the t C M X w,ls not enthus~asti~ depth call\ \upportlng the lmtlatlre etkort, hut they had no ~ d ofe the of the connections between the CMX and the tobacco ~ n d u s t r r .

THE NAPKIN DEAL Tort reform WAS an actwe Issue before the L e g ~ s l ~ t u at r e the same time '1s XCX 14, m d the CMX needed to protect ~ t hlalpract~ce s Insur,lnce Compensat~onRefol-m Act (MIC RA). 111 1975 the CMA had persuaded the Legisl,~tureto pass MICRA, w h ~ c hcapped m c d ~ c dnlalpractlce judgments m d the size of t r d IJW> er contmgency fees. MICRX had I~~uilcliecl an ongoing fight ~ h o u product t I ~ ~ b ~ lamong i t > doctors, t r 1 ~ 1law?er\, ~ n s u r m c ecomp,lnles, m,~nuf;tctnre~-S, and others, L\& e\ ervone will~ng to m i k e s u b s t m t ~ a c,lmpalgn l contributions to hlock eiel-vone else fro111 gettlng w h ~ the! t manted through the Leg~sl,~ture. The mmuf,~cturersand Insurance compmles, t ~ r e do f dealing m t h

48

Proposition 9 9 Emerges

the Legislature, had used the initiative process to pass Proposition j I in 1986. Proposition j I ended the legal doctrine of "joint and several liability" whereby the wealthiest defendants in multi-defendant lawsuits paid the vast majority of the damages if other defendants did not have the resources. The insurance companies were willing to go to the ballot again to pass an even more favorable law. O n the other side, the trial lawyers and consumer groups were willing to try to pass their own initiative that would make it easier to sue and recover damages. O n September 10, 1987, Assembly Speaker Willie Brown (D-San Francisco), who had by the end of the 1988 election cycle received $12 j,900 in campaign contributions from the tobacco industry, hosted a dinner meeting at Frank Fat's, a Sacramento restaurant popular with Capitol movers and shaker^.^"." He invited the trial lawyers, the CMA, and the insurance companies to work out a tort reform deal that would accommodate all of their interests and avoid a very costly initiative battle. They were joined by the tobacco industry. The dinner guests (public health and consumer groups were excluded) worked out a nonaggression pact in which everyone at the table got something. Insurance companies got protection from lawsuits and avoided regulation of their industry, doctors kept their existing liability protections and got a higher standard of proof that a victim had to meet to receive damages, and trial lawyers got larger contingency fees to compensate them for the fact that the cases would be harder to win. The tobacco industry (and producers of castor oil, butter, sugar, and alcohol) got virtual immunity from lawsuits based on consumer use of its "inherently" unsafe product.29 The deal was written on a napkin; the "Napkin Deal" emerged as a legendary political deal in Sacramento."Jo The resulting bill, introduced by Senator Bill Lockyer (D-Hayward),was the subject of a perfunctory one-hour committee hearing, went to the floor (where it was blocked from amendment by the leadership), and passed by a wide margin. The tobacco industry clearly understood the intimate connection between MICRA and the tobacco tax initiative insofar as it related to the CMA. In its report to Mozingo of the Tobacco Institute, dated September 24, 1987, shortly after the Napkin Deal was enacted into law, A-K Associates analyzed the CMA's position: To date organized medicine has stayed out of the [tobaccotax] initiative fight. In all honesty, luckily, the C M A S primary objective was tort reform and they planned to use the bulk of their resources in sponsoring a tort reform Initiative at the same time as the tobacco tax Initiative would be on the ballot i f it

Propoutmn

Emerges

49

should q u ~ z l ~Of ~ V~ I. O U Swe~ Jzlsed ' , this to our great advantage in ~ o n ~ ~ i n ~ z t z g CMA to stay out of the tux initiative. During the lust day o f t l ~ c1 9 8 - California legislutiue session, the trld attorneys and t l ~ eproponents of tort refirm came to n political compromise zvh~chwus subsegttentl~~ enizcted /I? t l ~ e kg~slatnre.As part of this compromise there 1c1usan agreenzent to u fil~eycilr rnorntorizm on tort reform initiutz~magreed to by all purtzes, incInding t l ~ ~ ChlA. This conld potentidy open t i p t l ~ cC M A to re-tl~inkir~g their position ~ r regnrd z to the proposed tobacco tax inlt~atiz~e. K+ ure dupli~lztingull of ~ t w previous efforts to asswe that this does not /~dppen.-[en~phasisin original]

The industry understood how central the malpractice i~lsurailcereform issue was to the CMA, more central than Proposition 9 9 . The CMA would be willing to make some trades to get the tobacco industry's support. When Roger Kennedy, a Santa Clara County physician who was active in both tobacco control and the CMA, n7asasked whether he kvas surprised when the CMA signed off on the Napkin Deal, he said, "I think that it was something that was so important to the leadership at that time. . . . In order to preserve that MICRA . . . they probably would have done almost anything. Because that was lumber one." ;' CONCLUSION Meral and h l e k e ~ n s o idea ~ ~ ' ~of increasing the tobacco tax and allocating some of the money to public health and environmental programs had matured and developed a committed constituency, led by the AL.X and XCS. After docutnenting public support for their idea, they made the obligatory attempt at getting the Legislature to act. Following the bill's defeat, the proponents of the tax increase were poised to start their initiative campaign and hoped, vainly, that they would receive substantial support fronl organized medicine. They had no idea how deeply the tobacco industry had already neutralized the CMA as they moved into the battle to qualify the tobacco tax initiative for the ballot campaign for voter support.

CHAPTER

4

Beating the Tobacco Industry at the Polls

Having laid the grouncl\vork ior going directly to the voters with their proposal to increase the tohacco tax, proponents still had to finalize the initiative and develop the necessary political and financial resources t o withstand the huge campaign that everyone knew the tohacco industry \vould mount. L O C K I N G IK M O N E Y F O R P R E V E N T I O Y

B\ inid-hI,ir 1987, Curt hlekernson (XLA),Tom Najera (ALA), Bets) Hlte (ACS),and Xssembl~hIember L l o ~d Connelh (D-Sacranento) had begun discussmg the t~ansition from the l e g ~ s l m \ eto the inlt~ati\eprocess.' ' T m H o n e , Connelli's cll~efoi staff, took responsibil~t~ for w ~ t lng the initlatlre. HIS goal \ v ~ sto plcsent somethi~lgclear and understand'ible to thc public t h ~ \\as t 1' s imperi ~ o u st o i~ldustriattack '15 poss~hle.hIelzemson, H ~ t e N,ljel,l, , J I I ~ C o n n e l l ~\\ere Howe's pnmar) sources of ieedback d u r i ~ l gtlus ~nltlaldr'liting. As the det,~dsof the Inlti,iti\e b e g m t o tdke shape, Xlekemson was adamant that some oi the re\ euues go to\\ ard fundmg tohacco prex elmon proglanis. k ~ e nbefore the Legl,l,~t~i~e deteated XCA 14, he piedicted, I t l m k n.e have three major arguments for dealing with the tohacco problem: health impacts, kids, and economic impacts. While \ve may need t o suhstantiate each of these in grcater detail, they are real and extremely difficult for the tohacco industry, or others, t o challenge. In these arguments lies the justifica-

B e m n g the Tobacco ludustrl a t the Polls

51

tion for increasing the t a x and for focusing the tax revenues o n the problem. Most important is prezwztio~z.Everything else pales in relat~ont o p e r s u a d ~ n g kids not to smoke and helping smokers to quit. This is oar justification for demanding t h ~ l J.t suhstantid portion of the funds go for school and community health education. W'itbottt t l ~ i gmrantet3, s p r e z w ~ t t o nfi472ds zoill Oe elimim t e d t u l ~ e n e ~short w term crises emelge.' [emphasis in original]

Mekemson's early insistence that money for prevention be tied to the i n tiative proved critical in fights over implementation years later. Even with this strong language, public health proponents would face an uphill fight to maintain the prevention elements within Proposition 99 against strong opposition in the Legislature from the tobacco industry and the C N A . Connelly wanted some legislative discretion to make the proposition less vulnerable to attack as an instance of "ballot-hox budgeting." In a May I j, 1987, men~orandum,Mekernson was worried about not including some restrictions. He wrote, "I contin~ieto feel that we need to set percentages. I know it isn't nice not to trust the infinite wisdom of the legislrtture, but I don't. If it comes down to dealing with ininiediate cl-iws as opposed to funding long term solutions, the pressure for the immediate is tremendous." ' Mekernson, Najera, Hite, and Connelly decided to hold a "high-levellhigh-stakes" meeting of leaders from the participating organizations and other interested groups. The meeting occurred in San Francisco on June 17, 1987, with the CMA, California Association of Hospitals and Health Care Systems (CAHHS), Planning and Conservation League (PCL),Blue Cross of California, California Dental Association, California Thoracic Society, and the Health Officers Association of California attending. The following revenue allocation was presented at the meeting: 2 j percent to medical care (which included -5 percent for research), 20 percent to education, j percent to the environment ( n o n health), and the remaining jo percent to established accounts, to he allocated by the Legislature. In writing the initiative, the Coalition tried to select language that \vould broaden public support. One important instance of this approach Lvas the titling of the initiative. The polling conducted for the Coalition (by Charlton Research) as well as for the tobacco industry (by Tarrance and Associates) had showed that Proposition 9 9 was viewed more pos. . ~tively~ v h e nframed as a health issue. So Connelly pushed the Coalition to come up with a title that emphasized the health message; this title would help define the issue in the campaign, in the literature nlailed to all voters, and in the voting booth where voters were reading the ballot items. According to Hite, "We submitted for title and summary with this

52

Bcmng the T o h ~ c c oI n d u j t n at the Polls

real great encouragement from Llopd a b o ~ l thow it needed to be the 'Health Protection Act, Health Protection Act!' And the opponents Ivere just scared to death that was hou7 it kvas going to get titled. h d guess what? We got it titled. Attorney General Van de Kamp was very good to us." ' A seemingly minor clause in Proposition 9 9 , as it was eventually finalized, was to cause great problems for tobacco control advocates. The drafters of the initiative specified that it could be amended by a fourfifths vote of hot11 houses of the Legislature if the amendments to the initiative were "consistent with its purposes." This clause was included to avoid criticism that the initiative \I-ould be inflexible; as a practical matter, the authors felt that only technical amendments would be able to garner this level of support. Pro-tobacco forces would eve~ltuallpuse this clause to loot Proposition 99 revenues. ORGANIZING T H E CAMPAIGN The ALA's original $ jo,ooo contribution defined the financial standard for Executive Committee me~nbershipof the Coalition for a Healthy California. From June through September, the Executive Committee consisted of the ALA, XCS, PCL, and Connelll-. The AHA, which did not ~ not consider political issues like the tobacco tax initiative a p r i ~ r i t ) ;did participate on the Executive Committee, nor did the ChIA or CAHHS. The effort hy the tobacco industry to "tokenize" the ChlA's participation was only one part of the industs!-'S strategy to deny resources to the Coalition. In its report to the Tobacco Institute, A-I< Associates noted, "Connelly, being a strong and respected member of the liberal political community, personally sought help from the HapdenIFonda machine and organized labor." ' The industry hoped to block the participation of these groups, too. Campaign California, a liheral statewide political organization founded bp Assembly Memher Tom Hapden (D-Santa hlonica) and his wife, actress Jane Fonda, had approached the Coalition in the spring and expressed interest in participating in the tobacco tax effort. While Campaign California had money to help finance the effort, a full-time campaign staff, and statewide volunteers, some Coalition members were concerned that Hayden, Fonda, and Campaign California's liberal politics would have a negative impact on the Coalition and the tohacco tax effort. By July, however, they let Campaign California join the Executive

Beat~ngthe Tobacco Industry at the Polls

53

Committee because the Coalition needed their help. The industry countered this move by approaching Campaign California through the polling firm Fairbank, Bregman and Maullin (which also did a lot of work for Democrats) t o convince Hayden "that there is little advantage t o him personally or politically t o get involved in the Connelly tobacco tax I n tiative. HaydenIFonda has pledged a modest $ L ~ , O Ot O o the tax initiative." ' This amount was the same as that pledged by the CMA, enough t o support the effort without providing it with sufficient resources t o succeed. But in contrast to the CMA, Campaign California was to make a significant contribution to the campaign that went \veil beyond monetary value. Connelly tried t o attract organized labor by offering to incorporate into the tobacco tax initiative the provisions of a pending union initiative designed to strengthen Cal-OSHA's worker protections. Jack Henning, secretary-treasurer of the California XFL-CIO, t ~ ~ r n ehim d down. (Organized labor had sided with the tobacco industry in opposing Propositions j , 10, and P.) The tobacco industry, working through Paul Kinney of A-I< Associates, had already made a deal to keep organized labor out of the tobacco tax effort.' In September rq87, W. Jurnes Nethery, a dentist and the immediate past president of ACS, \vas elected chair of the Coalition, which reinforced ACS's involvement. The Coalition hired Jack Nicholl as full-time campaign director. Nicholl, the past executive director of Campaign California, brought essential statewide political and campaign expertise to the Coalition. Nicholl set up the campaign headquarters in Los Angeles. When later asked why he had chosen Los Angeles over Sacranlento, he ansmwed, "If you listen to most of the griping that's going on, it's the Sacramento crmvd that's griping. . . . They were always tied in these knots of conflict and contradiction among themselves. . . . That's why I insisted that the headquarters had to be in LA. Because that's where people are, that's where the money is, and that's where you get away from this crap." The Coalition also hired Ken Masterton to coordinate the signature campaign. Masterton, who had managed the winning campaign for l'roposition P in San Francisco in 1983, was not only experienced on the tobacco issue hut also willing to work with both voluntary and paid circulators. Nicholl tried once again t o interest some of the veterans of the Propositions 5 , 10, and P campaigns and was rebuffed as others had been. Nicholl approached Stanton Glantz of the University of California, San

B c m n g the Tobacco Industr! at the Polls

i4

Franc~sco,whose expertise In mtl-smoking legsslat~onhe respected. t G l a n t ~declmed to get 111.iohed:"I told them I thought thev d ~ d n ' have n praxer of \ v ~ n n ~ n And g . e\en ~t the1 d ~ d ~t , \\as a s t u p d Idea because the o n h t h ~ n gthat m'lttered \vas the tax and they Inat '1s well take the mone! out and dump ~t ott the Golden Gate BI-dge, hec'luse the health department n o u l d ne\el run the kmd of guts\ program ~t n o u l d t'lke t o d o an\ good. And so I 1 1 ~ dbasiccdl~nothing to d o n ~ t h~t bec'luse shorth thereafter I n e n t to Vermont on sahbatic,il to n r l t e a statlstlcs textbook. 1'111 pleased that I n as wrong." T H E INDUSTRY C A M P A I G N As the C oal~tiollM as ge'irlng up III September 1987, the t o b x c o 111dustry n a s also mo\ lng ,~he,ldnit11 ~ t plans s t o oppose the imti,lti\e. F a r J state\\ ~ d poll e for the Tobacco b m h , Bregmm, and h l ~ i ~ l lco~iducted ~tl Inst~tute.The results u e r e not encouraging for the ~ n d u s t r ) : In pnttlng together a campaign o n an initiative, \vhether for or against it, one usually looks tor how the issuc polarizes different segments of the population. Some of these ,Ire often in the form of L~emocratsvs. Rep~~blicans. men vs. \vomcn, liherals vs. conservatives, more aftluent vs. less ,~ftluent.. . . These comrnon voting divisions d o not cxist 3s readily o n this issuc. O n most question, in the stud!- therc are few or no differences In the larger voting groups. . . . the only consistent group ' ~ p i n s tthe initiutive is that of:current smokers, who comprise just zoo state law t o collect valid signatures a m o u n t ~ n g t o 5 percent o f the number of votes cast in the last gubernatorial election (372,178 valid signatures in this instance); but a constitutional amendment initiative, which was needed t o address the Gann Limit, required signatures amounting to 8 percent of the votes cast in the last gubernatorial election, or 5c) j ,qX S valid signatures. l('.' ' Assuming a 6 5 percent validity rate, the Coalition had to collect over 915,000 raw signatures. The need for extra funds as well as additional organizational and political support to collect the additional signatures was the main reason why the Executive Committee sought to enlist the participation of the CMX and CXHHS. The C M h was clear about its price for entry: it wanted more money for medical services. Carolyn Mistin, ;l volunteer with the XLX who would play a leading role in the battles over l'roposition 99, recalled the meeting years later: " M y most vivid memory of t C M A proposed e l ~ m ~ n a t ~ n g the meetlng n7ashow shocked I was t h ~ the the Research Account completely and uslng the money for med~calservices. Since the American Lung Association includes the California Thoracic Society [a physicians' organization of lung specialists], I said, 'absoluteh not.' I couldn't belleve doctors would oppose money for b a s ~ c ined~calresearch on tobacco-related d~seases!Yes, I was na~ve." The C M X got ~ t money. s

S6

Beating the Tobacco Industry at the Polls

According to the minutes of an October 26 meeting, the Executive Committee agreed to qualify a constitutional amendment and to allocate an additional 25 percent of tax revenues toward medical services in exchange for CMA and CAHHS participation and financial assistance to the tobacco tax effort. The minutes stated that "The Coalition is relying on pledges from CMAICAHHS that between the two they can guarantee $250,000 in cash or signature equivalents and if they cannot make such guarantees in good conscience, they must tell us [the Executive Committee] so." l 3 Duane Dauner, president of CAHHS, and Fred Armstrong, president of CMA, accepted these conditions. Unbeknownst to the participants at the October 26 meeting, however, the tobacco industry had already created procedural changes to return power to the "old guard" at the CMA and to neutralize Armstrong's authority on the initiative. The CMA had no intention of producing $250,000 in cash or signatures. In fact, when he was interviewed in 1993, CMA vice president and chief lobbyist Jay Michael did not remember that the CMA had made any commitments. He said, "I was the point person. If anyone would know, I would know, and I don't remember. I'm not sure we would ever say we would bring X amount. I don't think we ever did that." l" In contrast to the CMA, CAHHS fully intended to keep its commitment and did so after finally deciding to get involved. According to Doug Hitchcock, the vice president and counsel for government relations at CAHHS, "We made a very heavy organizational commitment that we followed through on. And because we had done initiatives before, I think we brought some experience to the Coalition on ballot initiative campaigns. . . . Where hospitals were comfortable doing the signaturegathering campaign, they did signatures; where they weren't, they wrote a check, and most hospitals, as I recall, did some signature-gathering and then wrote a check for the balance of their commitment." '" The new revenue allocation was not based on the results of the February 1987 Charlton Research poll, as ACA 14 had been, but rather on political and monetary considerations within the Coalition (figure I ) . Funding for medical services was given higher priority than education and prevention. Medical services received the greatest share of revenues-45 percent-much more than the original legislative proposal of 27. j percent. The allocation for education and prevention was reduced from 47.5 percent to 20 percent. The share for research was reduced from 15 percent to j percent. (The research money was given its own ac-

Beating the Tobacco Industry at the Polls

60%

57

-----

ACA 14, May 87

v Education Environment (non-health)

Draft Initiative, June 87 . 7

.

~-

Medical care

Proposition 99

I ; , Research

m Unallocated

Figure I. Tobacco tax revenue allocations as Proposition 99 evolved. In order to attract support for the initiative, proponents moved money out of anti-tobacco education and research into medical services. ACA 14, the attempt to enact the tax through the Legislature, had more closely followed public opinion.

count so that it would not be the first money to be cut or redirected.) The allocation for nonhealth (environmental) programs was cut from 10percent to 5 percent. The 2 5 percent to be allocated by the Legislature, down from 50 percent, could be appropriated for the uses specified for the other accounts. COLLECTING THE SIGNATURES On December 4, 1987, volunteers and paid circulators began collecting signatures throughout the state. The Coalition held statewide press conferences on December I 6 to launch the petition drive, and it received extensive media coverage.16J7The tobacco industry, which had hired the Sacramento-based political consulting firm Townsend and Company to conduct its campaign activities, formed Californians Against Unfair Tax Increases (CAUTI) and immediately denounced the initiative.17 The financial status of the Coalition was extremely important to the

S8

Beating the Tobacco Industry at the Polls

success of the ongoing signature drive. Chronically short of money, the Coalition depended almost entirely on the financial contributions of its Executive Committee member~.~%ccordingto Nicholl, We tried to work the corporate self-interest angle and the medical industries. Tried to work all the professional associations, and the suppliers, and people who would benefit by more money being pumped into the service delivery end of the health care system. . . . None of it worked; it was a complete failure. . . . The only things that worked were the institutional interests that were built into the text of the initiative. That's what worked. The hospitals primarily, because they were going to get millions and millions, hundreds of millions of dollars a year. And the Cancer Society, because this was its mission statement. Lung Association, same way."

In addition, Americans for Nonsmokers' Rights (ANR), while not actively participating in the campaign, allowed the Coalition free use of its mailing list as well as access to its large network of politically oriented grassroots volunteer^.^^ The Coalition experienced several problems during its signaturegathering campaign. The start of the petition drive in the middle of December coincided with the holiday season, and bad weather during the winter months caused an initial low return in signatures. After the first month and a relatively slow start, Campaign California and its grassroots network of volunteers joined the signature-collecting effort as additional paid c i r c u l a t ~ r sOther . ~ ~ initiative campaigns, also aimed at the November 1988 election, were paying professional petitioning firms forty-five cents to seventy-five cents per signature; Masterton was paying only thirty cents to thirty-five cents per signature, which reduced the number of paid circulators working for the C ~ a l i t i o n .As ~ ' it had planned the previous September, the tobacco industry even began circulating its own petition, entitled "The Tobacco Tax Ripoff." i.22 This petition was not an official one approved by the secretary of state to qualify an industry-sponsored initiative; it was solely designed to reduce the pool of available paid circulators (by paying them as much as fifty cents per signature) and to confuse voters about the tobacco tax issue. The voluntary health agencies had an overly optimistic view of the commitment and effectiveness of their local units in gathering most of the signatures. Their inability to get signatures surprised Nethery: I anticipated that the volunteers, mainly meaning Heart and Lung and Cancer, would collect two-thirds of signatures. In reality they probably collected less than a third. What the truth of the matter was, and maybe I was naive, was that voluntary health agency volunteers are not psychologically and men-

Be'lting the Tobacco Industr! ~t the Polls

S L)

tally equipped to get involved in political campaigns. They're out to do good and be nice people, and ralse funds for other people. But they're not there to go toe to toe with anyhod!; n~hetherit be on television or whether it be in the tned~a.or anything.''

Those who had ohserved the ability of the Propositions j and 10 campaigns to gather signatures through an all-volunteer effort tailed to take into account the difference between the XNR and the voluntary health agencies. XNR had its roots in political activism. The voluntary health agencies had their roots in rnedical practice and middle-class charity. a l olvement WJS ,mumed; for the health agencies, ~t For XNR, p o l ~ t ~ clnr was often a dubious enterprise. The health agencies' ambivalence about political involvement would continue throughout the Proposition battles, including the efforts to secure implementing legislation that reflected the initiative. s of ruucli help to the s~gnature-gather~ng c,lmpaign. The ChlA w ~ not A confidentd report, dated I\/Iarch 29, 1988, and entltled "Tob,~ccoTax Initiative," summarized the weaknesses of the Coalition campaign and expressed qualms a b o ~ backing t the initiative. The author, "JM" (probably Jay Michael), reported: I . The campaign is broke, and the signature effort is slowi~lgdown, 2 . Campaign owes American Lung Association $ 2 5,000 :. Jack N~choll,the campaign director, is an ~lnknownquantity a n d G lanto-the ad man is also unknown. I f the initiative qualifies it is uncertain that this team h35 the expertise to carr!. off the campaign. 4. A mlnllnum of $ 2 n i ~ l l ~ oisn needed to conduct the most h s ~ cmlc t i use d. p ~ ~ gNobod? n. h ~ the s sl~ghrcst&a of how the inone? m ~ g h be 5. The tobacco industry hxs in its possewon the most sophisticated data attainable on w h c h to develop strateg!. and is prepared to spend \vhatever i\ necessxy to defeat the proposal. The? have bought options to retain the hest canip,iign management available. Campaign strategy is beginning to jell. 6. The proponents possess onl! f r , ~ g n ~ e n t d~ ~ r \t at,h ~ nexpertise, 110strategl and I S broke. 7. The tohacco industry is planning a "doctorlhospital bashing campaign."

r . Do we want the initiati\e to qualify?

Do we want to attempt to gain some measure o f control over the direction of the camp,~ign? 3 . Do we need to protect physicians from a doctor-hashing campaign? 4. What kvill be CMA'a financial involven~entin the c a m p a i g ~ i ? ' ~ 2.

ho

Beating the T O ~ J L C I~ldustry CI , ~ the t Polls

The ChlX proposed to \vork with CAHHS to gain some control over the campaign. It also proposed to "Meet w t h lndustry representatlr es In an attempt to circurnscr~bethe type of campaign each s ~ d eimght wage." The CMA was apparentl) contmuing to work both s ~ d e sof the fence, partlclpatlng mm~mall)in the Coal~tionwhde consultmg with the tobacco ~ndustr).W h a t e ~ e the r results of the meetings w ~ t htobacco ~ndiistry representatnes, the ~ndustryeventually appeared to pull ~ t punches s somewhat on the doctor-bashing theme once the canlpaign began. In the end, 73 percent of the signatures were gathered by paid circulators ( h 6 percent from Masterton and 7 percent from Carnpa~gnC ~ I forma), 9 percent h o m ALX, j percent from ACS, 6 percent from CAHHS, z percent from the CMA, and the rest from mad efforts and m~scellaneoussources.l' The Codit1011 collected 1,125,290 raw slgnatures by the M a ) 4, 1988, deadlme, and the lnitlatire qual~fiedfor the No\ ember 1988 election as Propos~tion99.2"

'"

LAUNCHING T H E ELECTION CAXIPAIGN O n May 2, 1988, the Coalition held a series of press events across the state when the signatures were delivered for validation.'- Some signatures were delivered in ambulances to attract press coverage. The same day, CAUTI held a press conference arguing that the tobacco tax was just another way that special interests and doctors would get richer. Even though the election was six months away, the battle promised to be long and controversial. In late April, the Coalition had comtnissioned Charlton Research to gauge puhlic opinion on the tobacco tax initiative and determine campaign themes and strategy. Support for the tobacco tax increase remained between 61 percent and h j percent before and after various arguments for and against the initiative had been presented (table I ) . The most popular argument for supporting the initiative was that r o percent of the revenues were allocated to health education and tobacco-use prevention; 82 percent of the respondents said they would be likely to support the tax for this reason. The next most popular argument was that 35 percent of the revenues \vent for people who could not afford health care; 7 2 percent reacted favosably to this argument. But when the argument was restated-that 45 percent of the money would benefit doctors and health providers-it received the highest negative reaction; 58 percent of the respondents said they would be less likely to support the tax in re-

TABLE I . STATEMENTS T O G A U G E W H E T H E R R E S P O N D E N T W O U L D BE M O R E LIKELY O R LESS LIKELY T O S U P P O R T A C I G A R E T T E TAX I N C R E A S E

More Less Likely to L~kel)to No Don't Support Support Difference Know o/ U/ Tax % Tax % '%

Statements Class~fiedas Posztwe 2 0 % of the tax revenues will pay for programs to teach children about the dangers of smoking. 45% of the tax will go toward caring for the growing number of people who cannot afford health care. Only smokers will pay this tax. 5% of the tax would go to protecting wildlife and improving and protecting parks. Smoking costs a11 of us millions of dollars each year through increased insurance pre rniurns and lost productivity, and smokers should pay more for the hidden costs of smoking. California has not received its fair share of tax revenues because it has lagged behind the rest of the nation by not raising its cigarette tax since 1967.

82

72 68 68

Statements Climified as Negutwe

A handful of special interests benefit from this initiative, particularly doctors and health pro\ iders who receive 4.5% of the funds for purposes unrelated to smoking. Experience in other states has demonstrated that such a large tax increase will lead to bootlegging and other crime problems, yet the measure provides no new money to assist law enforcement. Only 5% of the tax revenues would go to research on tobacco-related diseases. The cigarette tax is a regressive tax that hits hardest at blue-collar working men and women. This 2.50% tax increase would make California's tobacco tax one of the highest in the country.

21

24

41

29

44

Llat'l from C . F. KunJ and K . O'Dmnell. T h ,ittitides ,?id O ~ I I I I O ~ofS C,i/iforiii~I , O ~ C Y Sto!or7r(i o ciq~irrttet,ix iiirre,rsi., S.111 F r a n s ~ w o :('liariron Re\wrch, Inc., .+rd I 9 x 8 . T h l e origmally ,~ppe,lrvd111 11. I? 'rr.lynor m d 5 . .\. ( , l a n t ~ ,C.ll!forn~,l', tobacco t ~ IxI I I ~ I ~ ~Tlir IVC development : a n d p,ii,age of P I - O P O F I ~L)').I O II.~ H w l t h I ' d ~ t i ~ - s1'01. icy, , i d 1 . ' ~I 9 9 6 ; 211 3 ) : 5 4 3 - j8 j , Ileprociuced xx-~tl~ pernil\uon of the / o i i m d i ~ f H t v l t Il ~ ' o / i t ~ ~1'0/1~-1, - s ~ . i i d l,~?!r Willinm Cainpbell (K-Industr) 1 introduced a resolution urgmg the B o x d of Eclu,il~zat~on to adopt a n altern,~ti\emethod of computing the tax r x e o n t o b ~ c i oproducts, one ta~.orableto the tol ~ c c oindustry, whereby one cigarette "is the eclu~\,~lent ot one cigar, one-twentieth of a can of siluff, or oiir h0m1 o f p p e t ~ h a i c o . "The bill d ~ e dIn the Senate Rerenue and Taxation Committee, rep1 esenting a \ictor\ tor the C o a h t ~ o n . The tobacco industr\ sued t o \old P r o p o s ~ t ~ 99 o i ~after ~t passed. On J,iilu,~rv 17, 1989, Kenned) \Xrho1esalers, Inc., 1' tohacio d ~ s t r ~ b u t o r , t that P r o p o s ~ t ~ o99 n \\as ~ ~ ~ i c ~ i ~ s t i t u t iThe oilal. filed 1' I ~ w s u i claiming distrlhutor claimed that Propos~tionL)L) 1~oldtedPropos~tion13, needed a p p r m a1 b\ a t n o - t h ~ r d s ote of both houses of the legislature, restricted the appropriations polver of future legisl,~tures,burdened one class of persons with ,I t ~ that x benefited the public g e i ~ e r ~ ~where l l y n o rational relationship exists, and violated the rule that required initiatives to cover only one subject. The arguments were identical to those in the suit filed by the tobacco industry in July 1988 in their failed effort t o keep the i n tiative off the November ballot. The Coalition opposed the industry in court, and on Xlarch 17, 1989, Sacranlento Superior Court Judge Xnthony DeCristoforo denied the motion to declare Proposition unconstitutional. The ~ n d u s t r yappealed, m d the suit exentu'llly \vent to the st'lte Supreme Court, n h ~ c hIn 1991 upheld the lower court and unanimouslv rejected the cl,lim that Proposition I ; required m y ne\v tax, including

one passed by citizen initiative, t o be approved by two-thirds of the legislature. The court f o ~ ~ that n d Proposition 1 3 was designed t o limit the poLver of the legislature hut not the public's power. The court also rejected claims that the initiative violated the single subject rule.- A11 the industry's legal maneuvering, although uns~iccessful,hurt the Coalition, which had t o raise money t o pay the legal fees incurred in fighting the tohacco industry in C O N F L I C T I N G VIEWS O F H E A L T H E D U C A T I O N The wording of I'roposition c)c) creating the Health Education Account stated only th;lt funcls \ \ w e t o be availahle "for appropriation for programs for the prevention and reduction of tobacco use, primarily among children, t h r o ~ i g hschool and c o ~ m n u n i t yhealth education programs.'' N o agency was given responsibility for the Health Education program, and one of the important questions t o be addressed was h o w much money \vould go to health departnlents a n d how much would be given t o schools. A broad outline for tobacco education lvas available. At the urging of public health activists, in February 1988, prior t o the Proposition 9 9 election, Senator Diane Watson (D-Los Angeles) had introduced Senate Bill 11j j , the Tobacco Use Prevention Act, t o begin planning the implementation of Proposition 99 tobacco education progrxns. The hill required that the Department of Health Services ( D H S ) develop a program t o reduce tobacco use in California through a multifaceted approach that, tor the first time, combined mass media advertising with cornmunity-based interventions o n a large scale. John Miller, Watson's primary staffer on the bill, was particularly committed t o a n anti-smoking media campaign. Miller " ~ v a n t e dt o hire the same guys w h o sold cigarettes t o iinsell them."" The voluntary health agencies and XNR supported the bill. Proponents clearly did n o t understand the tobacco industry's well-developed strategy of working through intel-mediaries. Miller even wrote Watson, "lt does not appear that the tobacco lobby will try t o kill 2 1 j3." The tobacco industry maintained a low profile, preferring t o let the California Cllamher of Commerce, California Manufacturers' Association, and the California Taxpayers Association lead the formal opposition, :llthough the Tobacco Institute formally opposed the bill late in the legislative process. Although Governor George Deukmejian vetoed the bill after the Leg-

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islature passed it, SB z r j 3 provided health groups w ~ t han early opportunity to assert their vision of what the state's anti-tobacco education program should look like if Proposition 99 passed. Had it been signed into law, a program to implement Proposition 99 would have been in place when the initiative passed, which might have avoided the problems that arose ~vhenits proponents returned to the Legislature to seek inlplementing legislation after they passed Proposition 99 at the polls. As it \\.as, several different organizations advanced competing plans for how to spend this money after the elect~on. The XLX uanted to see the Health Education Account spent 111 accordance w ~ t hthe bas~celements of SB 213 3 but 1~71ththree changes: ( I ) ,it le'lst jo percent of the H e d t h Educat~onAccount should target students e~ghteenor xounger, ( 2 ) there should be no "sunset clause," which ended the spendmg 'luthor~tyfor the current pro\ ~sionson July I , 1999, and required further legislative action, and ( 3 ) a provision should be added to make ,~nt~-tobacco education a mmdated program, meaning that the Leg~slaturenould require local public agenciev to participate and the\ U ould receibe mone) for domg so.' L The C a l ~ f o r n Department i~~ of Educat~on(CDE) wanted to bloaden the focus of the program beyond d~rectanti-tobacco educat~on,arguing that "the same pressures and reasons which cause young people to smoke are those which cause them to use drugs and alcohol, hecome sexually active, consider suicide or adopt obsessive eating habits. The skills needed to prevent drug abuse, improve nutritional selections, abstain from sexual activities, and engage in lifelong physical activity are the same skills needed to prevent tohacco use." CDE's specific plan Ivas to have the funds administered by the new Office of Healthy Kids, Healthy California, which had been set up to concentrate health education programs ~vithinCDE. CDE wanted the money distributed in five ways: ( I ) award grants to all d ~ s t r ~ con t s an entitlement basis to 11nplement comprehensive health education programs w ~ t ha smoking prevention component, ( 2 ) make available effective smoking prevention curricula and materials, ( 3 ) provide training on implementing smoking prevention education in the context of a comprehensive health education program, ( 4 ) design and implement a media campaign for the classroom and puhlic media, and ( j )establish an advisory committee. DHS, on the other hand, proposed a program completely inside DHS, with grants going to local agencies, including schools, to implement programs for the target populations.

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The Calltornla Assoc~at~on of School Health Fducatol-s (CASHE)slygested a program that was prepared by RK Loya, e.iecutl\e secretan of CXSHE, and Alan Henderson, board member of CASHF. The program had S I X major components: ( I ) an d e p e n d e n t comrnlsslon to olersee program implen~entationwith its own staff and budget appointed by the governor, Legisiature, and CDE, ( 2 ) funding based on applications for school and agency programs run by credentialed health educators, ( 3 ) training support, ( 4 ) demonstration projects, ( 5 ) educational research, and ( 6 ) an incentive program to encourage smoke-free schools." ACS, in conjunction with CASHE, proposed that $ 3 0 million of the Health Educat~onAccount go toward funding mandator) health educat~oii.The remaining money was to fund block grants to the Count!, Off i ~ e sof Educat~onto carry out education programs. XHA recommended that at least half of the mone) go to mandating and ~mplementmgcomprehensive school health programs in puhl~cand pribate schools. The reina~nderof the money was to go to other educatlon outreach programs. XHA made no recomrnendat~onsabout program administration. " Those outside the education establishment worried that money given to schools might not be used for tobacco education, and the early proposals advanced by CDE and CASHE, the school health educators, did 111 199 j, SteIe l~ttleto allev~atethis concern. When he was ~nterv~ewed Thon~pson,who was head of the Assembly Office of Research in 1989 and a ke) agent for Speaker W~llleBrown 111 the PI-opos~tionL)L) negot~atlons, remembered that "there was a great deal of skeptlc~sin,based on preblous performance, that putting money into the school systems \\as gojng to ha\e much ~mpact."l 4 Mdler and N a j e ~ aLvere s1inilarl7i d~senchanted \ v ~ hthe CDE proposal, ad\ anced by Rohert R\an, head of the Office of Health! Kids, Healthy Cal~forn~a, and Bill White, h ~ ds e p u t ~to , put the money Into "health) kids, health) t h s , health) e~ervthmg."hI11ler recalled, "XJe kept saying, 'How are you golng to account for u hat the hell J ou're domg w t h tobacco?' And that became a real sore subject and concern of those of us who wanted to make sure that that mane\ bought tobacco control programs in school s! stems 111 Cal~forn~a." l' In submitt~ngd~tferentproposals on how to ~mplementthe Health Eduiat~onAccount, the three \oluntary health agencles were clearly not coopelating on ~mplementat~on of the ~ n i t ~ a t ~Tensions re. between the three agencles continued to budd o\er the next se\eral inonths and \\eakened their political position in the coming legislative debates.

A H O S T I L E LEGISLATIVE E N V I R O N A I E N T Proposition 99 arrived a t the Legislature with some controls in the form of specific accounts, each \vith a percentage allocation. Even so, the Legislature was still responsible for deciding \vhich agencies \vould run the programs, the forms those programs \vould take, and the allocations t o those PI-ograms.The tevt of Proposition 99 had been worded as simply as possible t o build support with the voting public. This brevity and simplicity, while keeping the initiati~,eclear for the voters, meant that the initiative was not nrritten t o w i t h s t d the special-interest lobbying and legislative manipulation that \vould greet it a t the Legislature. Five realities about the California Legislature Lvere particularly relevant t o Proposition 99. First, the tobacco industt-y \vas a major politicnl player in the Legislature. There had been n o t a x increase on tobacco for over t~ventyyears, reflecting the power of the industry and the weakness of the voluntary health g r o ~ ~ pThe s . tobacco industry had spent S21 million in its unsuccessf~ilbid t o defeat Proposition 99 and was not likely t o turn a blind eye to its implementing legislation. The industry responded to Proposition 9 9 by increasing its already substantial lobbying presence and campaign contributions t o members of the California Legislature. I11 the I 985-1986 election cycle, before Proposition 99 passed, the industry had spent only $2-4,394 o n campaign contributions and lobbying in California. In 1987- I 988, \\hen XCX I 4 (Proposition 99's legislative predecessor) was being considered by the Legislature and when l'roposition 99 passed, expenditures for industry lobbying :ind campaign contrihutions increased t o $2,818,534 (excluding the $ 2 1 million the illdustry spent trying t o defeat Proposition 99 a t the polls); in 1989-1990, when the Legislature lvas considering the legislation to implement Proposition 99, they jumped to S4,077,264.'" Second, n o health organization \\,it11 a California lobbying presence was dedicated solely t o tobacco issues, which meant that every o r g m zation lobbying for Proposition 99 programs hL1dt o consider hon- its stance on Proposition c)c) might affect its relationship Tvith the governor a n d the Legislat~ireo n other matters. T h e primary organizations with a n interest in tolx~ccocontrol (XLX, ACS, and XHX) had only a limited lobbying presence in Sacranlento, consisting of one or t\vo full-time lobb ~ i s t s ,and these organizations had not traditionally been willing t o adopt strong positions o r risk making enemies.'-.'"

T h ~ r dthe , C,il~korniaM e d ~ c a A l s s o c ~ a t ~ o( nC M X ) and the C a l i k o l n ~ ~ Assoc~ationof Hospitals m d He'llth Systems (CAHHS) \\ere powerful plavers 111 Sacrainento as 3' result of t h e ~ rlarge campalgn contribut~ons and e x t e n s ~ \ e~ n f o r m a t ~ oresources. n W h ~ l ethese organlmtlons pard 11p service to anti-tobacco activities, these activities were of minor impot-tance compared to economic issues affecting their members. The dominance of economic issues over public health issues was strirlzly illustrated by the ChlA's collaboration with the tobacco industry in T ~ S :t o pass the Napkin Deal, u i t h the attendant "tokeniziug" of support for Proposltlon 99. Fourth, w t h ~ the n Leg~slature,led by Xssel-nbl) Spealzer W ~ l l Bro\z ~ e 11 ( D - S m Franc~sco)and hts longtlme alde, Steve Thompson, there w ~ 1' s core of hheral Democrats who were comm~ttedto fundmg health c x e ior children and w h o were hkely t o see new momes as a I oute t o d o ~ n g t h ~ sl ." As ot ~ 9 8 8the , tobacco ~ndustryh ~ glven d K'1111eBrou n $ I 24,900 in camp,ugn c o n t r ~ b u t ~ o nmore s , than any other member of ,l state leglslature In the U n ~ t e dS t m s and more t h m the tobacco ~ndustrvh ~ gilen d man! members of Congress. Moreover, c o n t r ~ b u t ~ o tnos Brou n f~ or11 the mdustr? mcreased r a p ~ d l yafter P I - o p o s ~ t ~99 o n passed; by the t m e he left d $6; j,4-2 111 t o b x c o 111the l eg~slature111 1996, Brown h ~ accepted dustrj c m q m g n contr~but~ons.'"~' There was 1' natural conflue~lceof mterests between Brown, Thon~pson,the CMA ( m o t h e r r n ~ l o rsoiirce of campaign contributions to Brown), and the tobacco industry in shifting anti-tobacco education money into paying for medical services for poor children. This axis was continued after Thompson left Brown's stf~ffin r 985 to become the head of the Assemhly Office of Research. Xccording to Thompson, in 1989 he "basically was representing the position of the Speal,in the health care field, and the County Supervisors Association of California (CSAC), an organization representing California county governments, salv Proposition as a new source o f johs and money for their constituents. Governor George Deukmejian had many cash-starved programs under his administration's Health and Welfare Agency. So did the CDE, which reported to the State Superintendent of Puhlic Instruction, not the governor. The Kesearch Account initially attracted the attention of California's research universities, especially the University of Southern California, Stanford University, and the University of California, which saw it as a nelv source of money. None of these new players had any particular commitment to tobacco control.

The ptirnan challenge f x e d 13) the \oluntar\ health agencies WCIS that the tobacco educat~onprogram would be the first and largest of ~ t kind, s and no one knew a sure wa? to reduce s m o k ~ n g .In the absence of a pro\ en model, the p u h l ~ chealth groups had to argue their c a e as trk lng soinethmg new and carr) lng out the wdl of the people. t~. The I o l u n t a r ~h e d t h ngencles r e c o g ~ m e dt h e ~ rv u l n e r a b ~ l ~When he \\,IS asked about the egort to ~rnplenlentP r o p o s ~ t ~ o99, n ALA lobb y s t Ton) Najera c o n ~ n ~ e n t e d"We , were k ~ ~ l n e r a b for l e two reasons. We didn't know n h a t the heck was needed. . . . and second, we h ~ so d much money. We h ~ xcumulated d so much money before an! 'Ictlon p l x ~n a s eken looked at." l ' Thompson also recogn~zedthe ~ u l n e r a l ~ ~ l ~ t of ) the new plogranl: "There were some [ e x ~ s t ~ nprograms g] bemg defunded or not fullv funded competing ,lgunst t h ~ n g that s d ~ d n ' exlst. t So,

in a t r a d ~ t ~ o nbudgetar\ ~il context, ~ t ' snot as d~fficultto take mone) trom something that h'isn't happened m d glve ~t to something that's beng care programs w ~ t he5t~bl1shedcotlmg reduced." ''The e u ~ t ~ health stltuencles ,ilso pro\ d e d a clear rnechan~smby l f hie11 the mane\ could be spcnt. A e c o ~ d ~t~olthe g Senate Health Comm~ttee'sTohn h h l l e ~ "The , hosp~talsand the doctors and the others w h o got b ~ lump g sums of m o n q from th15 t,ix had ,I s\ stem 111 place to lust plug it III and spend ~ tI.m e m , ~t was gone \ \ ~ t h ~mmutes n of x r l r lng, because t h e ~ rd ~ s t n b u t ~ onetn n o r k was ' h e a d \ there. We d ~ d n ' thave that." ' ' The \oluntnrl health 'igencles n e t e thus '11gulng tor a new proglanl for w h ~ c hthe1 e v ele n o eustlng burea~~cr,ic\, n o proven ,~pproacl~cs, and n o constltuenc\ to defend ~t agalnst estahl~shedprogram5 u ~ t hwell-de~elopedf i n a n c ~ dand pohtlcal ~ nastructur t ~ es. The MA, d t e l extl'1ctlng '1s much n m m as poss~blefrom Propos ~ t ~ 9o 9n, h'id nall\ed 'Inar from an) t h ~ n gbut token partlclpatlon In the lnltlatire, even before ~t qual~fiedtor the b ~ l l o t .Attel P r o p o s ~ t ~ o9n9 passed, the C MA s t uck ~ o ~ l on t 1t5 own c i l ~ ~ l~or~n tn l e d ~ ~ t eAt l x a. Coalltlon nlectlng on Decemhel 28, 1988, the CMA told the other memhers plesent of ~ t Intent s to go after the entlre Unallocated Account t o tund health insurance f o ~n o r k e ~s 1% h o lacked health msurance. The Interest ot the olunt,trl health agencles In contlnulng a rel,it~ons h ~ pw t h the CZ.I?I, In splte of C hIX's ~ n c r e ~ i s ~ ndgshe r s a r ~ a actlons l tomard preLent~onp ~ o g ~ n mwould s, prore t o be c l ~ ~ ~ r a c t e rof ~ sttl ~mcr lxhar tor throughout the P r o p o c ~ t ~ o9n9 allocat~ond ~ s c u s s ~ o n A s .N R l~111'iC ~01 Iohser\ed: "I t h ~ n k[the oluntar~es]1 le\f the C h l h c o - ~ ector II h C lC1h as s o n ~ b o d rthe\ har e t o h a ~ e XI1 . three agencle5 U o l k l\ ~ t the on l5sues other t h m t o l ~ ~ ~Tchoe .~ hoards r are nl'ide up ot doctors n h o 'ire 'tlso members of the ChIX. The C hIA has tremendous clout III the Legi~lature'ind the\ see them as all~esthat the1 cannot hale a permanent r ~ f 1t ~ 1 t h.. . . the1 see the CMA as md~spensahleto n11o the) are and horn the! ha\e to no1 k . " 2 D e s p ~ t ethe CMA's tailure to delwer ~ t s promised support for the ~ n ~ t l a t ~(creatmg ve deb,ite o\er remotlng ~t horn the Coalit~onbefore the m t i a t l l e passedi and the CLfX's repeated r a d s first o n the Health Educ'lt~on Account and then on the Research Account, the I oluntar\ health agencles u o u l d clmg to the C hlX. T H E COALITIOX'S DISINTEGRATION In contrast t o ~ t cs l e x m d consistent str,ltegv durmg the tno-1 ear effort a to d e ~ e l o pand p x s P r o p o s ~ t ~ o77, n the C o a l ~ t ~ ohad n not d e eloped ~

coordinated plan to implenient Proposition 99 after the election victory. On December 15, 1988, in its first meeting after the election, the Coalition met and briefly discussed whether it should be the lead organization in securing the legislation to iniplernent Proposition 99. Jack Niclioll, who had n i m ~ g e dthe election campaign, sent J memo to the Co'il~t~on Executive Conimittee arguing that the Coalition should remain together and proposing a budget for doing so: "The Coalition is the guardian of Proposition g9 as it was written. Individual organizations will use their quite substantial lobbying resources to pursue inlplenlenting legislation. The Coalition's mission is to preserve the framework of Prop 99 which the voters passed by a margin of 58%-42%. If we don't do it, no one else tvill. . . . Our principle [sic] objective will be to generate grass roots pressure on the Governor and the I,eg~sl,iture to head off attempts to chmge the ci~rectionor intent of Proposition 99." '- Nicholl proposed a budget of $8,000 per month to insure that over $loo mill~on,I \ear w'is spent wiselt on new tobacco control programs. The Co~ilit1011 said no. Instead of rnaint,ming 1' budget and staff for the Co,llition, the Executive Committee decided t h ~ t" e x h member ,lgenc> could rely upon its own staff and resources from t h ~ spolnt on, and that a core staff fro117 key agencies (especially related to legislative activity) could provide a f o ~ u s . " ~ T hCoalition e would be a mechanism for cooperation among the individual agencies. hloney for LIII ongoing effort was an obstacle for the voluntary health agencies. According to Carolyn Martin, a volunteer with A I A who was active in the campaign to pass Proposition 99, "Money was a h g problem. The non-profit agenc~es,XCS and AI A, had spent an ,istronorn~c,il'imount of nioner on the Propos~tion99 campaign. Obviousl~,CMA and CXHHS ~ o u l d not contr~huteto this effort."'" The Coalition met to discuss issues during the legislative session, and it was listed as :l supporting organization for several bills. Rut it ceased to function as an effective body. Each organization pursued its own strategy and lobbied for its own bills with its principal legislators. On January 5, 1989, the now resourceless Coalition hosted a press conference to present ~ t Program s for a Hedth) Cdifoi-nia, which outlined its plans for disbursing funds from the various accounts of Proposition 99. The progran1 reconmlended that at least 70 percent of the Health Education Account go toward school-based programs, with grantees to include not only school districts but also clinics, communitybased organizations, locd health departments, colleges and universities, voluntary health agencies, and hospitals. The remainder of the account

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was t o be used for an O ~ e r s i g hCommittee, t w h ~ c hwould be respons~ble for program plannmg, ~mplementat~on, and evaluation, m d tor the media campaign, which would be designed t o reinforce the school-based program. The Research Account was to be a d n m ~ s t e r e dusmg the federal Natmnal lnst~tutesof Health model and kvas to d u d e h ~ o m e d ~ cal, b e h a v ~ o r d ,social, and ep~deln~ologic research. The Unallocated Account was to be used to fund ,I fire pre\ention program and other f u n d ~ n gcategorles."' The CMAmas alread! moving t o gam control ot '1s much of the money as poss~ble.The d a ~before the Coalition's press conference, ChlA executive vice president Robert H. Elsner sent a letter to Coalition chair Jim Nethery asking the Coalition to refrain from making statements about the Unallocated Xccou~lt.H e specifically urged that the press conference and the supporting materials "not include any specific recommendations or proposals for use of the u~lallocatedfunds. In the press conferences it should be made clear the Coalit~onhas not 'ldopted any policy o n spccific proposals for implcmcnting Proposition 9 9 . . . . However, if after the various proposals have been discussed by the Coalition and a consensus cannot be reached, various organizations ultimately may have to go their own way."" Nether)- and the Coalition ignored him. The press conference was the last rn'tjor coordinated effort of the C o d tion for a Healthy California as it was constituted during the election. The decision not to stay together formally with a paid staff meant that there would be no changes in the existing institutional patterns that might disrupt the existing legislative patterns related to tobacco policy making. In pal t~cular,~tmeant that there would he no lobby~ngpresence in Sacramento dedrcated solel) t o the tobacco debate or t o malntaining q 9 programs. Ken Krzer, the d ~ r e c t o rof the integrlt) of- the 1%-oposit~on DHS and a strong supporter of the Propos~tlon9 9 program, descr~bed the problem created by the lack of a un~fiedcoalition: Passage of [I'roposition c)q] really came about because everybody worked together. It \vas one of the few instances \\-here the 11e;ilth constituencies actually got together on the same team and \vorkeJ in a coordinated way. But that Coalition seemed to unravel rel,lti\-ely quickly. being superseded by selfinterest. . . . 111 the absence of a concerted pressure driving it in one direction, then it reverted back to the I.cgislature t o arbitrate the disparate viexvs of the folks w h o wanted to get more tor themselves. . . . E ~ w y b o d )in ' t l ~ cLegislae cmizwtinit~'1-md / N I L ' t h q ~7re t w e krzows ho~c:easy it is t o fwctwc' t / ~ bealtb largely them o x w tcorrt enemy i~rzdhow t/]ej8(-mcapiti7/i:r cm thnt." [rmphasis added]

K m r ~ ~ n d e r s t o othat d 1\1th each orgmlzatlon fo11o\v111g ~ t o\\ s n ~ns~der strategy in the L~egl~l~iture, consensus was g o ~ n gto be d~fficultto ,lch~e\e in ~mplemeiltmgPropos~tion99. N ~ c h o l l\vas not the on11 person \v110 felt the need for a contmulng organiz,~t~onal presence tocused o n irnplernentmg I'ropos~tion 99. In 1989 the federd Centers for D~se'lseControl and l're\ent~on In A t l a n t ~ offered to glre the C o ~ l l t ~ o$9,000 n to help w t h p u b l ~ crelat~ons, I ~ ~ I \ I tles, and the monel was e ~ e n t u a l l vg n e n t o the Western C o n s o r t ~ u mfor P u b l ~ cHealth through Lester Breslow. (The Western Consortium was a nonprofit organ~ratlont h ~ allowed t the scllools of p u b l ~ chealth In Callforma to cooperate o n g r m t s and contracts.) Breslon, 1' professor ~t UCLA, n ~ J sformer d ~ r e c t o rof health senlces and the former dean of the U ( LA School of P u h l ~ cHealth. The Western Consortium, apparently at Nethery's request, wanted t o use the money to hire Betsy Hite, w h o had recently left ACS.'j Xccording t o Nether!; w h o contin~ledto chair the Coalition, "I got a little heavy-handed. I didn't have a staff, and they put me in a position which I shouldn't have agreed to in the first place o t operating the Coalition n ~ t h o u t,I staff. And so at one p o ~ n tIn tlrne the p u h l ~ chealth people came along and offered me this money, and I was going t o use it t o hire Betsy. And I made a really dumb statement. I said, 'Now I have my lohhyist' . . . I could have thought that and it \vould have been okay. But you knmv, keep your stupid mouth shut." Other members of the Coalition did not trust Hite because they felt she put her personal views ahead of the consensus position. ALA opposed the decision to hire Hite; " ALA executive director Williams wrote a strong letter to Nether!; saying, "Surely you ~mderstandthat Betsy is thought controversial by some memhers of the Coalition. To bring her hack into the fray at this date n ~ t h o u c,ueful t preparation was I thmk msensltl\e. . . . why does the Western Consort~urnwant to h ~ r eher and then expect the C o a l ~ t ~ ot on take her o n as a partner? The three lohh\ ~ s t for s the voluntar~es,Ire morking n d ; tvhat would the d d ~ t ~ of o nBetsy contribute?" ) h In the end, H ~ t e n a , 11ot bred t o work n ~ t the h C o a l ~ t ~ oInstead, n. the Western Consord ythe effort to ~mplementP r o p o s ~ t ~ oc)c).>n tlum p r e p x e d 3 case s t ~ ~ of Nethery w,ls In the rnlnorlty 1 1 bel~evmgthat a campaign-style effort would be necess,lr\ to cee that the Legislat~~re properly mplemented I'ropos~tion 99. For most of those m,ho were ~ n \ o l v e dIn passmg Proposmon 99, the degree t o whrch the p o l ~ t ~ fight c ~ l would ~ o n t ~ n uIne the Legisl,~turecame as a surprise. Davld I angness, w h o worked for CAHHS

90

Moving to the Legislature

but represented the American Heart Association on the Coalition, commented, "The 99 Con~missionwas a little fractious at times before the election. But after the election, we didn't anticipate the necessity for long-term post-election work. And that was one of the big lessons that I learned during that campaign. And it's one of the lessons that I'm trying to transmit to the other people I'm consulting with, like the Arizona [Heart] Association. [Arizona passed a Proposition 99 clone in 1994.1 And that is: The campaign doesn't stop on election day."" When asked if she was surprised at how fast the Coalition split apart, Jennie Cook, a longtime ACS volunteer and, in 1989, immediate past chair of the board of ACS California, replied, "As soon as it was passed, we figured, 'Okay, we walk away and do something else.' What a joke! . . . We all figured that there was no more to do, it was done. It was a law. What more could we do? . . . We had spent months coming up with how we wanted the money designated and we figured that that was in the initiative, so that would make it law." 3 9 The voluntary health agencies assumed that because the voters passed Proposition 99, the Legislature would simply implement it as the voters wanted. They were wrong. T H E GOVERNOR'S BUDGET In January 1989 Governor Deukmejian issued his budget for the 19891990 fiscal year, the first budget to include the Proposition 99 revenues. He recommended that the Health Education and Research Accounts be funded in accordance with the initiative. The Health Education programs received their full zo percent-$1~5.6 million-for a new smoking prevention program administered by DHS. The Research Account received its full 5 percent-$43.9 million-for a research program administered by the University of California. The voluntary health agencies did not want to have the entire Health Education Account within DHS or have the university administer the Research Account, but the funding allocations at least followed the i n i t i a t i ~ e . ~ ~ The controversial part of the governor's budget lay in his proposal to use Proposition 99's Hospital Services and Physician Services Accounts to pay for county medical services. His budget called for a $3 58 million reduction in state revenues to fund county programs to treat the medically indigent (a General Fund obligation) and then allocated $331.3 million of Proposition 99's tobacco tax revenues back to the counties

for a supposedly new program, the California Health Indigent Program. Several individuals saw the governor's plan as supplanting already existing levels of service, a violation of the "maintenance of effort" requirement in the initiative. The governor also proposed using Proposition 99 funds to finance $ j 4 ~nillionin unavoidable state obligations, such as health care costs associated lvith caseload increases, $14 ~nillionfor various state prison programs, $18 million for capital outlay iinprovenlents in state mental hospitals, and $7 million for caseload increases in several categorical health programs. H e also proposed expanding c o n ~ m u n i t ymental health and d r ~ treatment ~g programs for female drug addicts. Some of these expenditures, such as those for prisons and for capital improvements in the state mental hospitals, were not consistent with 1'~mposition 99, which required increases in rneclical services. The governor's budget drew a n immediate negative response from the press, the Coalition members, the Legislative Analyst's Office, and memhers of the Legislature. The CMA described the governor's proposal as a "shell g a n ~ e . " ~ A' Los Angeles Times editorial labeled the Governor's action "The Rig Raid," stating, "This is not a pie for the health-care sponsorsof that successful proposition to carve up for the benefit of each and every health-care provider. It must be used t o address the priorities for which it was intended, to supplen~entand not to replace the existing resources. To do otherwise u w i l d betray the trust of the voters alzd z l l oliate tlje rule of laul" (emphasis added).4' C M X president Laurens P. White loudly protested the fact that the governor was not using Proposition 99's medical service accounts t o create, as the initiative specified, new progranis expanding the pool of funds a v d a b l e for medical services. H e enlphasized the ChlA's c o n lnitrnent t o seeing that the politicians honored the will of the voters: "We are fearful that the administration's budget planners are using the proceeds from the cigarette tax increase approved last Novernher to offset cuts made in the state's health programs. The CMA will work with rnemhers of the Prop. 99 Coalition to make sure that does not happen.

When the!' approved the tax, r~otersbelieved t h e ~were ~ i~lcreasiizgt l ~ e 1 1% must keep frrith tijith them" (emphasis a n ~ o ~ t of n t 1 1 2 0 1 1 ~ ~al~ailahle. added).ll Although the governor had honored the terms of the initiative hy fully fu~ldingthe Health Education and Research Accounts (the toppriority activities for the voluntary health agencies), the agencies \ \ w e willing to expend political capital over the supplanting issue-a priority

92

Mm lng to the LegislL~tu~-e

for the ChIX-hecause of the importance of protecting the integrity of the initiative. Kethery, chair of the Coalition, announced, "The voters will be \-ery disappointed that the bureaucrats are trying t o raid the revenues from Proposition 99. In approzling Proposition 9 9 , the zuters clearly sent a 17~ess~[ge to S~~cra?71etzto t h i ~ttl ~ e wanted y n e w money for new programs to mitigate the effects of tobacco and teach children about the dangers of sttzoking. The Coalition will work to educate the Governor a ~ l d the Legislature to make sure that the funds are spent consistent with the voter mandate to protect public health and the environment" (emphasis added).l0Nethery threatened legal action if the governor persisted in violating Proposition 99's stricture against supplanting existing programs because the "proposed budget did not comply with the letter or the spirit of Proposition 99'' and the budget would "use the new revenues created by Proposition 9 9 to replace existing county health services funding eliminated in another portion of the budget."-"' Assembly hlember Lloyd Connelly, w h o had played a major role in creating Proposition 9 9 , immediately requested a formal opinion from the Legislative Counsel (the Legislature's legal expert). H e asked, "May revenues derived from taxes imposed pursuant to Proposition 99 be used to fund existing levels of service for these purposes authorized by Proposition qc) with a four-fifths vote of the Legislature?" The Legislative Counsel's February 24 opinion concluded that the Legislature could not legally fund existing services from these revenues and said that only the voters could change l'roposition 9 9 : "Unless a n initiative statute grants the Legislature the power t o amend or repeal the statute, the Legislature may amend or repeal the statute only by another statute that becomes effective when approved hy the electors."-" Unified opposition forced the governor to back down. In the end, the governor's initial proposal may not have been a significant threat to the program because Deukmejian, unlike his successor, fellow Republican Pete W'ilson, felt bound to implement laws passed by the voters, even if he did not personally agree with them. According t o Steve Scott, political editor of the California Jo~irnal,a widely respected nonpartisan monthly on California politics, "Deukmejian had a n interesting attitude about initiatives. H e got involved a lot in initiative campaigns. In fact, his staff \vould sort of get on him for getting involved . . . 17ut by and large, his attitude was if the voters passed it, then the obligation of his administration was to implement it t o the best extent possible. And so basically what I've been told recently is that Deukmejian pretty much let Kizer (director of DHS] d o it his way."44

Moving to the Legislature

L) 3

The first challenge to the Integrity of Proposition 99 was thwarted, protecting 'in important pr~nciplefor the CMA and other medlcal servlce providers. Unfortunately, the CMA w o ~ l l dnot reclprocate and work w ~ t h equal vigor t o protect the Health Educat~onand Resexch Accounts.

T H E TOBACCO INDUSTRY'S LEGISLATIVE STRATEGIES O n January 17, 1989, the tobacco industry and its consultants met to discuss their short- and long-term strategies for dealing with Proposition 99. For the short term, they hired Sacranlento lobbyist ICathleen Snodgrass as the lead "offensive" lobbyist and Paul Kiilney froin X-I< hssociates as the lead "defensive" lobbyist. They hired Nielsen, Merksamer, the law firm that had done the industry's political legal work in Cdifornia at least since Proposition 5 , to analyze the budget for the industry and to serve as political c o n s ~ d t a n t s . ~ 3 t e vMerksarner e was a former chief of staff to Governor Deukinejian and helped put together the Napkin Deal.'"ack Kelly, the Tobacco Institute's regional vice president in Sacramento, was t o coordinate these efforts, working with the company representatives. For the tobacco industry, the "inajor trouble spots" of the governor's budget were the anti-smoking health education program of $17 j . 5 million and the University of California research grants of $43.9 million.-" The strategy for the Research Account was t o limit it: "We believe that appropriate language confining the $43.9 million t o hard resexch would make this item acceptable."-" The Health Education Account was a gre'iter concern: "Our efforts will have to be very concentrated in this area. The defensive lobbymg program wdl concentrate on the defeat of the dozens of bills that have been or will be introduced t o reallocate the Proposition 99 n~oniest o areas unacceptable to our i n t e r e ~ t s . " ~ ~ The long-term strategy was t o gut Proposition 99 entirely by putting the revenue into the General Fund and eliminating Proposition 99's requireinents that money be spent on anti-tobacco activities. This strategy would he implemented by participation in the Gann Coalition, which was forimng to consider modifying some of the state spending rules: The long term strategy was developed by our political consultants for two purposes. One purpose was to make the industry "players" in a coalition crcated to restructure the method of state government finances through an initiative. The discussion motivating such a coalition involves possible repeal or modification of the Gann spending limit, thc constraints on the budget process imposed by Proposition q 8 [which required that '1 specified fraction of

state revenues be spent o n education], and other constraints such as entitlement programs and a ~ ~ t o n i acost t ~ c ot living adjustments. The second purpose was t o develop possihle goals t o mitigate the impact of Proposition 9 9 o n the industry and t o strengthen the industry against t'ntnre excise t ~ increases. x O n r consr~lt~zizt J X ~ e l s e nM, ~ r k ~ m rbte~l i /i ' ~ mit is possiblc t o firrl~iorr stlutegy m d L111 i171/1/t~171e12t~ztio12 p l m ( I C S I ~ CtoL nholish ~ P r o p ~ s i t ~ o99n c'zrI ~ L I I . / : I I I ~h!' p1~zcirrgthe ;no)~ics 111 t l ~ gencr,rl r f i l ~ r t f irrstcnd of thi?slx specid fZ41lils. . . . In order tor the tobacco industry to be part of this process, which is essential if \ve ,Ire to c a p i t ~ l i z eo n this opport~mit\;we must be able to offer to the other leaders of the coalition our resources, nxnely leadership, strategy, and money. In turn we would want from the coAition a c h m g e in the Ialv t o abolish earmarking of e ~ c i s etaxes and t o direct 311 revenues into the generd fu~iit. We would also strile to change the 1,11v making it more difficult t o raise excise taxes by the initiative process andlor a co~nmitinentfrom orrr coillition partners (doctors rznd 1)ospitirlti not to sponsor or support m y further increase in excise taxes. AIajor players in the coalition are the l~ealtlicare industry the California Chamber of Conimerce, the (:al~fosnia Taxpayers Lissociation, public employee group\, and Paul G m n . . . . The coizlitron will b ~ l pstrengthen O Z ~ Ttres zvith Iiinrzj8groups i n c l ~ t d ~ n g the /Jt'd/th i(1l.c indrfstr~', and lt I L ' I / / SO r e ~ l ~ lt '~eh i l ~ from c o ~ / J P~nil;ol.tt1~get r d p . . . . This second strateg) ot d e ~ e l o p i n g'1 permanent c o ~ ~ l i t i o\vill n be much more visible t h m the first strxeg). ~ v h i c his aimed a t abolishing Proposit ~ o n9 9 earmarking ,lnd sending the t o l ~ c c otax revenue frotn Proposition 99 t o the general fund. Tbc first stratcg!' c.len./y I ~ z st o ri3n~'7zn .zn in~,isiblcone.4i (emphasis different from original l

Bv Februan

21, 1989,

the St'lte Actir ~ t ~ Dlr e s ~ s ~ ot o nthe Tob'icco In7 oposal, together n ~ t ha destitute h i d issued ~ t PI s o l e ~ tC n l r f o ~ n l ~PI t a ~ l e dbudget, amonntmg to $61 ~ , o o ooil top of the ~ n s t i t u t e 'ewsting ~ lohbving budget tor C,~l~forni,l. Of t h ~ smone), $5-+j,ooo w ~ to s pay Nielsen, Merksaner to analr ze the budget, t o \I orL tos d ~ v e r s ~ oofn mt1t o b ~ c c ofunds to other purposes, 'ind t o stiengthen tles n l t h the CAlA, CAHHS, and other heslth cdre interests 111 ordel t o budd a coal~tionthat would lestructure s t x e fimnces In s rt7ar that n o u l d eliminate Proposlt ~ o n99's e'lrtnsrbed inoner for tohacco control p r o g r ~ r n s . ~ ~ The report md!zed the go~ei-nor'sbudget to deterrn~ne hat mere "acceptable" and "uil,icceptahle" uses of the Proposition 99 rereilues: The Anti-Smol visihle, ancl hopefully popular antitobacco psogran. . . . W7eresolved to make financial a n d progralnmatic concessions when we had to (we had more than enough money) m d to associ~te ourselves w t h powerful triends such as the ChM, the counties, and \)llestern Center. \Y'e did not know the full extent of their duplicity during the first f e n !,e,lrs, but lve did knolv their support of Prop c)q was opportunistic and \VC 1rel-e x a r e they would pursue their own narrow interests if events evolved in such a direction." T h e y completely discounted their ability t o m o u n t an eifective puhlic campaign directed a t t h e Legislature, a b a n d o n i n g their- m o s t po\verful weapon, p u b l ~ co p i n ~ o n . At the e n d of June, t h e C o a l ~ t i o nh a d re'iched m ,lgreement \\-1t11 Sena-

ro6

Proposition 99's First Implementing Legislation

tor Keene and his competing hill, SB 1392." Under this agreement, funding would be evenly divided among local county-based anti-smokingprogi-ams, school-based anti-smoking programs, and state-run competitive grants. hloney would also be used for an anti-tobacco media campaign. Thus, SB 1099 n o ~ vincluded assurances that local jurisdictions would receive a share of the Proposition 93 funds.14 According to the June ;o, 1989, minutes of a meeting held by the Coalition, the negotiations with the SEIU and health officers resulted in the following allocatioils: 10 percent of the available funds in the Health Education Account ($12 million) for media, 30 percent ( S 3 6 million) to schools through CDE on a n entitlement basis, ;o percent ($36 million) to state grants through DHS, and ;o percent ( $ 3 6 million) to local health departments on a n entitlement basis. This meant that ()\,er half of the money Ivas going to the county level on a noncompetitive basis, which the voluntaries had been trying t o avoid because they Lvorried that it n,ould disappear into local school and health department budgets. The!- believed that a centrally run program conforming to state standards would he stronger and more likely t o actually reduce tobacco use. Sending some of the money to the counties Lvas seen as a \vny to stop SB 1392 and to make the counties happy but not necessarily as a route to strong programming." This ambivalence about the value of the local programs was t o contin~iein subsequent versions of the Proposition implementing legislation. The pressure was also hea\-y to include some funding for CHDP from the Health Education Account, along the lines that Niclsen, Pvlerksamer had suggested to the Tohacco Institute se\,en months earlier, in December 1988.- From a political standpoint, CHDP was popular lvith several legislators, key lobbyists, including SEIU a n d the V17estern Center for Law and Poverty, and the administration. Funding for CHDP directed additional funds to the counties, which also pleased them. Steve Thonlpson \vas an important player in the decision to move Health Education Account money into CHDP." In return for the Coalition's support of CHDP, the administration agreed to support SB 1099 and to include antitobacco education in the CHDP screening intervien.. According t o Carol!-~~hlartin, a volunteer \\rho represented ,\LA on the Coalition, "DHS was to meet with the voluntaries t o develop the anti-tobacco education component of CHDP. That never happened. Instead, the!- just added three questions about smoking t o the screening interview. That \vas DHS's idea of an 'effective tobacco education program.' Ha!" l 6 Rather than making a strong public argument that spending Health Education Account money on C H D P violated the intent of the voters, as

Proposition 99's First Implementing Legislation

107

they had done when Governor Deukmejian proposed using the medical service accounts to supplant funding for local medical programs, the Coalition agreed to divert some money from the Health Education Account to CHDP. In a June 26 memo, Miller told Watson, "If the administration wanted to steal some of the Education funds for themselves, and were willing to let us establish good programs in return, we would let them steal a little (say 20 or 25 million). Anything we can do to reduce the block-grant structure of the program is also welcome."" O n June 30, with the American Heart Association abstaining, the Coalition passed a motion to go along with the diversions: "The Coalition supports funding for CHDP, $20 million for year one and $20 million for year two [of the two years that AB 75 covered], from the reserve account [in the Health Education Account]. These funds are to be used exclusively for anti-tobacco education. The program will be subject to standard accounting and evaluation procedures. There will be a two year sunset." l " The decision to divert funds from Health Education to medical services through CHDP established a precedent for deviating from the will of the voters as well as for funding medical services from the Health Education Account. As Isenberg observed, "This support would haunt them in years to come." l 9 Giving up $39.1 million for CHDP (out of $271.9 million appropriated from the Health Education Account over two years) in exchange for getting a decent bill, viewed from a Sacramento insider's perspective, was a reasonable and appropriate action. From the standpoint of mobilizing public support to protect the anti-tobacco programs, it was not. To protect the anti-tobacco programs mandated by Proposition 9 9 , public health advocates could have framed the issue for the public simply as "following the will of the voters." By agreeing to diversions, the voluntaries surrendered the "voter mandate" rationale, clearing the way for medical groups and others to frame the fight over Proposition 99 revenues as sick children versus health education or as just another fight over money among Sacramento special-interest groups. The health groups lost the moral high ground. Moreover, the fact that the Coalition agreed to funding medical services from the Health Education Account demonstrated to the CMA, the tobacco industry, and others that they did not have to pass a new initiative to move Health Education Account money from "unacceptable" tobacco control to "acceptable" medical services; they could negotiate it. The die was cast.

108

Proposition 99's First Implementing Legislation

PROJECT 90 While the Coalition spent most of 1989 concentrating on convincing the Legislature to use Proposition 99 funds to establish effective tobacco control programs, the tobacco industry continued to push its long-term strategy of passing a new initiative that would eliminate the Health Education Account. This strategy, articulated in secret plans the previous February as the Project California Proposal (discussed in Chapter j)," involved providing financial, legal, and political support for a coalition of medical, labor, and business groups that were seeking to amend the Gann Limit and change the way the state finances were managed. While staying out of the limelight, the tobacco industry had budgeted $330,000 for Nielsen, Merksamer "to represent industry in coalition, lobby coalition members, draft legislation/initiatives, prepare background materials." 20 The original effort, known as the Gann Limit Coalition, had been renamed the Project 90 Coalition. Steve Merksamer, who had helped facilitate the Napkin Deal, was the principal advocate behind the redirection of funds. David Townsend, who ran the campaign against Proposition 99 for the tobacco industry, was hired to conduct the campaign for Project 90. Jeff Raimundo, who worked on the campaign against Proposition 99, was the spokesman for the Project 90 C o a l i t i ~ n . ~ ' . "The , ~ ~industry's support was explicitly tied to using the planned initiative "to eliminate earmarking of dedicated Prop 99 revenues." 20 While Project 90 stayed in the shadows and its tobacco ties remained unknown until mid-June, the Coalition started to get wind of its activities earlier. On May 17, 1989, the ALA's executive director, George Wilhams, commented, "We were told at a coalition meeting that the CMA is working on an initiative that would divert all Prop 99 money, except research, to a fund to provide health insurance for uninsured workers. As a side note, it's interesting that CMA has the money to do this, but not to support Prop 99-so much for friend^."^' Assembly Member Lloyd Connelly, writing to the California Taxpayers' Association, a participant in Project 90, on behalf of Assembly Member Tom Hayden (D-Santa Monica), ACS, ALA, AHA, and the Planning and Conservation League, reported, While we are in agreement with the basic thrust of Propect [sic]90, we view with concern reports that Project 9 0 is contemplating including amendments to the allocation and purpose sections of Proposition 99. . . . Before taking any irrevocable action impacting the purposes and integrity of Proposition qq, and the prospects of the Project 90 initiative succeeding, we ask that you con-

Proposition 99's First Implementing Legislation sult with all the members of the Coalition for a Healthy California. It would be unfortunate if the Project 90 initiative does not have the broadest possible coalition supporting it. An initiative that amends Proposition 99 inconsistent with its purposes will have the active opposition of the below signatories, including the signing of the opposition ballot argument and conducting a free media campaign.>'

This letter did not deter the backers of Project 90. One of the Coalition's members, the CMA, was not a signatory to the Coalition's letter and was part of Project 90 in order to secure additional funding for health care, which the CMA intended to get by revising Proposition 99. The CMA's specific proposal was to give 5 percent to Research, 7. j percent to Public Resources, 3 5 percent to Hospital Services, 10 percent to Physician Services, and 42.5 percent to a new account for "uncompensated health care services, preventive health care services, health education, or the state's subsidy of a health insurance program for the medically uninsured." l hThe CMA would have ended the requirement that any money be spent on anti-tobacco education. The CMA knew it was serving the tobacco industry's interests by pursuing the initiative. O n June 27, 1989, Jack Light, a CMA staffer, wrote an internal memo reporting that "the tobacco industry initiated this request to eliminate education and they did it because they realize that a massive educational campaign is the most effective deterrent to smoking there is." On June I g, Sacvnmento Bee political columnist Dan Walters exposed the connections between the CMA, the tobacco industry, and Project go in a column entitled "A Lousy Way to Make Policy." The Project 9 0 executive committee is to meet this week to make final decisions on the content of the initiative. And one of those decisions will be whether to accept a quarter-million dollar commitment of campaign funds from the tobacco industry in return for placing in the initiative a significant change in Proposition 99, the cigarette tax initiative approved by voters last year. One portion of Proposition 99, which boosted taxes on cigarettes by 2 j cents a pack, requires funds, currently $120 million, to be spent on a massive anti-smoking educational program among California school children and the larger public. The tobacco industry wants that provision to be axed. It wants to trade the quarter-million-dollar commitment (plus a promise of more later) for a provision to remove all funds from the anti-smoking program and shift them to general health care programs. The move has the support of some medical provider groups such as the California Medical Association, but not such public health groups as the American Cancer So~iety.~'

O n J u n e 2 9 , W,dters' n e x t c o l u m n o n Project 90 '~ppe,lred, e n t ~ t l e d"X S m o k l F&t over I n ~ t ~ a t i \ e . " K'hile Project yo leaders, most of \vhom come from business groups. agreed to the tobacco industry deal as a means of ohtaining badly needed c,~mpaign funds, it cre,~reda hig split among health groups, pitting the doctors and other professional providers against volunteer anti-smoking o r g a n i ~ ~ ~ t i o.n.s.. The ni'ltter came to a head this week during what sources described as 311 acrimonious, two-110~1stelephonic meerlng of CXIA's executive board. The Board n.ns deeply divided m e r the issue and findly settled o n a strangely \vordcd statement that is to he submitted to the ChIX's governing council neyt month. While the statement says C h l A "disassociates itself" from attempts to eliminate anti-smoking education money m d rcafisms the organizxion's commitment to 1' smoke-free environment, it also implies t h t it i o ~ ~not l d be held responsible tor what others might do, including the shift of '~nti-smoking funds into a broader substance-abuse program andtor direct he,~lthcarc. In effect, the CLlX seems to he washing its h,lnds of the deal \vhilc le'lving open the possibility that its members could profit from it." T h e coluinn t r ~ g g e r e da firestorm of protest f r o m t h e p ~ i h l i ch e ~ l t h groups, p x t ~ c ~ ~ l xt hl e! XLX and XCS. T h e initiative proposed hy Project 90 \vould b o t h revise t h e G a n n speilding limit and raise the gas t a x . T h e intent of the supporting organizations w a s t o free state re\,enues for spending o n a variet!. of p ~ i h l i cp r o g r a m s a n d t o allo\v gas taxes t o be rflised for transportation iniprovements. Although Prolect 90 \ \ a s dlrected t o w a r d putting the proposed inltlclti\e o n the ballot t h r o u g h l e g ~ i l a t n ea c t ~ o n ~t , n x deerned unlikeh t h a t t h e Legislature u o u l d pass ~ t me,Ining , t h ~ at signature d~ \\ould be n e c e s w r l . T h ~ me,lnt s t h a t m e m b e ~s o t the c'mpC1ign executlLe c o m mittee, k n o w n a s T:ixpa)-ers for Efiective Government, each h a d t o c o n tribute $loo,ooo for the c a m p a i g t ~ . ~ T T ht oeb a c c o industry h a d agreed t o p r o i i d e $Z~O,OOOt o t h e effort it t h e initiative also included language stripping the H e a l t h Education Account of money." T h e CMX initially confirmed its relationship with t h e tohacco industry. According t o a story in t h e Satjta Mmia Times, The hledical Xssocixion's spokesmm confirmed last \\reek that deals have heen m d e at the C,lpitol hetween doctors m d the tohncco industry. "Yeah, it's true, but the n-osld i\ not hlack a n d n.hite," s,~idChuck LlcFadden. communications director for the association. "\Ye \voulil like it to be morally pure a n d hlack anit n.hite. Unfortunately you h'lve to engage in trade-offs to enact good public policy. That does not, hy an), stretch ot the im'lgination, p ~ us~ int hrd with the tohacco companies."':

Propj5ition 99's First Implementing l.egislat~on

111

With or w l t h o ~Project ~t 90, however, the ChIA stood by ~ t Intentsons s to red~rectthe money from the He'ilth Educat~onAccount. In a July r 4 letter to a rneinber of the Leg~slaturerespondmg t o a ne\zs artlcle c l - I ~ I cal of the C hIA's actlons, C h l A president Vl~illiamPlested I11 M rote, Ad130c.,ites o i d e ~ d o p ~ r z~igstrougei. p~~hlicl?' oprvatcd d r h ~ ' i . ysystem (?.g. tree cliuic-S,c-o~r?~t>' hospitnls, ctc-.) '111 o t t h t ~t o l ~ c c ~ t o~ I .xC L , C I I L ~ Pcm11ze' o i t h n t s!'stcru. C:,\lX and other lllittetf t"i+ d17d / ) ~ v ' I ~ z ~ It oz ct l~~>stfppo1.t health providers \v:~nt the 5hort-term commitment t o go to\vard temporary programs 50 that the long-term uses \vill go to\vard reform of the existing c m ployer-based health insurance deliver!- system. 1 d o not claim that the C l l A is motivated by higlier moral purpose5 than any of the other interested parties \v110 are fighting for this mane!- like inck,lls over ,l carcass. We have, holvever, unlike the others, openly presented our priorities and articulated our rationale tor those prioriticc."' lemplinsis a d d e d I L J L ~ I I ~

O n July 12, the CMA's position o n AB 75, the implementing leg~slation for Proposition yy, \vas to oppose it unless it was amended to rnoIrc the funds in the Unallocated Account into a Physician Services Fund to pa!. for uncompensated physician service^.^^' On July 21, the CMA COLIIIcil adopted its general policy for Proposition 9 9 implementation, which had three chief features. First, the ChlA wa~itedall health care money from Proposition L)L) t o go to a health care insurance program for the \vorking uninsured and their dependents. Second, the C M A opposed any legislation that did not make funds available t o all physicians for a p o r tion of their uncompensated services. Third, the C h l A supported using the Unallocated Account for physicians w h o treated patients ~ v i t hemergency conditions.'' While the council reaffirmed its "rota1 dedication for achieving a tobacco free California by year 2000" and emphasized that "CMA \vill not participate in any activities which might compromise that goal," '' ChlA's actions regarding the Health Ed~lcationAccount sl~ouldnot have reassured the voluntary agencies and other defenders of the Health Education Account. There kvas n o promise to support the 20 percent allocation for health education. The voluntmes went hack t o the p ~ ~ b lto i c defeat the l'roposlt~on yc) proposal advanced by the Prolect 90 C ~ ~ i l i t l o They n. o r g a n m d staten ~ d press e conference5 in S x r a m e n t o and Los Angeles." The press conferences, 1% hlch rece~vedwdespread media coverage, art~culatedthe voluntaries' point of vie\v, including a threat o n their part t o sue if the health education programs did not receive full funding. They encouraged their volu~lteerst o drop their C h t A n~emberships.';~'-'On X u g ~ ~ 21 s t ph)sicians Lowell Irwin and Donald Beerline, the president and president-

elect of ACS, wrote their volunteers urging them t o write to Plested with a request to respect the integrity of Proposition 99." Project 90's threat t o the Health Education Account dissipated under the glare of public attention, again demonstrating the po\ver of public sentiment and attention in overcoming the pon7er of the vested interests w h o had controlled tobacco policy making in Sacramento. On August 29. the CMA's vice president for government affairs, Jay Michael, tried to distance Project 90 from the tobacco industry: "The Tobacco Itzstitute never offered to contribute S z ~ o , o o oor any other amount to a campaign to redirect the anti-smoking revenue from Proposition 99. Various companies associated xvith o r owned hy tohacco companies had . . . offered to contribute money t o . . . Project 90. . . . Tobacco o u w d companies (not tohacco o r cigarette manufacturers, per se) indicated a willingness to contribute $2 ~ O , O O'or O more' t o the overall campaign" (emphasis in original).'" To health groups, this was a distinction without a difference. When the Legislature and the governor reached a n agreement on revising the Gann Limit, the entire Project 9 0 effort lost momentum. T H E BATTLE OVER THE MEDIA C A M P A I G N By A u g ~ ~24, s t the Conference Committee had made its report available. The Coalition seemed satisfied with the result regarding the Health Education Account. An internal ACS memo concluded that the recommendation was "quite close t o the agreement reached by the Coalition and other parties in the form of amendments to SB 1099." At this point, the revenue was divided into one-time and ongoing expenditures. Onetime expenditures included $I j n~illionin reserves, $30 million in c o n petitive grants, and $11million in ~ ~ n a l l o c a t efunds. d Ongoing expenditures were broken down into state programs and local programs. State programs included $3 million for oversight and data collection a n d analysis, $ I S million for the media campaign, $20 n d l i o n for CHDP screening, and $12 million for competitive grants. Local programs included $3 6 million for school-aged populations and $; 6 million for highrisk populations. At Miller's request, the Coalition members reaffirmed their support for SB 1099 as it existed o n August 1 8 , 1 9 8 9 . Miller had asked the Conference Committee to incorporate the substance of SB 1099 into the AB 7 j package and reported that SB 1099 would not have a separate hearing. At that point the Coalition decided that a single bill should cover

'-

appropriations from the Health Education Account and the medical service accounts; tobacco interests and the CMA would presumably have more ditficulty killing the anti-tobacco education program if it were part of a larger hill that included the appropriations for the medical services accounts.'Wcco~-dingto Miller, "We wanted to make it so that they couldn't have all that money for their clinics and their hospitals unless they voted for health education as well." ' l The media campaign was the main bone of contention; hliller expected the industry to try to kill it. Steve Scott, political editor of the California Joti~rzal,observed that the media program "was the main issue hecause . . . it was that component that bothered them [the tobacco industry] the most. I mean the tax was the tax, there was nothing they could do about it, but the notion that Californians would be educated and that there would be a specific media component to it Tvas what terrified them."'" As Miller and Scott expected, in September, after AB 7 j had moved out of the Conference Committee, the tohacco industry emerged from the shadows and launched an all-out lobhying blitz to kill the anti-tobacco media campaign. During the final days of the Conference Committee, tohacco industry contract lobbyists saturated legi~lators."~"~~' On September I 3 Assernbly hlembers Bronzan and Isenberg and Senators Keene and Rosenthal sent an alert to their fellow mernbers warning them that twenty-five lohhyists had heen hired by the tobacco industry to try to kill the provisions authorizing the anti-smoking television ads.4' Miller recalled the dramatic standoff inside the Conference Committee: The blitz of lobbying was awesome-the tohacco industry brought in the "first team" from Washington, D.C., and New York. They literally hired clcry contr,lct lohbyist around. They would hire a lobbyist just to win one vote. Judge Garibaldi, then the preeminent contract lobbyist, told Senator Watson the industry offered him a blank check-he could fill in any a111o~11lt he w~shed, just to add his clout to the contest. Prior t o a d o p t ~ o ~ozt the C'onferet~ceComn~itteereport, the nidtistr)' 1 1 d brought hrgI1 presszlre oiz the six nlenlbers to target '111 tohac-c.o edtrcation to ~ ' 0 ~ 4 tThey h . clearly had the Republican memhers, a d were about to win some of the Democrats (and destroy health education). Before a vote could be taken, however, Phi1 lsenberg and Bruce Bronzan stood up from the tnhle, stepped to the front of the room, and publicly refused to have anything further to do with the conference. Both nlen shamed their colletzgwr, I s c ~ ~ h e r g described the y m t h proposal as o m of the cl~eapesttricks he h ~ t~~itrwssed. d The deinonstratior~b)' both nlen ~ f f e c t l ~ killed ~ ~ / y the " y o ~ z t /only" ~ cffort a1111 asslired d o p t i o n ~f a legltnntztc Imrlth edtrcdtion prijposal. l [emphasis added]

\X'hen the bill moved t o the Xssemb1~-floor, tobacco lobbyists were lined u p three and four deep along the public railing oiltside the Assembly chamber, sending messages in t o legislators and talking t o them as they went into the c h a n ~ h e r . M ~ ;a r y Adaim, the XCS lohhyist a t the time, noted, "The tobacco industr!. was handing o u t $ro,ooo checks t o any and every lobbyist it could find \vho would work o n the issue. It m-as a hoot t o see w h o \vas at the railing! They would have hired 111)-cat if she had been a registered lobbyist! " N The industry was successful in reaching some legislators, most notably Senator M a d d y and Speaker Brown, both of \\.horn q ~ ~ e s t i o n ethe d value of using Health Education Account money for a massive and untested media campaign.'" Fortunately for public health aclvocates, the tobacco industry went too far and generated a hacklash among many legislators. In Bronzan's words, the lohhying campaign became "so gross and so obvious that it becomes dangerous for [lanmakers] t o associate themselves ivith it."-" The health advocates alerted the media t o the tobacco industry's lobbying tactics. W'alters summed u p the effort in his SLlclurnetltoBee column: "The tobacconists may have made a tactical error. Their heavy-handed push drew attention from ne\vs media, which put the politicians o n the spot and, in the end, they abandoned the drive and the a d money ren ~ a i n e d . "Viralters ~~ declared the industry's defeat a public victory over narroiver interests. 9 still saw implementing the voter mandate as a priIn ~ 9 8 politicians ority. The industry had put itself in the limelight ~ v i t ha too-obvious lobbying effort. Once again, outside attention had \vorl-elementary school level doesn't s p e A English. So we've , got t h ~ problem. t And then you h ~ v the e funding crisis on top of t h , ~ t we're trying t o d o it with less and less mci less d o l l x i . "

In this d~fficultc l ~ ~ n a tPropos~tlon e, 99's nerz inone! n7as \ ~ e m e dbr the schools 1' s a mar to solle some of t h e ~ rpresslng problems. At approxmatel) the same t m e that P r o p o s ~ t ~ o9 n9 U ~ passed, S the C a l ~ f o r n ~school a supermtendents \vere w o r k ~ n gto establ~sha regional sti ucture to pro! ~ d the e school d ~ s t r ~ cnt s~ t health h expertise. At the state d establ~sheda pro gran^ and an a d m ~ n ~ s t r a t ~ \ e level, CDE h ~ dread! unit called Hecdthr K ~ d s ,Health! Californ~a,w h ~ c h\\as responsible for carrying out health and drug-related programs. CDE decided t o use the Healthy Kids Regional Centers to implement Proposition 99. CDE pooled the Proposition 99 mo~lieswith two other funding sources to

Implement~ngthe Tobacco Control Program

139

Lre'tte the Drug, Alcohol, 'lnd Tobacco Education (DATE)program. CDF I-equ~red e x h count) office to hare J Tobacco Use P r e ~ e n t i o nFduc,1t1on (TUPE) c o o r d ~ n ~ t om r , d generally this person 1x7~1salso respons~blefor the d t u g m d alcohol programs and, in smaller counties, other categorlcal progrmis as well, m c l u d ~ n gsome that were not health program\. According to Katliv Yeates, w h o was the actmg dlrectol- of the Office ot Health\ Kids, H e , ~ l t h jC ' l l ~ f o r n ~in a 1994, schools \+ere not reall) committed t o domg much nhout t o h x c o for 1' \arletv of re,~sons: There was n o commitment t o it. It Lvas like one more thing, given reading p r o g r m ~m s d bilingual and all the pressing problems-the obvious problems. ''Xah, some kids smoke, hut w h o cares. You know, smoking. Big deal. . . . It's the least of our discipline prohlenis right nonr. We've got kids fighting ~ v i t h gun\: tolx~cco,that'\ ju\t a passive prohlem. It'\ not a \ active 3s fighting or somcrhing like that." X lot of school folks smoke and it was just too controversial with unions and whatever. So schools really didn't want t o take it on. In additloll to everybody having somrone that's an alcoholic, everyhod! 's got somehod), in their families that smokes. And people on staff. . . . So they kind of tiptoed around it and didn't \ v m t to take it on. D ~ d n ' tsee it 2s a problem . . . as long as they weren't srnoklng in their clascroonis, w h o cares what they do? . . . I m e a n like "Oh yeah, bad drugs," but you know that's not rhr biggest problem. ''

This attitude, coupled with the risk and protective factors model, provided schools with an opportunity to spend their Proposition 99 monies creatively. For schools, a program that addresses the problems that educators consider most pressing was much more appealing than taking o n tobacco directly. From this perspective, if school failure is a n underlying cause of: tobacco use, then tobacco money could he spent on just about anything that would improve the schools. The method used to distribute funds added t o the prohlem. In contrast to the critical mass of funding created in the health departments, money \vent to the county offices of education a n d the school districts h:ised on average daily student attendance. Once the money WIS spread over 1,003 districts, fifty-eight county offices, and ten regional centers, the amounts could be quite small. Some of: the small districts I-eceived under $500, h;~rdlyenough t o create a n identifiable presence for tobacco control. B!. contrast, even the sinallest county health department received $ r 50,000. With a lack of commitment to Proposition 99 at the top, ina d e q ~ ~ a programming, te and sometimes snlall amounts of money, it is not surprising that schools saw themselves as the recipients of a categorical funding stream, driven by entitlements, which they could try to use

T4o

Iniplementlng the Tobacco Control Program

for the doininant priorities of the schools. And tobacco, especially at first, was not a particularly high priority for schools. The poor condition of health education generally in California, due t o years of Proposit~onI j -inspired budget cuts, created further problems for implementing meaningful tobacco prevention programs in the schools. (Increasing numbers of districts were cutting back or eliminating their school nurses at that time.) As one TUPE coordinator said, "All of this money has been flowing t o schools with the assumption that these was an infrastructure in place for health education." '-'The infrastructure to absorb this illone) and use ~teffectiveh sinlph did not exist. There 1s n o high scl~oolgraduation requirement for health education in California, and there is a very minimal requirement for health education in teacher credentialing. One of the county TUPE coordinators explained how the lack of infrastructure in schools set them up for failure, not just in tohacco programs but other health programs as well: There wasn't a n intrastructure there t o accept the money. X lot of us were afraid that all this nioney was coming donm and it Lvas going t o be misused because there wasn't anybody in place. This is kind of a Catch-zz, it's a chicken-egg thing. We've got the money but nobody in place, so then we put the money in, Lve say, "I-ook, it's tailing, it isn't ~vorking.. . ." This is the t) pical thing that's happened in health education in many instances where the person \v110 cnds up teaching it at the high school is the person who's 011 their last leg. "VC7e don't knon- what t o d o with Charlie s o rve'll have him teach health." ''

The $ 3 6 rnrllion t h ~ schools t were gixen each >ear during the t\vo \ears of AB 75 would ha\ e been a substantial ~ncrementt o an existmg backbone for the dell1 er) o f health messages In the schools had ~texisted. A coherent ~ p p r o ~ to c htobacco e d ~ i c ~ t i olnn the schools was further undermined by the absence of training, materials, or expertise in tobacco use prevention. This lack of materials reinforced the tendency of the schools to teach health as "body systems." There u7as little in the w a y of good age-appropriate material that focused o n tobacco as a social and political issue. For early program 11nplemente1-S,CDF's lack of commitment t o the s mmd,lte. Schools progran w'is reflected In the nature of ~ t tobacco-free were not requlred to h ~ v etobacco-free pollc~esm order to qualif! for Propos~tlon99 funds, m d they were gnen untd 1996 t o become tohacco free. CDE promulgated J definlt~onof "tobacco hee" t h ~ was t more r ~ g o l o u sthan the definltlon used b ~other . orgC~nizat~ons-schoolscould not allow an) smoking in the buddlngs, on the grounds (ulcludlng ser-

Irnplenientmg the Tobacco Control Program

111

vice yards), or in vehicles. But with the long deadline, schools could receive Proposition 99 funding without having to do anything at all about tobacco use on the school site. For those believing in policy-based health interventions, this long deadline was not a good start to the program. EARLY LEADERSHIP PROBLEMS It might hake been poss~bleto overcome the financ~aland structural problen~sthat the schools faced 111 dehvermg anti-tobacco education ~f there had been strong and comm~ttedleadersh~pat h ~ g hlevels wthin CDE, as K~zerhad provlded for DHS, but such leadership neker m'xtei ~ , ~ l ~ zRoheit ed. Rjan, who was the head of the Health! h d s , Health\ C a l ~ f o ~ n office la and respon51ble for the antl-tob~ccoeducat~oneffot ts unt~lhe left In 1994, brought the right credent~alsto the job. W ~ t ha background that cornhned trainmg and educat~on111 both health and prevention, he had vis~onfor the progrxn, but h15 own drug and 'dcot to work. hol problems got the better of h ~ mand he q u ~ corumg Kath) Yeates, who worked w ~ t hRyan and hls assistant Bill W h ~ t e (who headed CDE's tobacco program) and who was e\entuall~named to succeed h ~ m descr~bed , the leadership problem: Rohert was already in hig trouble with his own using of drugs, alcohol, and tobacco. He was in big trouble. . . . I had told Robert that if he messed up one more time that 1 \vould have to d o something about it, which 1 i o l l o \ ~ ~ d through and went . . . [ t o an] xsociate superintendent ~ v h owent to the dep~ i t )and the! just called hini in and chewed him out. Nothing happencd . . . so I matched Robert go downhill. . . . He hated confrontation of the mildest kind. And he just didn't come to work. . . . And it was too big of a task for the two of them to do without more competent staff. And they just didn't have additional competent staff that understood prevention. . . . And he didn't have the support of the agency, because he had jeopardized that. So he was taking ,111 this flack-deserved, a lot of it deserved-hut it was doing him in more than supporting him. So I think that he had the potential but he lost it. And the field was disenchanted. The CDE staff was disenchanted. And so because of that the program did suffer.'3

At a conference in Millbrae, held in the spring of 1990, White told educators to put enough tobacco material in their drug programs so that if any parent was an executive at a local voluntary health agency, he or she would see something for the Proposition 99 dollars. Rather than encouraging schools to become a partner in the larger California Tobacco Control Program, the leadership appeared to be offering cash-strapped school districts a wink and a nod to use the money however they wanted.

Implementmg the T o b ~ ~ c cControl o Program

M O N I T O R I N G X K D LACCOUNTABILITY CDE's ~ n i t ~program al simplr in\olved d ~ s t r ~ h u t l nthe g monei based o n ar erage d a ~ l r'ittendmce (ADA), n ~ t fen h prograin o r fiscal g u ~ d e l ~ n c s . XDX-h,iscd f u n d ~ n g1s easier t o distribute a n d is polit~c,ill\ lesh \ o l a t ~ l e than a contract or grants progrdtn because ~t aroids the need t o ~ p p h w h ~ some t n i a ~c o n s ~ d e rsublect~re cllterla. D15trlbutlng the Inone) acc o r d ~ n gt o cuch 3 formul,~,ilso means that n o one h,is t o c o n s ~ d e rthe mliumum amount of inone! t h ~ ,lt \n1,111 dlstrlct needs t o mount a cred~ b l ep ~ o g r a ~orn the ma.iinlim that a ldrge d ~ s t r ~can c t respons~bl~ (Seiere undelstaffing at C D E - t h ~ ee people n e r e c h ged ~ w~ ~ t hnlonltormg 1,003 school d i s t r ~ ~ t s - a g g r . ~ ~ , i t tehd s ploblem.) In addition, 11hen funds 'ire d ~ s~butect t~ 011 a n XDA b a s ~ \ monitoring , the e\penditures presents d~ificultiesbecause cllstr~ctsrecel\e a n ent~tlenlentregxdless of t h e ~ rInterest in p11tlclpatlng In the program. Carol!n bl,irt~n,the first TEOC ~ ~ ' I I I -was , asked whether the acc o u n t a b ~ l l tprohlenls ~ v e x the result of incompetence or a Jack of 111terest In keeping track of the monei. She r e p l ~ e d ,"I think it rias hoth. I think t l ~ i tther \\ere Incompetent o r the\ could haxe n r l t t e n much tighter g i ~ i d e l ~ n efor s the schools. Thev full ~ r e l lznen l that schools rvere In desperate shape for rnone), and, m'in, ~tthev didn't ride herd on ever! penn!, ~t was going t o d ~ s ~ i p p e a1r mean . J ou don't h a r e t o he a genius t o figure t h ~ sout. Noncthcless, the message that was sent out \\as 'Do the best r o u can, gur S.' Well, ~t T o u tell the schools t o do the best ~ o u d go can, . . . h e l ~ e i eme, the monel rr 111 disappear. And lndeed ~t d ~ lust who dorvn a holc." '- ilsseinhl\ hlcrnber P1111 Isenbelg (D-S,~cramento), chaired the Conference Cornnuttee t h ~ nt rote AB 7 7 , JISO became c\ 111cal about h o n schools ner-e spendmg t h e ~ rinoner. H e rxas ~ n i i t e dt o a celehrat~onof Red Ribhon Week, ,111 m t i - d r u g program, durmg the 'ind halloons tor the anti-drug n e e k \\ere purchased w t h tobncco funds. According t o Isenherg, t h ~ incident s mspired hlrn t o keep d t e r thc schools about their tobacco progr,lm: anti-drug progrml that \vac funded by the tobacco They had this cl,~bor,~te funds. And surf, did I mention tlxlt? Yes. 1 did. The!- were so pained hcc~~~nse I probuhl!- mentioned ~t in at le'lst three or four speeches. But nobody tried to t,lke that money from the~n.On the other hand, it's pretty clear that health people don't control \ h e r e the rnone!- goes once it reaches the schools. I mean it's l ~ l s oilt r there. It may he \vonderfully spent, it may he \veH ~ntcntioned.but if the smoking rate of kids is any indication, it's not having . . . rnuch im-

Implemenrmg tht Tohacco C ontrol Progr'l~n

T4 3

p x t . . . . Once thc monc! re,~chesthe school site, nobody has much of a n idea ho\t it's spent or whether it does a n y good. And as \ve got into the lattcr years, and h e p n to fumhle around with performance information a n d outcome tests , ~ n dso o n , it reinforced again, the schools don't comfortahl! deal \vith that conceptually n h c t l ~ it's r the cigarette t a l money or an) tlung else. " Adding t o the accountability prohlenl of the blended model \vas the lack of a plan t o evaluate program effectiveness. \Vhen asked about evaluation and reporting requirements at the first tobacco orientation conference held by CDE in San Diego in 1990, White simply told one TUPE coordinator, "Do the best you can." CIIE did not attempt t o account for how the schools were spending the Proposition 9 9 Health Education Account ~ ~ n t1993, il when it included use of these funds in its biennial Coordinated Compliance Review, whereby CDE evaluated how local districts were implenienting state education mandates. The effort t o put TUI'E into the Coordinated Compliance Review reflects the effort under Yeatcs t o give the program more accountability. By ~ 9 9 8 the , inclusion of tobacco in the Coordinated Compliance Keview was regarded as a help by virtually all of the countylevel TUPE coordinators. i\ccording to one, "It took me a long time to come to this. I used to think if:you just gave education the money and leave them alone, they will d o the right thing. But I have learned that is not always the case." '"

FORMA1,IZING NONC 001'LKXTION BFTWEEN D H S A N D T H E S C H O O L S Even though it Lvas theoretically desirable to have a close relationship l>et\veen the DHS-funded community programs and the programs in the schools, there were many political and bureaucratic impediments to effective collaboration. Thc increasingly specific tobacco control programs of DHS, the LLAs, and their coalitions diverged over time from the schools' diffuse efforts. Tobacco control advocates increasingly viewed the schools as black holes into which money would disappear with little 01- n o e&ct o n tobacco consumption. S C S decided to limit LLA involvement in the classroom because of concern that the schools would c o o p LLA funding to serve needs that CDE was supposed to be tinancing. S C S was also worried that, as with the early focus o n cessation, 1.1.X~ would spend their time doing one-shot presentations in the schools rather than moving into polic!r-based activities for community change.

113

Implementing the Tobacco Control Program

In Septembe~1990 TCS was suffic~entlyconcerned about the wa)i that CDE was spendmg ~ t monel s t h ~ ~t t drew u p the followmg gu~delmes: I. DHS h n d s c'lnnot be used for the development or implen~entation of:in-classroom curriculum in public schoo1s without prior state contract ap-

proval. 2. DHS-funded programs 111 school settings must be non-curricular programs that supplement ongoing Department of Education (DOE)funded curriculum programs in the classroom or are extra-curricular activities for lvhich DOE funding is not available to s ~ l p p o r t . ~ "

In 1993, in a study of eight counties, the three LLAs that were trying to collaborate with the schools voiced strong objections t o the guidelines because the guidelines second-guessed and impeded their e f i ~ r t s . By ~' 1998, ivhen fifteen of the sixty-one LLA directors were interviewed, n o one mentioned them because most were no longer trying t o work in schools very much. Carolyn Martin, ~ v h oheaded TEOC at the time the classroom guidelines were established, \vns angry about them: \Ve found out later that. as the inone! became tighter, Dileep Bnl had told his friends ~t DHS, "Under no circunxtances are you to do an) thing whatsoever in the schools. They have their own money and we don't need to help them out." Well, on the community level this is a source of great anger and re. we h a ~ al>e sentment because it's stupid . . . a n d the local yokels know ~ t So solutely given Dileep marching orders that they are to cooperate and spend time and money in the schools. Non whether or not that mill happen, I don't k n o w :-

The LLX d~rectorshad m x e d reactlons about the P r o p o s ~ t ~ o99 n program m the schools, g e n e ~ a l hmore negatlve than posmke. Of the fifteen LLA d~rectorsInter1 ~ e n e dIn l 9 9 8 for t h ~ book, s seken thought that thelr schools h ~ done d \er1 l~ttleon the tobacco Issue. E ~ r ethought some tobacco programmlng had occurred, although the) h ~ hoped d for better. t t h e ~ rschools. 01ll)i three of the fifteen n7ere supportive of the e t f o ~ In CONCLUSION Thanks to the strong leadership that Iontrol Sect~on'splan t o c r e m w m e noiw \I d 5 ~ ~ C J I - I working. T k o r t ~tile percent ot respondents thought the c,irnp,llgn i ~ o i ~ help l d smokers stop a n d -0 percent thought ~twould 1-xe t f e c t ~ i eIn stopping noninioker\ from s t a ~ t m gH . o n e ~ e r ,111 , e i e n I q e r shale of respondents ( X 3 percent) thought school-hased smokmg educ,it~onp r o g r a m \\ould be more e t f e c t ~ i et h m the ~ d sIn . ~ d d l t l o u 74 , percent ~ i 1 dthe! it ould rather see the n o n e \ spent o n h e ~ l t ha r e for tlie poor t h m o n die inecl~,ic a m p a l p . T h c ~e n as an c\en split, 4 3 percent t o 43 percent, hetivee~ithose \v110 tho~iglitthe , i d i e ~ - t ~ w m e nnt se r e a n ,lpproprl,lte use of \rate mane\ ancl those n l10 d l d not. KRC concluded. To eng'igc in s public debate over this ,lilverr~singcampalgn (i.e., \ t h c t l ~ e rit i \ ,In .ipprc)priate use ot state funds, a n d \zhether it \\.ill ,lctl~allyhe a n effective deterrent t o smoking) \\.ill n m t likely serve only to escalxe the controversy. K7c helieve ~tn d l be more effective for the T o l m x o Institute not t o engage t in this b ~ t t l e but . rather t o attenipt t o tocus attention o n the n.nys t h ~ pcoplc tvould prefcr t o see state money spent in the p11wit ot improved p ~ ~ b lhealth. ic To this end, we helicve that the questions we develop for use in F~cld's( h itorni'l 1'011 s h o ~ ~ lie l d desig~ieclt o identify the types of health csre and educ,~r 1 o n ~p1r o g r x n s t l ~ people t believe will he more effective , ~ n that d they \vould prefer t o sec tuncied.'

The armosphei-c in C'llifornia a p p e ~ r sto he r;lj)~dlye v o l v i ~ iInto ~ J I I a11t1smoking en\~ironrnerit.This "reality" is Llc.cc,ptrti hy smokers and ,rtf~,oc,rtrti by non-smol n monc\. T h e report comments,

The Tohacco Industry's Rcsponse

15-5

The report n as ~ ~ i i c e r t a~ ~hno uthe t degree t o n h ~ c ht o b ~ c c oh ~ dm, h e t , become p x t o f the schools' program and suggested that the c u t b ~ c l \ s c o ~ l l d"be ot some rellet t o the ~ n d u c t r ;r funds ,Ire b e q shifted t o ,ire,ls o u t s ~ d eot the He,llth E . d u c ~ t ~ oAccount, n ,lnd C DE n 111 continue spreading [the reduced ,~llocation]a m o n g drug and alcohol programs rather than tobacco exclusivel!~." l ' The chief threat posed by the schools, accorciing to the report, was that schools had helped frame the smoking issue '1s :I health issue, ~vl-hiclithe tohacco industr!- had consistently tried t o avoid in California. When snlokirlg was framed as a health issue, not one of individual choice or tauation, the industry generally lost its political battles. The tolwcco industry had its o ~ v nstrategy for schools. It produced curricula designed t o "educate" kids ahout tohacco lvithout clearly discussing the health dangers of smoking or the tact that it killed adult smokers. K J Reynolds p r o d ~ ~ c c"Right d Decisions, Right Now-";the Tobacco Institute produced "Tolxmx): Helping Youth SA\.;No," originally entitled "Helping k u t h Decide." Both packages \ $ w e slickly produced and \\ere free t o schools. Rather than presenting tobacco as a dangerous product that should be ,I\ oided br et err one, these ~ m t e r ~ aelm s pli~s~red "the cholce t o smoke" ,ind th'lt " s m o k ~ n gn a s for ~ d u l t s . "The industrr t lelustified t h e ~ rmater~,ilsn it11 the o l q e c t ~ ~ofe ensurlng t h ~ "mmors celxe s i ~ p p o r at n d educ,it~onm regard t o smoklng bemg ,In ~ d u l pt r ~ c t ~ c e . " "These m e s s ~ g e s'ire cons~stentw t h tr,ldlt~onalt o b ~ c c o~ n d u s t r ~ adiert~siiigt h e m e s - t h ~ t smokmg m ~ k c sk ~ d slook grmvn up-and even convey the notion that smoking is a desirable "forbidden fruit" for y o ~ l t hl .' - ' - The curriculum niaterials also s e e ~ n c dt o serve an important political purpose for the i n t i ~ ~1s: tthe\ ~ supported the ,Irgurncnt that there was n o need f o go1 ~ e r n ~ n e n t o spend tC1\ dollars t o reduce s n i o k ~ n gthe ; mdustrr n o u l d t,llze c x e of e\ er\ thlng. In the e x l \ X ears of l'roposit~on 99's T o h ~ c c oControl P r o g r a n , edu-

catois who h u l d 11~1 e kno\\ 11 better contacted the t o h ~ c c ocornpmles a i d ordered some of the ~ n d u s t r ~mater~als 's for use ~n the schools. In Xprll 1992, trio '1nd a half \ears after CDh began recelr mg Proposltlon L)L) monles, B111\7i7h~te(head ot CDE's T o b ~ c c oUse P I - e ~ e n t ~kduon c ~ t l o nprogram) telephoned R I Re\ nolcls t o ask about the " R ~ g h Decit " p r o g r m ~H. . E. O s m m , to M hom Y'li~tehC1dspoken, sions, R ~ g h Non t I an 111s response b\ h ~ $~ipel-lors, s " g ~ en r the sensmr it\ ot sendmg an\ thing to the Prop 9 9 people." Os~li,in'sparmoia ~ b o ~Wi ht ~ t e h, o \ \ c ~ e r , was 111 founded. A e x later, some of the "Rlght Dec~sions,R g h t No\\ " posters were d e c o r a t ~ ~the ig ~ a l l m s the Healthv IGds, Health) C , ~ l ~ t o r i i ~ 1 office. Wh~te not the onl) person from the schools requesting these m t e r ~ ~ i lSchools s. ,111 o\er the st'lte requested copies of the t o b ~ c c oindust r 's~ " e d ~ ~ c ~ l t l o nrmterials, ~ll" ~ncludmgone d~rectorof '1 Health\ IGds reg~on,dcentcl. ''

The L)HS anti-smoking advertising campaign clearly identified the tobacco industry a s a threat t o thc public health, and the industry reacted quickly and vigorousl>-to develop J. political strategy to fight the media program. The industry learned from its defeat in the AB 7 j hattle that it ~vouldhave to stay in the shado~vsand work through surrogates to fight the media campaign in the Legislature. The schools did not threaten the industry. While some efforts to place tobacco industry materials \vere rebuffed in schools, the CDE leadership showed littlc commitment to anti-tol~accoefforts. Man!- were cven willing to cooperate with the industry in distributing its curricula, despite the fact that this material \\.as widely criticized in the public health community. For the industry, the Proposition c ) ~ programs ) in the schools posed no threat and cven presented an o p p o r t ~ ~ n itot j advance its own legislative strategy. Industry documents contained 110 strategy to kill ofi the schools program. The media campaign and the local government programs \vex not so fortunate. The fight '~gainstanti-tobacco efforts at the local level, in fact, became a central piece of the industry strategy, one in \vhich the industry \vould invest substantial time and money.

Peter Hanauer, one of the early leaders of the nonsmokers' rights movement in California, viewed secondhand smoke as an environmental problem, as opposed to a medical one. (Photo courtesy of P. Hanauer)

Paul Loveday joined with Hanauer to provide the core leadership of the 1978 and 1980 efforts to enact clean indoor air laws in California through the initiative Drocess. While the tobacco industrv defeated these initiatives. nonsmokers' rights advocates developed the political skills and strategies to defeat the tobacco industry at the local level. The photo shows Loveday leaving the US Court of Appeals in Washington after arguing that the Federal Communications Commission should require disclosure of tobacco industry sponsorship of advertisements in political campaigns. (Photo courtesy of P. Loveday)

Tony Najera, the American Lung Association's lobbyist, joined Mekemson and others in developing and passing Proposition 99. Najera, a continuous vresence in the Capitol, led insider efforts within the Legislature to implement tobacco control programs. (Photo courtesy of Tony Najera)

Curt Mekemson (shown here with his wife Peggy), working with environmentalist Gerald Meral, originated the idea of raising the tobacco tax and allocating a portion of the revenues to tobacco control. This idea was realized in Proposition 99. (Photo courtesy of C. Mekemson)

Carolyn Martin, a longtime American Lung Association volunteer, played a leading role in passing Proposition y y and organizing the early opposition to the Philip Morris initiative, Proposition 188. She also served as the first chair of the Tobacco Education Oversight Committee. (Photo courtesy of C. Martin)

Julia Carol rose from secretary of Americans for Nonsmokers' Rights to become its executive director and the champion of local grassroots efforts to protect nonsmokers. She also played a leading role in the 1996 public campaign to rescue Proposition 99 by moving from insider to outsider strategies. (Photo courtesy of J. Carol)

John Miller, chief of staff to Senator Diane Watson and the Senate Committee on Health and Human Services, was the primary inside player within the legislative staff who worked to support tobacco control efforts. (Photo courtesy of J. Miller)

Dileep Bal, the head of the Department of Health Services Cancer Control Branch, which includes the Tobacco Control Section, provided the vision and bureaucratic savvy that helped California develop the most aggressive tobacco control program in the nation. (Photo courtesy of D. Bal)

Republican Governor Pete Wilson (left) and Democrat Assembly Speaker Willie Brown (right) clashed on many issues but worked together to gut California's tobacco control program. (Photo by Rich Pedroncelli)

Sandra Smoley (right), secretary of health and welfare in the Wilson administration, voted against the Sacramento clean indoor air ordinance when she was a member of the Sacramento Board of Supervisors. She took the lead in forcing the California Tobacco Control Program to tone down attacks on the tobacco industry. Kimberly BelshC (left), director of the Department of Health Services, campaigned against Proposition 99 for the tobacco industry in 1988, then occasionally advocated for the Tobacco Control Program behind the scenes, but ultimately implemented administration policies to tone down the campaign. (Photo courtesy of California Department of Health Services)

Jennie Cook, an active volunteer with the American Cancer Society who rose to become the national chair of the board, worked on tobacco control activities in California and became the second chair of the Tobacco Education and Research Oversight Committee. Cook generally avoided confrontation with the administration, but eventually took the lead in using TEROC as a platform to pressure the Wilson administration to strengthen the anti-tobacco media campaign. (Photo courtesy of J. Cook)

~mericanHeart Association lobbyist Mary Adams (right) convinced Executive rice President Roman Bowser (left) to join in an aggressive public campaign 3 force the California Medical Association away from the tobacco industry nd hold Governor Pete Wilson accountable in the successful drive to restore mding for Proposition 99. (Photo courtesy of M. Adams)

The staff of the Department of Health Services Tobacco Control Section gave UCSF Professor Stanton Glantz a t-shirt labeled "Here Comes Trouble" in honor of his role-both in public and behind the scenes-in pressuring the administration to strengthen the tobacco control program.

C H A P 1 E R c)

The Battle over Local Tobacco Control Ordinances

I J n l ~ k tthe medi,~canp,ilgn m d school prog~-a~ms, \vh~clistarted from scratch ,&er the Loters p'issed P ~ - o p o s ~ t ~9 9o ,nthe effort t o pass loc,il tobacco control ordinances \\as ,~lre,ld~ well under nrcly b\ the tlme that the Depal-tment of Health S e r ~ices ( D H I ) \et up ~ t tobacco s control pron 111 r 990, gram. K\ the tlmc DHS s t x t e d t o impleme~ltP r o p o s ~ t ~ o9c) 2 1 3 C,il~torn~a conirnunltles, u o r h g wsth ~ I ~ ~ I L I I tor I S Nonsmokers' Rights IXNR), had p s s e d l o c d clean 111door'iir ord~nanccs.After Propo) this eftort wcen ed 1' sulxtant~alboost. DHS, the local si:~on 9 ~pCiswd, le,ld agcniles (LLX\), and the local c o d ~ t ~ o rnasp ~ d l \'~doptecithe local o r d ~ n a n i estrategr that had g r o n n out o f l'ropos~t~ons j, T O , and P ,I ded pursumg m ~ eThe . m e d ~ cnmp,ilgn ,~ i,lde e x l ~ m e ~d that ANR h ~ heen r'11sed public awareness of seconcihand smoke l,sues, and IIHS pro\ ~ d e d l e w u r i e s and teclm~cala s s i s t ~ ~ 111th ~ c e v hlcll the L1 As and other groups d local tobacco could engage the p u b l ~ cIn d e ~ e l o p ~ n~g n ~mplemcntmg L O I I ~ I - Op~o l ~ c ~ e s . The tohacco ~ i ~ d u s t ralso \ recogn~zedthe power of local action. It l t x u u s e 11I,~cl\ectcl eduol-ked III the shadows t o imderrnme l o c ~ethrts, ~bilit\n ~ t hthe p u b l ~ c In . J r98y opmlon poll conducted h\ the G,illup Organ17,lt1on,the Tobacco Jnstltutc r e c e ~ t e dthe most unta\ or,ible r ~ t ~ n g ,1111ong nlne n,it~onall)recogn~zedInterest groups.' TINSpoll confirmed the results of ,I secret poll done for the Tobacco lnstltute h \ Txr,ince ,lnd A w u a t e s in r 982, \\ h ~ c hfound that m e r t ~nduatr)o p p o s ~ t ~ o1nc-i n ~ilsed

The B~ttleover Locd Tobacco Control Ord~nmces CONFIDENTIAL: MINNESOTA TOBACCO LITIGATION

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Figure T O . Pliilip hlorris's secret California Action Plan network. Philip hlorris hired the Dolphin Group to create this coalition of "business and restaurant associations" to obscure the industry's role in orchestrating opposition to local clean indoor air laws. Sortrcc: Philip Morris ( ? ) , 1 9 9 1 Califorrzia Plnrz, 1 9 9 4 (Bates No. r o r r 8 r h o ~ o / h o 8 0 ) . popular support for proposed clean indoor air legislation.' As a result, lobbyists for the Tobacco Institute tried t o stay o u t of public view. For example, the institute's West Coast lobbyist, Ron Saldana, attended hearings o n local smoking control ordinances but rarely testified; when asked why, he said, "I've learned from experience that as soon as I'm identified as a representative of the Tobacco Institute, I lose all credibility. They just sneer us away. . . . So I try t o work behind the scenes whenever I can." ; Over time, the tobacco industry would use public relations firms t o create a network of front groups-"restaurant and business associations"-to fight clean indoor air ordinances (figure 10). While hundreds of California communities would enact local tobacco control ordinances, a few of these battles with the tobacco industry will

The Battle over Local Tobacco Control Ordinances

Ii9

capture the flavor of all the fights. The first such battle occurred in Beverly Hills in 1987, the year before Proposition 99 passed.

BEVERLY HILLS In 1987 the Beverly Hills City Council proposed a I O O percent smokefree requirement for the city's restaurants. This ordinance would have been only the second such ordinance in the country and the first in California. For the proposal to become law, the council had to approve it on two separate readings. The ordinance passed its first reading without public opposition. Between the first and second readings, the Tobacco Institute hired political consultant Rudy Cole to create the Beverly Hills Restaurant Association (BHRA)to oppose the ordinance.-' To drum up membership for BHRA, Ron Saldana, the Tobacco Institute's regional director, spoke to the local restaurant owners and the Chamber of Commerce to "make them aware of the potential impact the ordinance will have on the community." The Tobacco Institute's role in creating the BHRA was not disclosed. At the second reading, Cole appeared as spokesperson of the newly formed Beverly Hills Restaurant Association to protest the ordinance. Nonetheless, the city council unanimously passed it in March 1987, making Beverly Hills approximately the 130th community in California to pass a clean indoor air ordinance and the state's first to make restaurants entirely smoke free. Mickey Kantor, a prominent attorney in the well-connected law firm of Manatt, Phelps, Rothenberg and Phillips, was hired to represent the BHRA. (Kantor, a power in California Democratic politics, went on to become President Bill Clinton's foreign trade representative, secretary of commerce, and a key personal advisor in the Monica Lewinsky controversy.) The BHRA attempted to get a temporary court order to stop the implementation of the ordinance, but the effort failed.6 Kantor then filed a lawsuit against the city claiming that the ordinance was unconstitutional, discriminatory, and disastrous for business. This action also failed.' The Tobacco Institute paid BHRA's legal bills." Having failed to void the law in court, the BHRA complained that restaurants had suffered a 30 percent drop in business after the ordinance took While being touted widely in tobacco industry publications, this claim was not challenged or investigated by the health community at the time. As a result, the claim of a serious impact on business

'

160

The Battle over 1,ocal Tobacco Control Ordinances

\ \ X n i d e l ~~ c c e p t e d 111 . J u h , tour months after the o l d ~ n m c en e n t mto effect, the c1t1 c o u n i ~ ~l o t e d5-0 to ~ l l o wrest'lurants to establ~shsmokIng sectlons of up to 40 percent of the11 seatmg. Sir L e x s later, Barn Fogel, BHRA's n o m ~ n a lple\~dent,n rote to the N e n York C I ~ CJ o u n c ~to l endorse ~ t planned s ordinance making rest,turants smoke flee. H e recounted the h ~ s t o i \of RHRX:

There \t,ls n o Beverly H ~ l l sRestaur,lnt Association before the srnokefree ordinance. f 'e were organized b!- the t o b x c o industry. The industry helped pay our legal bills in ,I suit agalnst 1Se\erly Hills. The industry even flew some of our members b! Le'ir J e t t o K,~nchollir'lge, another Cal~forniacity sonsidering smokefree rest,luranr legisl,~tion,t o testify before their (:it! (,ouncil against ,l similar smokefree ordin,ince. Tobacco Institute representatives ~ t tended some of our meetings. The tobacco industr!- repeatedly claimed t h t Beverly Hills restaurmts saffered a 3o?,, decline in re\-enues during the j months that the smokefree ordinance was in effezt. Figures from the St'lte Board of Equ~lizationusing sales tax data, however, shon-ed J slight increase In restaurant sales. I regret m!- prticipation ~ v i t hthe tobacco industry. In 1 9 9 r when I learned that sccondhmd smoke caused cancer, I made all Jacopo's restaurants loo"^ smokefree, ~ncludingbar and outdoor p a i o areas. Even in t h ~ sdifficult economlc c l i m ~ t e .our sales have risen."

The t o b ~ i c oinciustr~could claim a 1 lctor\ in B e ~ e r hH ~ l l sbecause t h ~ \\as s the f i ~ stime t a nonsmokers' r ~ g h t ord~nance s h ~ been d weakened &er ~t was enacted. E\en so, \r h ~ l eBe~erlvHills represented a setlxck for clean mdoor 'iir ad\ocates, the 6 0 percent mlnlmum nonsmok~ngieq ~ ~ i r e m estill n t left Becerl~H ~ l l sm ~ t hthe strongest o r d ~ n m c eIn the state at that tune.

LODI The nloieluent t o n ~ x dJ smoke-tree soclet\ took a b ~ gstep fornard m the small f a r m ~ n gcornrnunltl of L o d ~( p o p i h t i o n ~ O , O O O In) Cdlfornia's Central Valley. Xrmed \r~iththe recent US Enr iro~lnlentall'rotect~on Xgenc) report t h ~ identified t secondhand smoke '1s a Class X carcinogen,13 the San Joaquin Count) Smoking Action Coal~tion,a gsoup of residents formed to PI-omotesmoking 01-dinances,approached the Lodi Citj C o u n c ~ lIn December 1989 t o request conslderat~onof a s m o k ~ n g control ordinmce. Sand\ Stodd,lrci, a c o , i l ~ t ~ omember n and American C m c e r Cociet) (ACS) staff member, had g r o u n u p in L o d ~and knew three of the file c o u n c ~ memhers l person~ll~.~~

The Battle over Local Tobacco Control Ordinances

161

During the spring of 1990, the Lodi City Council formally considered a smoking ordinance. After promoting the ordinance, the community health activists took a back seat as elected officials, particularly Mayor Randy Snider, molded the proposal. O n May I 6, the city council voted 4-1 in favor of an ordinance prohibiting smoking in almost all indoor public places. (Bars, motel and hotel rooms, retail tobacco stores, private offices, and residences were excluded.) Before the proposal became law, the council was to vote on it again, within one month after the initial vote. During the intervening three weeks, RJ Reynolds learned of the proposal and sent an Action Alert letter to residents of Lodi, urging them to call their council members and attend the council meeting to voice opposition to the proposal. The names and telephone numbers of council members were included in the letter, as well as a toll-free RJ Reynolds telephone number for anyone with questions. Meanwhile, in June 1790, a group called Taxpayers United for Freedom (TUFF)was formed in Lodi to oppose the ordinance. TUFF claimed to be a grassroots organization that did not receive support from the tobacco industry. Adam Dados, a spokesperson for the group, sald, "We've only received some ashtrays and lighters from the tobacco companies." l ' In contrast to the first city council meeting, where little opposition was evident, the June 6, 1990, meeting was a raucous affair with 400 people attending, some hissing and booing during testimony by the ordinance's supporters. Local physicians, ANR, and the local chapters of the ACS and XHA spoke in favor of the ordinance. ANR's executive director, Julia Carol, said after the meeting that she had been to many similar hearings but "none so hostile." I h Those who spoke in opposition to the proposal were all local residents. Dados presented petitions with over 3,000 signatures to the council. Despite efforts by RJ Reynolds and TUFF to organize opposition to the ordinance, the Lodi City Council passed it on second reading by a 4-1 vote. Lodi became the first IOO percent smoke-free city in the United States. After the vote, Bill Stamos, a Lodi resident, armchair legal scholar, nonsmoker, and opponent of the ordinance, drafted a referendum for TUFF to force a popular vote on the ordinance." Supporters of the referendum had thirty days to gather 2,3 69 signatures for it; they turned in petitions with 5,051 signatures. The council had two choices: repeal the ordinance or put it on the ballot. They voted to let the people of Lodi decide.

162

The Battle over Local Tohacco Control O r d i n a n i e ~

Soon after TUFF submitted the petitions, ordinance supporters formed the Lodi Indoor C l e m Air Coalition (LICXC).This group, led by a physician and a retired waitress, lvas formed without the assistance of any established health organization. On Jul!- 10 LICXC held a puhlic meeting; about I 7 j local residents attended, $r,ooo was raised, and volunteers \\.ere identified for the campaign. Assuming that TUFF would mount a well-organized campaign, LICAC decided t o hire a professional campaign coordinator. D~iringthe initial ~veeksLICAC rnohilized support and asked for contributions from concerned citizens through advertisements in the local ne\vspaper. hIost of' the larger contributions came from illedical professionals. Of the S 6 , r j o in contributions amounting to $100 or more, S j , r o o came trom individual doctors and medical companies, groups usually hesitant to become involved in local political cam~ ~ , half of: which was in p a i g n ~ . LICAC '~ raised a total of $ 1 2 , 0 ~ almost contributions of less than S I 00.'" Ii~dependentlyof LICAC, the local ACS sent out approximately 1 , r j o letters to patients and volunteers in Lodi urging them to support the referendum on the smoking ordinrmce.'4 No efiort was made by the other local voluntary health agencies (XLX or AHX) to mobilize support for the referendum. The California Medical Association was asked to support LICAC but did not contribute to the campaign.'" LILAC'S campaign strategy \\.as to discredit the opposition, not by attacking TUFF directly hut by indirectly laheling the group as a tohacco industry front." LICXC used nen-spaper advertisements borrowed from health activists in Fort Chllius, Colorado, \v110 had faced a similar campaign in 1984. These advertisements included one portraying a tobacco spokes~nannxving his cigar, saying, "So long Lodi, it's been good t o k n o ~~O L I as , ' ' he hopped into his limousine to leave toum after the election, his briefcase full of tobacco industry money. TUFK's advertisements focused on smoking as an issue of rights and freedoms, embedded in the U.S. Constitution. One ad, framed with the American flag, proclaimed, "The smoking ban . . . is A N T I - A M E R I C A N and in violation of the very precepts of our inalienable rights as Americans." l ' TUFF also ~ ~ s the e d specter of severe punishments for ordinance ofienders. One cartoon showed t\vo prisoners in a jail cell, one saying, "I'm in here ior murder, extortion and grand theft! V l h t did you d o ? " The other replied, "I lit up a cigarette in Lodi!" l ' TUFF collected more than $11,439 in monetary contributions from

local indi\.idu,~ls,businesses, and fund-raising events." The \.ast majority of clonations were less than $ I oo; the source of these donations was not subject to disclosure, but presumably they came froni concerned local residents. Responding to the charge that TUFF Lvas a front for the cigarette compnnies, Dados said that Philip Morris had contacted him in the early ~veeksof the campaign t o offer support hut that nothing e i w came of the offer. According to Dados, tobacco industry support would gladly be accepted.'' In tact, the tobacco industry supported TUFF. TBI' Political Consulting in San Francisco, the firm of RJ Reynolds consultant Tim Pueyo, loaned TUFF $ I ,200."Vl'hen asked about the San Frailcisco connection, D;ldos said Pueyo xvas just a friend. Rudy Cole of tlie tobacco industry's RHRA appeared in Lodi in October, where he \vas s t I 990, the keynote speaker at a major TUFF fund-raiser. On X u g ~ ~rc), RJ Keynolds hired a firm in Winston-Salem, North (:arolina, to send letters to Lodi residents encouraging them to vote against tlie ordin:~nce.'~ In Ko\.emher, despite the efforts of TUFF and tlie tobacco industr!., tlie voters in Lodi approved the 01-dinance hy a n over\vhelniing 60 percent (1,986 t o 1,470). Even after they lost the election, TUFF did not give up." They threatened a recall of the council members who voted for the ordinance and targeted Mayor Randy Snider whet1 he ran for reelection; Snider won. They filed a legal cliallenge against the ordinmce, which tailed. The)- attempted to organize noncompliance. In the end, ho\vever, the ordinance went into effect and lvas enforced, making L d i the first city in California to enact and maintain a law requiring l o o percent smoke-free restaurants. Other cities began t o follow suit. I11 August 1c)c)othe coastal college toivn of San Luis Obispo impleniented the nation's first 1:1w creating smoke-free hars.

While the battle in Lodi was taking place, both S:~cramentoand Sacramento County enacted strong ordinances ending smoking in all public and private \vorl-based ad\ ocates

The ,~bilityt o rightfully project a loc-,zi concern clbout a given anti-tobacco ordinmce, making it more difficult for anti-tobacco leaders t o say, " 7 h e only people w h o oppose this ordinance are the out-of-state tobacco companies" Rcawnabl! coordinated and effective means to trigger direct mail c a n paigns. phone bank operations and other contacts '"[emphasis in original ]

hlalmgren also cited one of the Tobacco Institute's strengths in California: "The industry team quickly employs coalition coordinators who can -quickly and effectively-do the necessary legwork t o develop support for individud I-estaurateurs, retailers, hoteliers, local lahor leaders and others." '"Significant local opposition to local ordinances was unlikely to exist ivithout an employed coalition coordinator. While the industry KLIS able to slow passage of local ordinances using these strategies, in the end the tobacco control community-thi-o~lgh a combination of Proposition 99-funded educational programs and privately funded political action-~vas routinely defeating the tobacco industry at the local level. An undated Philip Morris menlot-andum on various state tobacco control programs observed, In Cdifornia our biggest c h ~ l l e n g ehas not been the anti-smoking advertising calnpalgn created with cigarette excise tax dollars. Rather. it has been the crcatiot~o f i z r ~~ n t ~ - s m ~ k~i u~ gz f ~ a s t i . ~right ~~twe, down t o the local level. It is a n infrastructure that for the first time h,ls the resources t o tap into the anti-smoking network at the national level." [emphasis added1

Much as it disliked the anti-tobacco media campaign, the industry recognized that, contrary t o its early expectations, there were other potent forces at w o r k that ~17ouldcause serious problems. T H E T O B A C C O INDUSTRY A N D T H E C A L I F O R N I A PUBLIC R E C O R D S A C T One fiml t a c t ~ cstr,~teg~cally used hv the tobacco ~ n d u s t r yt o ~nipedestate m d local tobacco control operations ~nvolbedfreedom of mformation

The Battle over Local Tobacco Control O r i i ~ m n i e s

a n d smokers' rights Figure r r . The tobacco industry'c net\zork of l ~ n firms groups. which submitted requests to tohacco control organiz'1tions under the Cnlifornicl Puhlic Records Act. Sol~usc:S. Aguin'lga S and S. X. Glantz, The ~ l s eof nuhlic records acts t o interfere n i t h tobacco control. Tobac-so Coiztrol 1995; I C ) L ) ~ (1~2)2:- 2 3 0 . Reproduced lvith permission of Tobacco Coztrol (copyright BL1J Publi\h~ngGroup).

acts. These lav S, cre'lted to msure that cltilenn had access t o mformar nese used '1s 1' tool t o slow the work tlon collected h\ t h e ~ goiei-nn~ents, of tobacco control offices. The t o b ~ c c o~ n d u s t r \set up a complex \\eb of law firms m d smokers' nghts g r ~ u p to s s u b ~ m requests t for informcltion under the Calitorn~aI'ublic Records Act (figure 12). DHS's Tobacco Control Section (TCS) rece~redm m \ more requests for public ~nform~ltlon than other seem~nglvcontro\ers~alstate-level health programs, such '1s AIDS and alcohol and drug programs or the HIV presentlon p r o g ~am at the C'll~forn~a Department of Educat~on.In fact, TCS \vas the o n h health p r o g r a n recar Ing requestc; hetn een I 99 I and 199 3, there n e r e fifty-nme requests t o r 371 documents.'' For example, o n Xprd 4, 1991, M x k Helm of the Los Angeles IJM firm Munger, Tolles & Olson 11rote t o the T o h ~ c c oControl Sect1011to request

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"all public records (including all correspondence, memoranda, and other documents) dated on or after November I, 1988" related to the baseline survey, innovative programs, the independent evaluation, the information campaign, the master plan, and the activities of TEOC. The request appears to have simply replicated the language of Assembly Bill 75." The firm was working in 1990 as Philip Morris's California counsel.54 From April to June 1991, the freedom of information requests came from the Nielsen, Merksamer law firm, which handled much of the tobacco industry's legal work in California. This tactic of using the freedom of information act as a form of harassment was to continue throughout the life of the program and eventually included requests to the health departments in the larger counties and the California Department of E d u ~ a t i o n .Program '~ advocates, however, eventually understood how to handle such requests with minimal disruption to their operations: by requiring requests in writing and by assessing reasonable photocopying charges on the requesting parties. Some of the LLAs responded to the requests by using them to call attention to the tobacco industry. In 1993, for example, the Contra Costa County LLA received a public records act request from a Marietta Stuart. The director replied by saying that complying with the request would disrupt the LLA's work and suggested that Stuart come in personally to inspect the documents and make photocopies. In response, the LLA received a call from the law firm Bell and Hiltachk, representing Californians for Smokers' Rights; the firm scheduled a time for someone to come with a copy machine to photocopy the documents. When Glenn Williams, a Californians for Smokers' Rights employee, arrived with a copier, the LLA director was waiting with the media to denounce what she perceived as harassment by pro-tobacco groups. The incident received wide coverage in the press, and requests to the LLA stopped. The tobacco industry recognized that the public health community was getting more sophisticated in dealing with its tactics. For example, when Stratton, Reiter, Dupree & Durante was preparing its report for RJ Reynolds, one of the complaints in the report was the effectiveness with which TCS had dealt with records act requests: "TCS's heightened concern over the status of its '91-'92 Fiscal Budget, plus a profound screening process to ward off tobacco industry access to public documents, presented significant barriers to reviewing individual grants and county tobacco control plans. Thus a significant element of this research project involved creating access points to interviews and publications

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The h t t l e mer L o c ~ T l O~JLC Control O Ord~nmces

among TCS staff, state government leads, and unsuspecting program contractors." " In addition t o seeking t o disrupt policy making by state and local health departments working for tobacco control, the industry used much of the information obtained through the California Public Records Act 111 its propaganda. In the upcoming legislative battles over Proposition 99 reauthorization, the information was to emerge in the industry's attacks on innovative tobacco control projects as a waste of money. CONCLUSION The local battles of the late 1980s and early 1990s taught t o h acc0 - - control advocates several l e ~ s o n s . ' ~ .First, ~ " they could expect the tobacco industry to intervene, although indirectly, through groups like CBRA, SRhIA, CFBP, and RSVP, t o fight local tobacco control ordinances. Even these groups, however, tried to stay out of the public view by providing behind-the-scenes :issistance and information t o mobilize local opposition. Second, as the health dangers of secondhand smoke became more widely known and believed, the only way the industry could counter the health message was to generate claims of adverse economic impact. Since these claims nrere not sound, the tobacco industry had to create "facts" in order t o make their arguments. Such facts were often generated and circulated by public affairs firms, particularly the claim that smoke-free ordinances had reduced restaurant sales by 3 0 percent. Local proponents learned to counter these "facts" with peer-reviewed scientific studies proving the industry charges of adverse economic consequences were not true. Third, while health professionals gained expertise in avoiding the time and expense of defending the ordinance at the polls, tobacco control advocates still had a chance to \vin if forced to the polls, in spite of the industry's money. In most cases, when tobacco control advocates and elected officials remained active and committed and raised adequate money, the industry's efforts failed. Effective campaigns took advantage of both the tobacco industry's lack of credibility and the voters' understanding of the dangers of secondhand smoke. Proposition ~ , s - i u n d e deducation, through the media campaign, o n the dangers of secondhand smoke, as ~vellas the messages designed t o discredit the tobacco industry, created a n environment where it was easier to mobilize public and political support for policies to protect nonsmokers from secondhand smoke. The DHS also gave the Americans for C

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Nonsmokers' Rights Foundation a contract to provide technical assistance to the LLAs and other organizations involved in the Proposition 99 Health Education program. This assistance helped local tobacco control advocates better anticipate and fight the tobacco industry's tactics. The local programs reinforced these messages, and the local coalitions, the voluntary health agencies, and XNR leveraged this environment to increase the effectiveness with which they fought the tobacco industry in the political arena. Overall, the local ordinance effort was to prove remarkably successful. Between 1989 and January I, 1995, when a statewide smoke-free workplace law went in to effect, 195 local clean indoor air ordinances were passed or strengthened in California. As the tobacco industry had feared, this new environment contributed to the marked decline in smoking in California.'"-jx The tobacco industry recognized that its historical ability to control tobacco policy in California was no longer as effective because tobacco control advocates moved successfully to the local level and away from the Legislature. While they were willing to fight local ordinances as an interim measure, the industry was still counting on the California Legislature to rescue it, which it could do in two ways. First, the Legislature could increasingly "de-fund" the LLAs and the media campaign, both of which were supporting local efforts. Second, the Legislature could pass statewide legislation that would preenlpt the ability of local level governments, either city or county, to pass legislation.'" With a single, weak state-level law, the local ordinance campaigns would disappear.

Continued Erosion of the Health Education Account

1'1-oposit~on99's cint~-to13a~co progrmls n e r e oft t o 1' good st'il-t. The rnedl'l c ~ m p ~ h~ ~gc n,ich~e\ed i h ~ g h\ i s l b ~ l ~ nt \~ t l i l nC ,ll~torniaand attracted ~ntern,lt~on,il ~ c c l ~The ~ n l ~o ~. i pl r o g r ~ m swere u p and running, ancl local c l e m ~ n d o ,11r o ~ ordin,~ncesm d tohacco control measures were p a s s ~ n g'1t a taster I ate. 011October ;o, I 990, the Ilepartment ot Health Cer~lces(DHC), n hich n , ~ s~ m p l e m e n t ~ n,111g the I'roposit~on 99 m t ~ tohacco eciucat~onprogrmls except the school-based p ~ o g r a m s ,estlmated t h ~Ct , ~ l i f o ~ - nhad ~ a 50,ooo t e n e r smoke1 s t h m ~t ould h a \ e had ~f P r o p o s ~ t ~ o99 n had not p s s e d , that the percent'ige ot s m o l s r s o\ er the age of t n e n t r h,id dropped iron) 24.6 pelcent t o 21.2 percent, that tod hetneen 6 2 percent hacco consumption \\ as dow11 I 4 percent, ~ n thdt and 8 5 percent of the t'irget g1 o ~ ~\\pcsc s J \ \ ~ Cot the m e d ~ ac x n p a i g n . ' \X7ith such 1' strong earl\ -pet t o ~ m m i erecord, p u h l ~ ch e ~ l t h,1d1 oc'ites should h a ~ been e In J position t o protect the Health E d u c ~ t i o nAccount from the t o b ~ i c o~ n d u s t r rand its , ~ l l ~ e\\s110 \\antcd t o sce more mane\ go t o 1ned1~,11 s e n Ices. AB -5's \unset pro\Islon took ettect o n June 30, IL)C)T, on1\ t n e n t r one months d t e r p,iss,lge, so the L e g ~ s l x ~ i rhe ~ to d enact n e n imple,l m e n t ~ n gl e g ~ s l ~ ~for t ~ oPnr o p o s ~ t i o n99 in 1991. T h ~ s i t u ~ t ~ ocreated n neu o p p o ~ tunlt\ tor the tobacco ~ i i d u s t rm~ d ~ t ,dlies s t o dismantle the mtl-tobacco progr'ims. T h e health g1 oups belle\ ed that the11 e'lrl~er c o ~ n p r o m ~ with s e the C , ~ l ~ t o r nh~l ,eid ~ c a X l s s o c ~ a t ~ o(ChlAI n ,lnd other

-

'

Continued Erosion of the H e a l t h Education Account

1x3

mcdic:il interests-allowing a relatively small amount of money to be tllken from the Health Education Account t o fund medical services like the Child Health and Disabilit!, Prevention program (CHDPj-would protect the anti-tobacco programs from further incursions. They \verc wrong. The state was facing u budget shortfall, which further motivated groups interested in funding medical services t o raid the Proposition 99 Health Eclucatio~iAccount. Ironically, the very success of the Tobacco Control Program in reducing tohacco consumption magnified this prohlem: less smoking meant fewer cigarettes sold, which meant lower Proposition VC) tobacco tax revenues. Public health groups recognized from the heginning that the Health Education revenues would decline naturally as smoking did and that, as the program succeeded in reducing tobacco consumption, it would become less necessary. But they did not anticipate that ~nedicalservice providers would work to cut health education funds faster than the natural rate of decline. For medical service providers, who faced escalating costs and a growing population demanding services, a drop in revenue due to less smoking motivated them to fight for ~1bigger piece of the shrinking financial pie. In addition, the tohacco industry was continuing to make substantial campaign contributions to niost members of the Legislature, with especially heavy donations going to the leadership. In the I ~ ~ ) T - T L ) ~elecz tion cycle, the industry spent $5.X million on campaign contributions and lobbying in California. Because of the importance of Proposition 99, the tobacco industry spent $3,772 per member in the California Legis~ m e ~ n h e in r the US lature in 1989- I 990, compared with only $ ~ , I 4per C ~ n g r e s s . ' . ~I11 particular, the industry increased contributions t o Assembly Speaker Willie Brown, w h o was uniquely positioned t o defend the industry's interests. California also had a new governor. In Novenlber 1990 Pete Wilson Lvas elected to succeed George Deukmejian. While both were Republicans, their attitudes toward initiatives differed. Deukmejian might op) , he pose 311 initiative during an election ( a s he had Proposition c ) ~ ) but would then respect the will of the voters and make an honest effort to implement any initiative that passed, including Proposition 99.' By contrast, \X7ilson believed that it was his prerogative t o "massage" initiatives."

Contmued Eros~onof the H e d t h tducatlon Account

EARLY POSTURES Legislative activity surrounding Proposition 99 began in the fall of 1990 with the formation of a steering committee of the organizations that had been most interested in AB 7 j, including the voluntaries, the CMA, California Association of Hospitals and Health Systems (CAHHS), Service Employees International Union (SEIU),Western Center for Law and Poverty, and others. The committee was to provide a forum for the groups to communicate with each other about new legislation. According to American Lung Association (ALA) lobbyist Tony Najera and Senator Watson's chief of staff, John Miller, the steering committee and Assembly Member Phi1 Isenherg (D-Sacramento),who had chaired the Conference Committee that wrote AB 75, agreed to extend the existing programs and distribution formulas without substantive changes, to share pro rata in the 14-18 percent reduction in revenues, and to minimize conflicts and press for fast-track passage of legislation authorizing the Proposition 99 programs hy March 1991.- In light of the political deal that the public health advocates had made to ensure AB 7 j's passage as well as the newness of the programs, this was not an unreasonable position. The debate was becoming simply how to divide up another pie in Sacramento. On January 7, I q q r , the three voluntaries, the CMA, CAHHS, SEIU, Western Center for Law and Poverty, and other interested parties wrote to Isenberg and the other members of the Conference Committee, urging them to extend the provisions of AB 7 j: Our organizations have worked together through-out the implementation phases of AB 7 j to assure that legislative policy objectlves are being achieved. We now join in urglng pour support for a three year extension of the provi) ) orsions of AB 7 j, as contained in AB 99 (Legislative Session T L ) C ) I - 9 2in der to assure the continuatiotl of the programs and services that are funded with these tob;~ccotax proceeds. In order to secure a stable and efficient administration at both thc state and local level, it is critical to obtain an extension of the provisions o f AB 7 j well in advance of the sunset date.#

This reauthorization strategy meant that if everyone played by the rules, then programmatic issues related to the allocation of money ~vouldnot be raised, including the issue of using the Health Education Account to fund CHDP. The health groups felt that this was the best strategy to avoid further erosion in funding of anti-tobacco education because it would not force them to defend the efficacy of:the Tobacco Control Program, which was just building steam. They did not want to appropriate

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Health Education Account money in a bill separate from the medical service accounts because doing so would isolate funding for the antitobacco program and make it a better target for the tobacco industry and its allies." The public health groups honored their side of the agreement, 31though it meant accepting the continued diversion of funds from the Health Education Account into medical services. The Tobacco Education O\wsight Committee (TEOC),the committee created by the Legislature to provide advice about Proposition 99 implementation, supported using Health Education Account money for CHDP. TEOC's position was articulated through statements by its chair, Carolyn Martin, a volunteer with ALA, and Jennie Cook, a vol~~nteer with ACS. At a January 2 3 press conference, hlartin described the activities funded by the Health Education Account, including CHDP: "The prevention message is reaching every group targeted by the enabling legislation (AB 7 j ) in settings as diverse as fast food restaurants, clinic waiting rooms and half time at the Chargers-49ers exhibition game." '"ennie Cook explicitly justified the use of Health Education Account funds for medical services: "Pregnant women who smoke become parents who smoke around their young children causing increased respiratory illness, ear infections, and reduced growth. Education efforts have begun in many prenatal care settings and matet-nal and child health programs." l 0 No one was willing to question whether CHDP should continue to receive funding from the Health Education Account.

T H E CMA POSITION

In contrast to the voluntary health agencies, w h ~ c hdemonstrxed comm~tmentto all programs, the CMA was soft on the issue of funding programs other than med~calser?lces. Although the CMA s~gnedthe January ~ 9 9 1letter to Isenberg, on November 10, 1990, the CMA Councd had adopted a recommenclation that the exlstlng P r o p o s ~ t ~ o99 n expenditure patterns be extended " u n t ~ CMA's l affordable bas~ccare p ~ o p o s d or a sinlilar proposal 1s ~mplemented."l ' AB 7 j d ~ s t r ~ b u t ~ owere n s acceptable only untd the money was needed to pay for mdigent health care. According to CMA Resolut~on9021-90, ChIX support' funding of tobacco education programs through the years 1990 and 1991, as approved by the voters of California in Prop. qq. ( L )CMA will monitor the progress of the State's evaluation of the effectiveness of the ( I )

I 86

Continued Erosion of the Health Education Account

Prop. 99 health education account. ( 3 ) CMA will work in conjunction with the legislature and with other groups interested in tobacco education and access to care, toward the goal of utilizing tobacco tax revenues for access t o care as soon as feasible, while maintaining adequate funding for tobacco education." [emphasis added]

The council had reiterated its basic position that using Health Education dollars for public health programs was an interim measure, that funding health care was the preferred policy, and that anti-tobacco education was entitled only to "adequate" funding, not "full" funding. In 1990, when chief CMA lobbyist Jay Michael was questioned about CMA policy by Lester Breslow, a member of the TEOC and former dean of the UCLA School of Public Health, Michael responded, "The CMA's policy relating to the distribution of Prop 99 monies until June 30, 1990, was consistent with our long-range policy relating to the ultimate use of Prop 99 funds in the future. . . . CMA's general policy for the short term was to ensure that physicians received their fair share of the health care funding provided by Prop 99, which was intended to temporarily patch up our health care delivery system until such time as an overall solution can be achieved to address our most serious health care problems." l 3 He went on to reiterate the CMA position emphasizing that $30 million is enough to mount a massive campaign in the schools and that a public media campaign is not likely to be effective."-" The CMA was also prepared to contest the evaluation data that showed the programs' effectiveness. When interviewed in 1993, Michael expressed his attitude about the evaluation: Did you read the study that was done by the Department of Health Services or commissioned by the Department of Health Services? I think that's a sloppy study; it's undocumented; the conclusions, or the data do not support the conclusions. . . . Why? Because the money was vulnerable to being diverted to other purposes in a tight state budget year. And they were desperate and it was a survival response. And I don't fault them for that. I've been in this business for a long time, and that's the way people behave. It's very hard to be judgmental about things like that. . . . But to cloak their biased stacked study in objectivity is offensive to me. . . . The issue is: is that the most cost-effective way to use that money to improve health and to reduce the amount of tobacco addiction? And I don't think that study has ever been made. As an advocate of the point of view that it ought to be given to health care providers and health care providers should be educated, trained to get people to stop smoking, I'm advocating that. I don't have a clue as to whether that's the most costeffective way to use the money. I'm saying it ought to be evaluated along with every other kind of use of that money by someone who really does an oh-

C ontlnued Erosmn of the He,ilth Education Account

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jeitl\e lob. Lindthe money shouldn't he spllt up 011the h m s of these h o l e \ trumped-up b1,lsed d\oc,ltes tor J particulx Interest group.'"

For the public health groups, or the "dread disease organizations," as Michael called them, these comments were not those of someone w h o wanted t o rnaintain the status quo. The Chlrl's most immediate concern was to prevent any drop in money for health services. The "maintenance of effort" clause in Proposition 99, which required that the new tobacco tax money be used to supplement rather than replace existing state funding, ~ v a as n issue in the fall of 1990. The 1990-1991 state budget had reduced funding for county Medically Indigent Senice Programs and for Medical Services Programs. According to the ChIA Council minutes, most counties believed that they could not maintain existing levels of service and thus would not be able to qualify for Proposition 99 funds, so they had asked to have the maintenance of effort requirement waived for fiscal year 1 9 9 0 - l c ) ~ ) i .The ChlA went on record as opposing any waivet- of maintenance of effort requirements. 'At the same time, on November I, 1990, the Tobacco Institute \ ~ a s also planning its 199 I legislative strategy for neutralizing Proposition 99. The main goal was t o "divert the media funds," and the institute saw7a chance to achieve this diversion: The decrease 111 revenues w l l increase the competition for funding in the q rq r budget among the various program elements. Additionally, California is expecting a shortfall of as much as $ 2 billion, possibly more, in the next fiscal >-ear.T h t u d 1 tt7inpt the new izdwrinisti.ntioir ~zndthe Legisltrturc to supp/izllt e x i s t i n g g ~ ~ n fund e ~ ~ ~r 1e ~ ~ e n wit11 u ~ s Proposition 9 9 re~~enttes zclhcre appropriiltc prograins exist. The zuoinen, infants ~112111children and t l ~ health e srrcenrng progfizrizs ore appropridte prog?'awts S ~ I I C Ctl~e?'contain mti-tobacco cdurLztion ~lernents2nd ~ ~ w satzsfy ~ l d the dictates of Proposition gq. . . . Proposition q q revenues are down which will pit the sponsors of the initicitire a p i n s t one another as they seek funding for their favorite programs. Confurion and animosity will result. . . . A coalition of interests could l]? built to cl~usethe inedta rnoney. T h e nzrc./eus of surh a coilllt~oncould h the minority heillth conznzurzities u h i c h fed not rnottgh of the Proposition q q m o n q is getting t o the strccts. Other codition nre~nbersztwtld be the rit~.al counties, '7 few of uhich are focing l ~ n k r u p t c yPuhlic . hospitals dc~spelutelj' n ~ e d1n011c?' to fitnd trmim7 centers. Other interest groups \ v o ~ ~ ljoin d the chase if they thought the money were in play.'"ernphasis added]

Rdther than battling Proposlt~on99 m the open, the t o b ~ c c o~ndustry would help orchestrate other Interests who w m t e d the money. The In-

188

Continued Erosion of the Health Education Account

dustrr \\ould remm1 In the sh,ido\\ S, m a k ~ n gcamp'ilgn contribut~ons and lobbl Ing the ,idrnm~strationand the Leg15lature out of the p u b l ~ ceye. G O V E K N O R \XrILSON'S BUDGET CUTS The hope among health groups for ,I t a s t - t r x k re~iuthortzattonot the P r o p o s ~ t ~ o99 n 'intl-tobxco proglmls was shattered m hen Repuhllcan gmerrlor Pete \ri'~lsoi~rele,~sedh ~ first s budget on ]anuCiir 10, 1991. $ T 6 1 n ~ ~ l l l o( $ n3 8 Although the Health E d u c ~ t l o nA c c o ~ ~ ncontamed t n111l1on carrted oler from prexlous ) e ~ r s ,$- m ~ l l ~ oInn Interest, m d $ 1 I 6 lnlll~onIn new t'ix I e\ enues)," the go\ ertlor a p p e ed ~ ~to x c e p t the CMX's plan to spend lust $30 ~ n ~ l l ~ono nthe DHS , i n t ~ - t o b ~ c c o progr'ltns. The gorernor's budget represented a huge cutback foi the Tobacco Contiol Program. The local le'id agenclcs (LLXs) ,ind the rned~acampatgn n ere e'lch to reietce $1j million. The LLXs h , ~ dprec iousl\ been recelr ing $ 3 6 mlllon annuall\, and the m e d ~ nc a m p l g n , $14 in11l1on'111nuall\. The competltlr e grants program would be ended ent~rel),,lftei recetring ores $50 mtllion durmg the I t k of AB 75 and '1s much ,IS SI I millton 111 1990-1991. (The Tobacco Control Section ot DHS mas also n st'lte a d n l ~ n ~ s,ition.) tl Vl'ilson propo5ed budgeted to recelle $ 2 r n ~ l l ~ ofor cuttlng the C a l ~ f o i n ~Dep,lrtment a of Educcit~on(CDE)t o '$16 mill~on'11111uall.i for local p i o g ~ a m s,111d state a c l m ~ n ~ s t r ~ ~ tdioonn n, from %;h 1111111on.In total, Wilson proposed t h ~the t or ei,ill Tohacco C ontrol P l o g ~a111 was t o recetr e onl\ ;o percent of the a! all,~bleHealth Educat~onAccount rexenues," or on11 about h peicent of tobacco tci\ rerenues (,IS opposed to the 20 percent specthed in Pioposit~on991. H e &I proposed cuttmg the research program 111 half, t o less than 3 percent of t o h ~ c c otax re\ enues ('is opposed t o the 5 percent specified m Pioposmon 99).1° The major beneficial ~ e of s the g o ~ e r n o r ' scuts in the antt-tobxco programs mere 1' new permatal Insurance program c'illed Access for Infants and hlothels h ~ c hn o u l d get S90 iuillion, $ 50 imllton of w h ~ c h mould come tronl the Health Education Account, and CHDP, which c+ould he incl-edsed from $20 m~llionto '$4; r n t l l ~ o n .h~I h l p r o i ~ d e s medical c x e to pregnmt n o m e n and their r oung children bi suhsldiz~ng prtr'lte lnsurdnce coieiage. Because XIh1 pars a h g h e r re~rnhursernent r'lte to pro\~idesst h m does MedlC a1 ( C c ~ l i f o r c~ersion ~ ~ c ~of' ~LMed~caid), it 1s more p o p u l x n ~ t hmedical proriders and more eupensi\e than Med~Cal."

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The March 2 6 , 1991, issue of Capital C o ~ ~ e s p o ~ ~ d ethe n c eALA's , newsletter to activists, ~ ~ r g ethem d t o support AB 99 as it had been introduced by Isenberg, with across-the-board reductions, which meant continued support for diverting Health Education Account funds into CHDP. Among the "mriting/speaking points" was the comment that "the provisions of AB 7 j (now AB 9 9 ) set forth a reasonable and fair system t o improve health care and health education programs."" The strategy of the voluntaries was t o move AB 99 through the Assembly and Senate 3s fast as possible so the Conference Committee could work at resolving differences among the groups and between AB 99 and the governor's budget. AB 9 9 passed in the Assembly Health Committee by a 12-0 vote o n March j, 1991, in the Assembly Ways and Means Committee by a 19-0 vote on March 10, and on the Assembly floor by a 68-0 vote on hlarch r 1." The health groups continued to ignore the original mandate for how the Proposition 99 money was to be spent, and they abandoned any interest in framing the issue as "obeying the will of the voters." Isenherg again chaired the legislative conference committee that was t o draft new legislation. The hill t o appropriate the Proposition 99 funds was AB 99. H e lvas joined by the other original AB 7 j Conference Committee m e n hers. A conference committee is very much an "insider" forum, often featuring bipartisan negotiation. When political parties engage in collusive or "bipartisan" policy making, especially when both are financed by the same special interests, the public is often excluded from the process, with n o knowledge of what is being done and n o chance t o influence it.L4 The voluntaries had thus agreed t o a fast-track process that gave them limited power. By sending the bill t o a conference committee, tobacco control advocates lost the advantage of public debate and review, their chief source of power t o protect Proposition 99. T H E T O B A C C O INDUSTRY'S STRATEGY Within R J Reynolds, the governor's budget was welconled as "the first positive news xve have received relative t o diverting funds from the Proposition 99 Tobacco Education Account."" According t o a company memo, "I11 view of Governor Wilson's action, we anticipate 3 funding frenzy developing on the part of counties, health gl-oups, and others t o divert even more of the funds."" An RJ Reynolds strategy memo of January 29 viewed the governor's

190

Continued Erosron ot the Health Educat~onXiiount

budget as 1' \\mdo\z of opportunity a n d discussed \ \ h a t the company could d o t o " p r o h ~ d eleg~slatorsw ~ t han a d d ~ t ~ o reason nd t o support the G o ~ e r n o r ' sproposed budget s h ~ f t . "I h T h e compmy's l e g ~ s l a t ~ vstrategF e was tmwfold: pro\ ~ d the e Legislature w t h evldence that J budget shlft h d e s ~ r e sof voters" and would not "matewould be "cons~stent11~ t the rially undermine the state's overall s ~ n o k i n gand health efforts given illdustry and RJR initiated p r o g r a n ~ s . " ' ~The memo reported on a conipany survey showing that only 3; percent of voters believed the media campaign was effective and that 3 7 percent felt they learned nothing from the ~dvertisements. The ~ n d u s t r ) also explored the f e , ~ s ~ l A tof y s h ~ f t l n ganti-tobacco education money away from the anti-smoking advertising campaign and into the schools, which the industry considered less threatening. The RJ Reynolds memo observed, "School education and increased parental involveriient are seen as the most effective ways t o discourage underage smoking-3 yn% and 19% respectively. While this does not speak directly t o Prop 99 advertising, it does speak t o the importance of 'traditional' forms of e d u c a t ~ o n . " ' The ~ plan m 7 a 5 t o mount 1' c r e d ~ b l ecampalgn t o demonstrate that the industry could handle the youth issue itself, because "~lnderagesmoking is ~videlyperceived as the most critical problem and single largest impediment t o industry credibility." However, the memo concluded with the comment that "any credible attempt t o address the j o u t h smokmg issue must d u d e ,I schoollyouth group program glven p u b l ~ coplnlon on the ~ m p o r t a n c eof school educat~on."

THE FINAL N E G O T I A T I O N S By June 1991, the ChIA's hoard of' directors had endorsed a resolution supporting the governor's proposed reallocation from the Health Education Account t o AIM, thus ending any pretense t o preserve the status q u o . They also supported the reallocation of money from the Physician's Services Account t o AIh1 because those funds "\vould be used for insurance programs that are likely t o pay much higher reimbursen~entlevels t o physicians than the rnasinlunl of j o % of amount billed that is authorized under Prop 99. There are also significant surpluses being accumulated in Prop 99 Physician Service Accounts ~ v h i c hare dedicated t o paying tor emergency, pediatric and obstetricd services."'On June 13, 1991, Senator D i m e Watson wrote t o the Legislative Counsel, the Legislature's lawyer, asking whether Health Education Xc-

Continued Erosion of the Health Education Account

191

c o u n t monies could he used t o f u n d t h e n e w ,UIM p r o g r a m for e x p a n d e d m e d ~ c a la r e f o r l o w i n c o m e w o m e n . T h e L e g & t ~ \ e Counsel r e p l e d t h a t P r o p o s ~ t i o n9 9 specifically limits the use of the funds in the Health Education Account for progs,ilns for the prevention and reduction of tobacco use, primarily among children, through school and co~ntnunityhealth educat~onprograms. . . . Tl~erci ~ t r ~ dcannot s he med fi1r pttrposes other t/~Lzr~ ~ ~ O S I U I I I fS i ~ rthc prc3O A program for eupanded prenatal care z ~ r ~ t im o id~redtt~tionof ~ U ~ ' I C Cme. is not a program for the prevention and reduction of tobacco use. through \chool a n d cornmunit!. health educ,ition programs, exccpt to the extent that the pr-ogr~rn~niglitinvolve education to prevent 01.reduce the use of tobacco by pwqxctivc parents.'~emphasis added] T h e I.egislati\,e Counsel advised t h a t t h e Legislature could divert H e a l t h Education m o n e y t o medical services only by returning t o t h e voters with a nerv statute; a four-fifths vote of t h e Legislature w o u l d n o t sutfice because such diversions were n o t consistent w i t h t h e intent of Proposition 99.1q T h e l e g l s l a t ~ ~process e w a s n o t d ~ s t u r b e db\ thls legal opinlon pronouncing the d ~ r e r s i o n sillegal, n o r b l subsequent opinlons requested b~ Isenberg a n d E h ~ a b e t hHlI1, t h e L e g ~ s l ~ l t ~XaIeI J I ) ~ ~ X' . ~T" h e CMX, t h e Western Center f o r Law m d Pokert!, t h e C a l ~ t o r n Nurses ~,~ Assoc~ation, a n d C A H H S w r o t e t o t h e Conference Cornnuttee o n June 30, 199 I , suggestmg language t o strengthen t h e rationale f o r f u n d m g A I M t h r o u g h t h e H e a l t h E d u c a t ~ o nAccount. T o m a k e these m e d ~ c a pl r o g r a m s ~ p p e a r t o he anti-smoking educ'mon programs, the o r g a n ~ z , i t ~ o w n sm t e d t o a d d t h e clause " H e a l t h E d u c a t ~ o nServices, s m o k ~ n gp r e ~ e n t ~ o ann, d n h e ~ c appropriate, s m o k m g cessation servlces also shall he required." T h e \ o l u n t , l r ~ e s ended u p supporting the d i ~ e r s ~ o~nn t oAIh1. T h e AI h argued, a s ~t h ~ ddo n e w ~ t hC H D P , t h a t ~t \ v o ~ ~ lbe d "'1 o n e - t m e gr'lnt o t $ 2 7 m1111(1nt o p r o w d e t o h x c o related services t o t h ~ p\ o p u I , ~ tion. A u t h o r i ~ a t ~ oofn AIM Incorporates m d specifies t h e s e r v ~ c e st o be p r m i d e d . We helieve t h ~ w s ~ l be l '1 o n e time allocation." " Both t h e XLA s newsletter m d ,111 earher A c t ~ o nAlert sent f r o m all three L o l u n t a r ~ e em-

With the support of some important allies, the tri-agencies developed a counterproposal to the governor's AIM proposal. Our proposal honorq the governor's desire to provide perinatal care to low-income women, yet most importantly, presents an alternative funding mechanism \vhich does rzot i r ~ u p s c Erlltsatiorz Ascorfrzt rmnies. Our proposal propriiztel!' or dlegi7lly ~ ~Heizltli

792

Continued Erosion of the Health Education .Account

provides a coordinated a n d integrated approach t o a perinatal communitybased program u.it11 a n anti-tobacco health education component.'; [emphasis in original]

In ,ldd~tion,the \ 01~11ltar~ health agencies contmued t o \upport t u n d ~ n g tor CHDP. The XLX newsletter summmzect t h e ~ rposltmn: Our agreement also cornnlitted us to support the full caseload of serlices t o young children in the Child Health and Disability Program (CHDPI. V17ehave in the past. sponsored most of this service ( $ 2 0 million annually) in order t o provide anti-tohacco services and referrals to these children and their families. O u r expanded C H D P r e ~ p o n i b i l i t i e sare expected to total $; j million :I year. This is a n ongoing conlmir~nent,though AB 99 required much c l o ~ e r auditing of the CHDP program in order to assure that needed serl-ices are heing provided.;'

The w.tement is noteworth) In ~ t reference s to CHDP '1s "an ongoing cominitnlent" and In its reference t o CHDP funding as "our expanded CHDP respons~b~lit~es," ~ m p ing h an 'qyeernent that CHDP would be a Health Educat~onAccount expense. The 1 oluntaries agreed t o the d ~erslon r on June 3 0 . John M ~ l l e later r recalled that, durmg the negotiations, "the l e g ~ s l a t ~ leadersh~p re came d o n n o n me and demanded that I gl\e up $ 2 0 mill~on,and I looked at the program and figured, 'What can I give up that's least harmful?' And I came up w ~ t hLocal Leads because the\ weren't al\\a)s the wonder bo\s me all t h ~ n kof them non." " The Sacranlento ins~dershad heen leer\ about giving Inone> to the local lel el in 1989 under AB 75 and were millmg to reduce t h e ~ rt u n d ~ n gno\\ t o get a compromise. The tolxcco ~ n d u s t rn~o u l d not ha\e objected. The local programs n e r e costlng the ~ n d u s t nconsiderable time and mane\, and stopplng the local progt ams had already become an ~ndustr! prlorlty.

The leg~slatureeventnall\ adopted A B 99, n h ~ c hauthorized expendltures trom the Health Education, P h ~ s t c i a nSellices, Xledlc,tl S e r ~ ~ c e s , and Unsllocated Accounts untd 1994. The final lersion of the b111 dlverted increasing amounts of Health E d u i ~ t ~ oAccount n monev m t o medical services. The Legislatuie took $ 2 7 rn~lllonout of the Health k , d ~ ~ cation Account for the AIhl progrdm, and CHDP's budget went from $ 2 0 rnill~onto $ 3 j mill~oila \ear. In a n actlon t h ~ \\as t t o haie a major ~ m p a c tat the local lecel, the LLAs wele requ~redt o spend one-thnd of

Continued Erosion ot the Health Education Account

Tc);

their allocation on perinatal outreach progrnnis in their counties. Known as Comprehensive Perinatal Outreach ((;PO), this county-based program identifies pregnant women w h o should be receiving medical care and brings them into the medical care system. The program itself does not ofier any services; it merely performs outreach activities. XI1 three of these progranis-AIM, CHDP, and CPO-were supposed to have a tobacco education component. The closest any of them came t o meeting this requirement was a CHDl' form with three questions about tohacco use. The voluntaries supported using some of the LLX money for outrench to psegnant women "in exchange for the provision of anti-tobacco education." 'l But C1'0 did not provide anti-tobacco education; it took LLX money that had been used to deliver tobacco programs and shifted it t o a n outreach efiort (like AIM) that would bring women into medical set-\.ices. The immediate result was fewer tobacco programs because of thc redirection of LLA funds; there would be fewer still if AIhl needed mol-c money, because AIAl had "protected status." The protected status stemmed h o n l another move that would have a major impact on the anti-tobacco education programs. A clause known as Section 43 was added to AB 9 9 t o guarantee funding for five medical services programs-XlediCa1 Perinatal Programs, AIhl, the Xlajor Risk hledical Insurance Program (hIRI\II1'), CHDP, :and the County Medical Services Program. Thus, these programs were guaranteed money "off the top" to fund them in the face of declining revenues; the other Proposition 9 9 programs were cut to support the "protected" ones. This provision, combined with the overall decline in I'roposition 9 9 revenues because of its success in reducing tobacco consumption, promised to wipe out the anti-tobacco education programs over a period of a few years. Neither the voluntaries nor hliller noticed the Section 43 language when it \vas added. When they were later interviewed about AB 9 9 , hliller and Najera both expressed bitterness about Section 43. According t o Miller, "The Section 43 crap . . . we a11 come to agreement, we divide the money up, we settle it all. The bill goes out to print, and it's before the Legislature, it goes most of the way through the system a n d Department of Finance said, 'Oh, oh, one little thing more. We need to stick in this provision to protect it or the Governor doesn't go along wit11 this deal.' We look at it and it says, 'We need to tinker with the numhers to make it come out right. We need t o protect some PI-ograms.' Oka!,, d o it.') X Najera added, "We didn't understcind what Section 1; was until

194

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after it happened and the Department of Fmance started conilng after that. . . . It lust h'lppened, ~t ~ ' 1 sjust one t h ~ n gthat Ivas t h r o u n In there." " The voluntaries were at a significant disadvantage in staying abreast of important technical details like Section 33, especially compared with the i n e d ~ c , ~care l groups, hecause of the size a n d depth of their lobh) ing staffs. Proposition n a s generatmg around $500 n i ~ l l ~ oa n)ear, ~-n,lkmg the \ o l u n t , ~ rhealth ~ 'Igencies major st,~keholders,hut the) had not e x p m d e d theii polic\ anal1 s ~ capab~lities s or l o b h ~ ing presence in Sacr'lrliento smce the p a s a g e ot I-'ropos~t~on 99. T h e devastating long-term effects of Section 43 emerged from policy research and m,llysis a t UC San F r a n c ~ s c o . ~ Atter the go\ernor s ~ g n e dAB 99, ALh's newsletter announced, "We 'ire pleased t o comrnunlcate t h ~ all t the Health E d u c a t ~ o nPrograins 'Ire in place, f u n c t ~ o n ~ nand g ,luthor~zedfor three more ,ears." T h e rn'lln X irtues of AB 99 n e r e that the sunset date \\as three !e x s ~ n a ! , and, according t o the Los Atzgrles T m e s , the Wilson admin~str,lt~on had prom~ s e dN,~jer,lthat ~tn o u l d not t r ~t o d11ert m y more funds for a t least the next three )ears In exchange for the deal.'" The ALA's o p t l m ~ s t ~st'xtec ment, h o u e ~ e rm , ~ s k e dJ d~fferentreality. R d l e r than the status yuo that the v o l u n t , ~ r ~ expected es when the! ,111oned AB 99 t o be handled through nt the Conference Cornnuttee process, AB 9 9 represented s ~ g n ~ f i c a dClm'lge t o P r o p o s ~ t ~ o9n9 anti-tobacco e d u c a t ~ o nprograms. In I 991- I 992, of the $151 r n ~ l l ~ oan\ a ~ l a b l e111 the H e d t h L d u c a t ~ o nAccount, onlb ~ ) actua1l.r going t o tobacco pre1entlon pro,ibout halt ( $ 7 8 m ~ l l i o iwas grams. The voluntary he'tlth q e n c l e s had completely c , ~ p i t u l ~ t ctdo the nied~calInterests. In doing so, thev '~bandonedt h e ~ strongest r ,~rgument: that the 1eg~slaturehad m obligat~oiit o appropriate P r o p o s l t ~ o n9 9 Health E d u c a t ~ o nfunds tor mtl-tob'lcco e d u c a t ~ o neftort5 '1s directed by the voters. Inste'ld, the! ,~cceptedthe reality of ~ n s ~ d horse-trad~ng er over the budget.

THE G O V E R N O R T R I E S TO KILL THE h l E D I A C A h l P X I G N Governor 7LV1lson finall1 ga\ e the t o b x c o i s ~ I u s t r \\vh,it ~tw ~ n t e d~nJanLurv I 992: he shut domm the m e d ~ c, ~ l r n p l g n . Although W ~ l s o nhad ~ n c l u d e dthe n ~ e d c,Impalgn ~a 111 h ~ lsc ) g ~ - - l c ) 9 ~ budget, he imposed ~ n c r e a s ~ n g tl )~ g h pol~tlcal t control over ~t as h ~ first s ! e x 111office unfolded. Xccordmg t o Ken IGzer, d ~ r e c t oof r DHS, the GO\ ernor's Office ~mrtied~atelv w,inted the a d ~ e r t ~ s e m e ntoned ts down m d

Continued Erosion of the Health Education Account

195

even started to review them." DHS was no longer able to operate free of political interference in mounting its effective campaign to reduce tobacco use. In his budget for the 1992-1993 fiscal year, released on January 10, 1992, Wilson went one step further and eliminated the media campaign entirely.'Woreover, rather than waiting for the Legislature to act, the governor had already ordered DHS not to sign the just-negotiated contract with the keye/donna/perlstein advertising agency, which had been going to continue the campaign on January I, 1 9 9 2 . ~ ~ 3 . " ~ The media campaign went dark. Dr. Molly Joel Coye, whom Wilson had appointed to replace Ken Kizer as DHS director, defended the decision to kill the media campaign.."' Coye was a dramatic change from Kizer. Whereas Kizer had been a strong program advocate and defender, Coye was not; she followed the governor's orders and remained aloof from the tobacco control community. According to Jennie Cook, "Molly was different. You could never get an audience with Molly. She was never available." Coye vigorously pushed the administration line that the local programs funded by Proposition 99 were a more effective use of resources and that the smoking decrease following the beginning of the media campaign was actually part of a trend that began in l 9 8 7 rather than the result of the anti-smoking advertising campaign.43-" In an opinion editorial in the Sacramento Bee, Coye claimed that "the revenues from Proposition 99 are being diverted for only one reason: to cope with the worst budget crisis in California's history. . . . If the tobacco industry is pleased with this temporary shift, it couldn't be more wrong."" In fact, when the media campaign was suspended, the decline in tobacco consumption slowed. While Governor Wilson justified the decision to eliminate the media campaign by pointing to the state's fiscal crisis, no one in the public health community believed him. Assembly Member Lloyd Connelly (DSacramento), the primary legislative force behind the original Proposition 99, expressed a view that was widely held within the public health community: "During the Proposition 99 campaign and the intense negotiations surrounding the implementation legislation, the provisions most virulently opposed by the tobacco industry were those that created the Health Education Account, including the enormously successful TV and radio antismoking ad campaign. Can it be just a coincidence that-after being wined and dined by the tobacco industry last summer-that it is precisely that account which has been gutted? I do not think so."20

"

196

Continued Erosion ot the Health Education Account

The governor was, in fact, more interested in killing the media campaign than in weighing how the money was being spent. At a hlarch 16 hearing o n the budget, held by the Senate Budget and Fiscal Review Subcommittee o n Health, the Legislative Analyst indicated that the proposed diversions were inappropriate uses of the Health Education monies and that only the voters could make that real10cation.~-The governor then proposed t o shitt the money t o an AIDS testing program, perhaps hoping t o enlist the AIDS lohhy in the effort to kill the media campaign. In response, the XLX claimed that "the Governor's real agenda was not t o fund needed programs but t o gut the media campaign in whatever way possible."" Kathy Dresslar, an aide t o Assembly Member Connelly, agreed: "The fact that the governor has changed the reason why he wants to divert funds from the media account suggests he is less interested in health priorities than he is in gutting the media campaign." "l In any event, both the governor's action and the justification for eliminating the media campaign effectively implemented the tobacco industry's plan, dating from 1990, to work with a variety of minority groups, hospital groups, the ChlX, and business groups to divert money from the media program into other health program^.^' The tobacco industry publicly endorsed the governor's action: the Associated Press reported that "Tom Lauria of the Tobacco Institute, the industry's lobby, applauded the proposed elimination of a campaign that 'focused primarily on ridiculing industry . . . and basically put smokers in a had light.'" '" In addition to citing the state's fiscal problen~sas the reason for suspending the media campaign, the administration claimed, without presenting any evidence, that the campaign was 3 waste of money because it did not work and that it was of "secondary" importance. These claims about the media campaign's lack of importance and effectiveness were contradicted a few days later when John Pierce, a professor from the University of California at San Diego, released preliminary data from the California Tobacco Survey ( a large statewide survey conducted under contract to DHS), of which he was director. Speaking at the XHA Science Writers Conference, Pierce said that the survey results demonstrated a 17 percent drop in adult smokers between 1787 (the year before Proposition 99 passed) and 1990. In 1987, 26.8 percent of adults smoked, compared with 22.2 percent in 1790. Pierce attributed this drop to the combined effects of the tax, educational efforts, and the media campaign."." Since the media campaign was the only part of the California Tobacco Control Program that rvas active during most of this period, Pierce identified it as the primary factor in this rapid fall.

Continued Eros~oi~ of the Hedth Education Account

197

Pierce's report made headlines. The Satz Francisco Chrotzicle proclaimed, "Anti-Smoking Program Big Hit-But Governor Seeks to Cut It."-" Other major newspapers gave the study's results prominent coverage: "California Push to Cut Smoking Seen as Success" (Wall Street Joz4rnd); "Anti-Smoking Initiative Called Effective" ( Washington Post); "Anti-Smoking Effort Working, Study Finds" (Los Angeles Times); Rather than claiming "California Smokers Quitting" ( U S A credit for this stunning puhlic health success, the Wilson Administration attacked Pierce's result, claiming that the conclusions were overstated.4;.'h.'- DHS's new spokeswoman was Betsy Hite, who had been one of the original advocates for Proposition 99 when she was the ACS lobbyist; now she vigorously defended eliminating the media campaign. Hite pressured TCS staff members to falsify data about the effectiveness of the programs in support of the administration's claim that the media campaign was not responsible for the state's decline in tobacco consumption. Hite told Jacquolyn Duerr, then head of the TCS media campaign, to back up Hite's assertion that the smoking decline had nothing to do with Proposition 99. Duerr and Michael Johnson, the head of DHS's evaluation efforts, and Pierce's contract monitor, refused to comp l y % . ~ Duerr ~ wrote Dileep Bal, the head of the DHS Cancer Control Branch (which includes TCS), saying, "I want you to know that this is some of the most unprofessional behavior I have experienced in my state service tenure"; Johnson wrote, "I hope that something can be done very soon to stop this falsification of results."

"

T H E FIRST LITIGATION: ALA'S LAWSUIT Shutting down the media campaign was too much for the ALA to swallow. In 1991 the ALA had been promised that, in exchange for accepting AB 99's diversion of funds, there would be no further diversions for the life of the legislation, which would not expire until June 1994. When asked why the agreements of previous years were not being honored, Kassy Perry, the governor's deputy communications director, responded, "That was last year. This is this year." '" Rather than allowing the media campaign to be shut down, the ALA filed a suit against Wilson and Coye on February 21,1992, arguing that by refusing to sign the contract with the advertising agency, they had violated AB 99, which said that the DHS "shall" run an anti-tobacco media campaign. Significantly, ALA did not challenge the diversion of funds on

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the grounds that this move violated Proposition 99 itself. Bringing such a case might have been difficult since ALA had agreed to the diversions. Neither AHA nor ACS joined ALA in its lawsuit, although ANR attempted to file a friend of the court brief. ACS was willing, if asked, to state privately its position that the cuts were illegal and a flagrant violation of the will of the people, but it refused to join in the suit. ACS thought it could achieve more working behind the ~cenes.'~) This view was surprising, since the evidence to date had indicated that health groups won in public venues and lost behind the scenes. Jennie Cook, ACS lobbyist Theresa Velo, and AHA lobbyist D i m Kiser met with Bill Hauck, the governor's assistant deputy for policy, and Tom Hayes, the director of finance, while the lawsuit was in progress. Whereas ACS and AHA wanted to talk about the anti-smoking program generally, the administration officials seemed to care only about the lawsuit. According to Cook, "The first item on their agenda was the lawsuit. After we explained that our two organizations were not involved, the mood instantly changed and became much more positive." Cook, Velo, and Kiser attempted to discuss the merits of the program, but Hauck and Hayes wanted to discuss budget problems. Cook continued, "They expressed concern regarding the media's interpretation that the Governor is proposing this [sic] cuts for the tobacco industry. They asked our organizations to help clarify these erroneous statements." The ACS and AHA did not do so. Hauck and Hayes apparently recommended that the ACS and AHA representatives talk to Russ Gould, the secretary of health and welfare. They did so, meeting with Gould and Kim Belshe, the deputy secretary for program and fiscal. (In 199 3 Belshe would be named director of DHS, where she would be responsible for implementing Proposition 99. In 1988 she had been a spokesperson for the tobacco industry's No on Proposition 99 campaign.) According to Cook, "We informed them that we are not involved in the pending lawsuit, at which time their apprehensions dissipated."" As Cook reported to the ACS leadership, Gould explained California's fiscal dilernma and assured us that all accounts were looked into along with the Proposition q q accounts. The decision was made to preserve only direct service funds (i.e., community-based programs). They felt that while the media campaign is a worthwhile program it does not provide direct services; same for the education and research accounts. They went into some depth explaining the devastating cuts they have to make and that they are uncomfortable with having to make these choices. They asked for an opportunity to reach out to our organizations to explain

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199

the tight spot that the State is in at this rime. Gould offered to attend an XCS Board of Directors to do lust that. Finally. \\.c requested that we keep an open channel of communication ivith the Agency through one knowledgeable ~ndividual.They hoth i~ldlcatedthat Kelshe would fulfill that role; Belshe invited us to call her to discuss the i s s ~ ~ e on a n on-going basii. In conclusion. rhls meeting was very productive in establishing a dlrect line of communication nit11 the Health & Welfare Agcncy."l Administration officinls were happy t o com~nunicatewith XCS and XHA. But the c o m n ~ u n ~ c a t i odn ~ not d lead t o a n \ p o l i c ~changes. K7hen asked III 1998 ahout A O ' s decismn not t o loin the I y y r XLX la\\ s u ~ t , ook, u h o wa\ h\ then the n ~ t i o nc~h~a rl of the XCC tmlrd ,111d the c h m oi T k O C , s a d , "Cancer and Heart \vere still a little t m i d t o get m t o l a n s u ~ t s Lung . led the U ar and I thmk the fact that Lung \\oil ~tU it11 n o real big problem m,lcte the other tv7o tee1 t h ~ t 'maybe , ~ t ' stlme \ve spoke LIP.'It w'isn't that we drdn't wrClntto, ~ t ' sjust t h ~ - t h e old S J ing about, '\be n e r e using p ~ ~ b l funds lc , ~ n dwe telt that that's not u h , i t the p u h l ~ cgel\ e u \ inone) for \vas t o sue tlie goaernor.' l o d a \ , ~ t ' sa l ~ t t l e d~tferent[l~ughter]."-"In 1992 ACC w ~ usn w d l ~ n gto confront the WIIson , ~ d m i n ~ s t r ~ ~111 t i ao np ~ ~ bforuni l ~ c whe~ e the ACS's hrgh p u b l ~ ccredilxlrt~g a e ~t strength. Cook coinmented that ACS's preference w ~ tso a l o t d confrontat~on,t o "mmeuver ~ t c, o n s d e r rt, t ~ l k~t out, be d ~ p l o mltic. \Ylh~tn e d ~ s c o ~ e r e1sdI\ here tobacco is concerned, o u can't be that n a\."-" On X p r ~ 24, l ~ 9 9 2the , ALA n o n 111 court \\ hen Judge J'lrnes Ford ot Sac1 arnento S u p e r ~ o rC o ~ ~ruled r t t h ~Wdcon t did not h a \ e the a u t h o r ~ t ~ t o t'tke funds , ~ p p r o p r ~ a t etor d one purpose and use them for another; e d the a u t h o r ~ z e dnied~,icarnp'llgn. Ford ordered that the mane! be ~ ~ s for The b ~ gquestlon tollowmg the ALA Ictorl \va\ whether the governor would appeal the Supenor Court's decrsion. An appexl would freeze the s t ~ t u qs u o a n d keep the i n e d ~ c, ~a n i p ~ ~ goffn the all. nhile the c,~sen u d e ~ t \\a\ s through the courts-poss~bh for a \ e a r or more. K'11son h ~ '~ppointed d hloll) C o ~ de ~ r e c t o rot health sel\ Ices, effectile h h \ 29, 1991. Under C a l ~ t o r n h~ ~ ,l she could serve for u p t o one ~ e betore ~ r she n,ls confilmed h i the Senate. If, h o \ \ e ~ e r the , Semte d ~ d not confirm her by the so-c,llled drop-de'ld dclte, she would have to leave office. Beecluse of: unreldted controversies, the S e n x e w'is t,il At her h l a \ h h e m n g C o ~ epledged, "I make the commitment a n d the Gokernor makes the c o n m i t m e n t . We d o not plan t o appeal the decis~on." The goxernor d ~ not d appeal the court dec~slon,Coye \vas confirmed, the media campalgn resumed, and tobacco c o n s u m p t ~ o nstarted t o d r o p agam in California. IS? the end of the 1993-1994 budget p e r ~ o d , C a l ~ f o r n ~ a nhad s consumed 1.6 b ~ l l ~ ofewer n packs of cigarettes (equaling $ 2 b1111on in pretax sales) than the\ would have ~f historical preProposmon 99 consuinption patterns had been mamtamed (figure I 3). T h e e p ~ s o d edemonstrated once more that the anti-tobacco groups exercised the most power in puhlic forums outside of legislative back rooms. In contrast t o the tobacco ~ n d u s t r ?and medical interests, w h ~ c h provide substantial campaign contributions t o politicians, the health groups get their power from public opinion and public pressure. ALA, which had led the movement t o work around the legislative process when it developed Proposition 99, once again succeeded by going outside the Legislature, this time t o the courts. AHA solidified ALX's victory by puhl~clyconfrontmg the a d m m s t r a t i o n over Coye's confirmat~on.Pro-

Continued Erosion of the Health Educatio11 Account

20 I

Figure I j. Impact of the California Tobacco Control Program on cigarette consumption through 1994.Passage and impleinentation of Proposition 9 9 was associated with a rapid decline in cigarette consumption in California. During 1991,the year that Governor Pete Wilson took the media campaign off the air and blocked many local progl-ams, the decline stopped. It resimed when the program started up a year later.

gram advocates would eventually use the courts a g a n to leverage the leg~slatlveprocess.

THE 1992-1 9 9 3 BUDGET FIGHT In his budget for fiscal year T ~ ~ Z - I L )released C ) ~ , in January 1992, Wilson again ignored the deal that he had made with the health groups l>!diverting the $16 million allocated to the anti-tobacco media campaign into medical care.;"."' He also proposed to eliminate the school-based anti-tobacco program^.'^ In the first attack on the Research Account, he ignored Proposition 99 and the implementing legislation (SB 1613) by cutting the Research Account from j percent to less than 3 percent of tobacco tax revenues. Like the other "temporary" shifts, the ones proposed by the governor in 1992 were part of a continuing downward spiral in the amount of money allocated to Proposition qq's Health Education and Research programs. The Budget Conference Committee agreed to $ 8 0 million of the $123 million allocation for education and research that the governor proposed

2.02

C o n t ~ n u e dE r o s ~ o not the Health Educatmn Account

to d ~ r e rInto t m e d ~ c a serklces l d u r ~ n gfiscal !eclrs I 99 I - I 992 m d 1992199 1 . The cuts for 1992-1 99 3 completel~e l ~ m ~ n , ~the t e d$26 ~ n ~ l l ~toro n s c h o o l - b ~ s e dprogr'lms, cut the med~,lc x n p x g n In h ~ l ft o $7 m ~ l l ~ o n , m d reduced the r e s e x c h p r o g r m ~In $12 mlll~on.'"The p u b l ~ chealth groups opposed these C L I ~ S . ~ The ALA 'isked ~ t attorne!, s George Wxers, tor J torrnal legal opmIon regarding the d l \ e r s ~ o n sof Health Educatmn m d Rese,irch money m t o medlcd senlces. In m eutenslve oplnlon that rn~rrol-edthose offered e a r l ~ e rb\ the L e g ~ s l a t ~ Counsel, \e W ~ t e r sa d ~ ~ s ethe d ALA t h ~ t such d ~ v e r s ~ o \rere n s ~llegal: We conclude that funds in the Health Educatmn and Research accounts cannot be used t o fund health care progr,lms. . . . The drafters of Proposition 99 ohviousl! paid a gre'tt de'll of 'ittention t o ho\v the Tobacco Fund \vould he divided up. T h e language is very specific. T h e intent of the clrafters. and by extension the intention o t the electorate, Lvas t o make a fixed percentage of the Tohacco Fund available for specific purposes and specific purposes only. This conclusion is buttressed h! the I'oterc P,lmphlet descr~ption of Proposition 99. The Voters P,impl~let1s a n a p p r m c d source for the determination of the I e g ~ s l a t i ~ Intent e behind 1' ballot measure. . . . [,lnd] cont'lins the follo\ving analysis of thc Legislat~\,eXn,dyst: The rne'1sul.e requires the revenues from the a d d i t i o n d rases t o be spent tor the iollo\\ ing purposes:

Given the a h o \ e , \ye 'Ire reasonabl! confident that \ve can \et aside in court any attempt t o use moniec in the He,llth Education , ~ n dResearch accounts for any p u r p o x s other th,un health education and r e s e a r c I ~ . " ~ l e ~ ~ p lin ~asis origind l

The XLX chose not to sue. Instead, ~t ~ m d m e o t h e r deal. O n Jul! 15, I 992, ten sen'ltors and t n ent\ -seven ,~ssemhl! members s ~ g n e d1' letter to Sen,~torAlfred X l q u ~ s t(D-S'in Jose), the Budget Conference C o m m ~ t t e ec h a r , protesting the comrn~ttee'sa c t ~ o n111 rcd11-ecting Health Education and Research monies t o medical service programs. According to the letter, the redirection of these funds violated the public trust, violated the constitutionally protected statutory provisions of Proposition 99, and would disrupt the programs \vrongfullp receiving the money when it had to be returned t o appropriate uses. On July 17, h o w e ~ e r ,the Budget Cornnuttee re,dirmed Its d c c ~ s ~ oton dlvert the mone) .6"

Continued Erosion of the He'lltll E d ~ i c a t ~ oAccount n

LO;

In opposing the diversions, the health groups created a procedural problem for the forces seeking t o dismantle the Health Education and Research programs. This issue had not come u p in earlier budget bills because the health groups supported the diversions; the associated legislation, passed by lopsided majorities, had gone unchallenged in the courts. The ALA had gone to court once-over the media campaign in 1992and won. This time, the health groups were opposing the diversions. O n h g u s t 7, 1992, Peter Schilla of the Western Center for Law and Poverty wrote t o Assembly Speaker Willie Brown t o urge him to separate the Proposition 99 diversions from the remainder of the budget on the grounds that it would he difficult to get a four-fifths vote on the entire state budget.? The budget needed only a two-thirds vote to pass, and Schilla and others ~ v e r earguing that the money could be diverted because of the language in the initiative that permitted the Legislature to enact amendments to I'roposition 99 by a four-fifths vote, so long as the amenclrnents were "consistent with its purposes." (Critics were arguing that any reductions in the Health Education and Research programs helow 2 0 percent a n d 5 percent would not be "consistent with the intent" of the initiative.) Brown followed Schilla's advice, removing the I'roposition 99 accounts from the budget bill and placing them in separate bills that would be easier to pass under the four-fifths requirement.-' In the end, the bills did not come t o a vote. The health groups agreed to a last-minute compromise in which most funding for the media campaign, competitive grants, and schools was restored. The LLX programs, however, took a major cut-from $24 ~nillionto $ I L n d l i o n . According to Najera, "In assessing where t o amputate, the politicians had t o make flash comparisons of the relative return between the different parts of the anti-tobacco program. One strong argument on cutting local leads was t h ~ i much t of the county funds were already spent o n direct medical services, and thus the loss of local funding was diminished by whatever amount went to non-tobacco services." 6' From the standpoint of a county's total revenues, this statement might hare been true. But the cuts to the LLX would not be offset by money for local medical services. Moreover, the requirement that one-third of LLX money be diverted into the C P O medical services program remained, which amplified the effects of the LLA cuts. The local programs mwuld he forced t o absorb large cuts just as they were hitting their stride. The LLXs were eventually rescued because of the fallout from an unrelated political battle between the Legislature and the governor over funding for community colleges. It turned out that the Legislature did not

204

Continued Erosion of the Hcrilth Education Account

need the Health Education money to pay for medical services; they instead diverted $IT million from the Health Education Account to community colleges. The governor vetoed this appropriation, and on October T , 1992, the Department of Finance issued a letter returning this money to CDE, competitive gsants, and the LI.As, as specified in AB q ~ ) . - ~ The attacks o n the LLX budgets in both 1991 and 1992, along with the 1992 attack on the media campaign, were consistent \vith the tobacco industry's strategy to reduce I'roposition 99's effectiveness. The LLAs were costing the tobacco industry time and money with their local ordinance work. Further, by educating minority communities about tobacco issues and hinging them into the tobacco control network, the LLAs and the competitive grants were weakening a n industry power base. The erosion of Proposition 99 continued. P O S I T I O N I N G F O R 1994 The continuing failure of CHDP and C P O to provide tobacco use prevention services was becoming an increasing irritant for tobacco control advocates. CPO was, in fact, mainly being used to get federal matching funds. At the county level, C P O programs were supported from two sources: Proposition 99 Health Education Account money and federal matching funds. This money had t o he used exclusively for outreach; none could be used t o deliver services. Counseling services, which included smoking cessation, did not qualify for federal matching funds. Dr. Rugmini Shah, the director of the state-level DHS hlaternal and Child Health (LICH) program, which administe!.ed CPO, defined outreach as "finding individuals who are not accessing services and bringing them into the service area syxem." Cessation classes could not be funded because "the women are already in here for the classes, so it's not outreach." -4 Thus, any Proposition dollars that generated federal matching dollars could not be ~lsedfor tobacco-related services. At the November 1992 T E O C meeting, the CPO program was on the agenda. TEOC \vas concerned that the money \vas being used illegally to meet a federal match for perinatal outreach services m d that the federal rules prohibited the use of state matching funds for any anti-tobacco activities.-' At the January 1993 T E O C meeting, M C H was able to tell T E O C that $7 million of the Health Education dollars given to M C H went t o the federal matching program and that only nine of the fifty-eight counties provided cessation training components.-h By the March 1993 ~

Continued Erosion of the Health Education i\ccount

205

meetlng, the dollar figure for matching had gone up to $8 million, w t h onl) $216,000 not q u a l ~ f y ~ ntor g matchmg funds. T E O C c h a ~ Carolyn r ,Cl,~rt~n called t h ~ s"a glgantlc r~p-offof the Health Educatmn Account dollai S." - h In contrast t o t h e ~ re a r l ~ e rpos~tions,the health groups and thelr repI esent,ltl\es o n T E O C were non7 openlv challengmg the appropriateness of usmg Health E d u c a t ~ o nfunds for m e d ~ c a lsenices. In s u b m ~ t t ~ nthe g I 99; -I 99 j hlaster Plan tor C d ~ i f o r n i n Tobacco '~ Contlol Program to the members of the Legislature, Cook and M a r t ~ nu r o t e to the leg~slators on behdf of the Tk.0C: We are p,lrticularly alarmeii by the fact that funding for the CHDI' Program contlnnes to expand, yet we have little idea of what CHDP is doing with these tunds and no evaluation of its impact. Ph!-siciclns in CHDP respond to three v ~ g u eand inexact questions related to tohacco use, second-hand smoke c11111 coun\eling. The data generated through this protocol is essenticllly useless. Improving the protocol, which the California Department of Health Service h ~ indicated s ~ t ~villi~lgness s to do, might help. However. to date as far as we can ,iscertain, despite the large funding provided to it, tb' C H D P Proglzzn~1 ~ ' ~ s c o l i t ~ . ~ h t enotl~ing r( t o t ~ b i z c c ocontrol. In nddition. the one-third of the money set aside in the Local Lead Agency grants for tobacco-related M/I,lternaland Child Health activities 1s bei~zgttscJ for oirtreach. uitholtt m)' t o h - c o eilztcrit~oncomponent, dcspitc the lcgrll requircnzent 111 P ~ o p o s ~ t i o9n9 tl1'7t fzt~zdsbe irsed onl>'. . . fijr pr09rm7s for prel~entionm d rednction of t o h m c o MC.-- /emphasis ~ d d e d ]

Tobacco control a d \ o c x e s were h e g ~ n n m gto be openl! crit~calof the dlversions from the Health Education and Research Accounts t o medical services. Coye resigned as DHS director in September r 99;. O n November 9 the governor named S. Kimberly Belshe as her successor. Although Belshi had been working in the administration since 1989, she was not a physician, as both Coye and IGzer had been. At thirty-three, she had worked primarily in public relations. More alarming to tobacco control advocates kvas the role that Belshe had played in 1988 as the tobacco inductry's So~lthernC a l ~ f o r n ~spokeswoman a a g a n s t P r o p o s ~ t ~ o99.-"elshe n defended her p a t assoclation w ~ t hthe tobacco ~ndustry,sa)mg that she had opposed Proposition 79 for fiscal reasons.'%er proposed appointment did little to reassure advocates of the Health Education and Research programs that they would receive the protection for which Kizer had fought. Her lack of medical credentials notwithstanding, the C h l A supported her appo~ntment.'~)

206

C o n t ~ n u e dE r o w n of the Hc~lt11E d u c a t ~ o nAccount

AB 99 contmued 111 force for the 199; - 1 994 budget \. e'lr, and the go1 ernor's budget for 1993-1994 cont,~medn o major r a ~ d so n the Health E d u c ~ t ~ oAccount n except for those r e q u ~ s e dby S e c t ~ o n43. S e c t ~ o n43, however, led t o three cuts t o the anti-tobacco progr,lnl during 19931994. Tax revenues ult~rn,ltel) fell b! 8 percent bet\\ een 1992-199 3 and 1 9 93-199.4, but expenditures for anti-tobacco education fell by ;T percent." The discrepancy bet~veenthe funding allocation in Proposition and the actual espenciit~lreof funds continued t o widen. \X7hile turning a blind e!-e t o the needs of the Tobacco Control Program, the Legislature acceded t o pressure from breast cancer research advocates t o increase the t a x o n cigarettes by t w o cents a pack. The new t a x funded a breast cancer reseclrch program administered by the University of California similar t o the Tobacco Related Disease Research Program. The tobacco industry did not seriously oppose this tax. Aside from the modest increase in price, it did nothing t o reduce tobacco consumption. It did, ho\vevei-, offer some political cover for Speaker Brown, Governor Wilson, and the CM;\ when they were criticized for failing t o mlpleinent P r o p o s ~ t ~ o9n9 as the votess ~ n t e n d e d . E \ e n though P r o p o s ~ t ~ o9n9 created J large con\tltuenc\ 111 the field th1-o~lg11the LLA\ m d l o c d co,il~tlons,these people , ~ n dorganlzatlons n e r e not m \ o l \ e d In the de'il~ngsIn S,~cr,lmentothroughout AB 9 9 . The S,~cramentol o b b ~ s t smade o n h a m ~ n ~ m effort al t o eng,ige these new p l ~ers \ 111 the legicl,lti~e process, a n d the loc'il , ~ c tists ~ \ \\ere preoccup~ed U it11 gettmg the mtl-tobacco p r o g r m l up and runnlng. According t o XNR s o - d ~ r e c t o rR o h m Hohart. There \vas still some bort ot incursions into the Health Education Account, hut the! s t ~ l lat , that point, wemed small and not n-orth spending the kind o f political c a p ~ t a tl h a you would h a w t o spend to deal with it. We were busy l hy that time in California and cmphapasbing hundreds of l o c ~ ordinances s i x d our role '1s helping the local lead q r n c i e s get their co;11itions in order and s t x t n-orking on grassroots organizing round local ordinance campaigns. We n e r e proluhl! doing trainings about e \ w y other month. especially \vhcre during the first t ~ v oy e x s , sometimes ~nultiplerimes in '1 month. ThC~r's a lot of our energy and empl1~1sisW J S going."

But the people 111 the field \i h o were ~mplementingthe Health Education progr;lm were growmg tired of the \\,l\ the inone) wns being t;lken awa) and tired of the rules under w h ~ c hthe> ~ v e r eforced t o oper'ltc. R I e a w h ~ l e n, o ' l n t ~ - s m o k ~ ncomponents g h ~ been d ' ~ d d e dt o C'HDP, C PO, o r d n r other he'ilth serl ~ c pe r o g r ~ m s hloreoler, . n o e v d u , ~ t i o n swere tor-

Continued Erosion of the Health Education Account

207

ducted to test whether CHDP, 0 0 , and AIhl h ~ ,in! d thing t o d o with tobacco control, desp~tepressure from TEOC clialr C'uolyn M a r t ~ n . T H E G O V E R N O R KILLS T H E KESEAKCH A C C O U N T In 1989 the Research Account had been authorized hy separate legisla. govtion, SB 1613, which did not expire until December 31, ~ 9 9 3The ernor had made several proposals t o reduce funding for tobacco-related research in his budgets, hut the Research Account did not surface in the battle over AB 99, which dealt only with the Health Education Account and the medical services accounts. In 1992 and 1993, Wilson tried to cut the Research Account hut withdrew the proposals when it became clear that they lacked support in the Legislature. As SB 1613 stipulated, the University of California managed the Kesearch Account using a peer review process modeled o n the National Institutes of Health. Applicants from qualifying public and nonprofit institutions (not just the University of California) submitted proposds for research projects that were judged and graded by committees of outof-state experts. The university funded the projects in order according to their grades. The university chose to define "tobacco-related research" broadly. As a result, most of the money went t o traditional biomedical research with little or no direct connection t o tobacco." The university's failure to concentrate more directly o n tohacco angered tohacco control advocates, who wanted a more tobacco-specific program. Some of the research ~ v a s very closely tied to tobacco, however, and became the target of attacks by the tobacco industry, its front groups, and their allies. In particular, Clantz had Lvon a grant in the first year of the progranl to study the tohacco industry's response t o the tobacco control niovement. This research had evolved into a detailed analysis of how the tobacco industry was working to influence the Legislat~lreas well as ho\v Proposition 99 was being implemented. With funding from this grant, Clantz and his coworkers published a series of monographs detailing campaign contributions to members of the Legislature and other politicians as well as documenting the erosion of Proposition q9 funding for anti-tobacco e d ~ c a t i o n . ; ~ ~ . " ' .The " J ~ monographs highlighted the diversions of Health Education Account funds to medical se~-vicesand the long-term implications of Section 43. These reports infuriated the tobacco industry, the Legislature, and

208

Contmued Eroslon of the H e d t h Educ,~tionXccou~it

the CMA. The industry and its allies vigorously attacked Glantz and his work as well as the University of California for funding the studies. They claimed that this work mas "politics" rather than "research," despite the politics that controlled passage of Proposition 79's implementing legisI a t ~ o nThe . reports that regularly documented the accelerating campalgn contributions to Assembly Speaker V17illie Brown particularly enraged Brown (who by ~ 9 9 had 3 received $474,217 in campaign contributions from the industry, more than any other state o r federal legislator). At one point Brown found himself in an elevator with the director of UCSF's Institute for Health Policy Studies (which \vas located in the same San Francisco office building as Brown's district ofice), and Bro\vn demanded that somethmg be done to sdence G l m t z . In a nleetmg w t h the university's vice president for health affairs, Colnelius Hopper, Brown again attacked Glantz. A journalist w h o was writing a profile of Brown observed, "One morning in 3 sudden burst of temper, Brown pitilessly dressed down t o p executives of the University of Californir~because a researcher at UCSF had written a report that Brown didn't like about the political influence of tobacco companies. The university officials had come t o see him on an unrelated matter, but the Spe&er used the opportunity t o launch his attack myLvay. 'You're going t o have trouble with me on eziery smgle appropriat~on!'Brown salcl, ~ ~ 1 b b i na ng mdex finger. 'If that guy gets one more cent of state mone), J ou'll 11,11e trouble 1 ~ 1 t hme!'" (emphasis In o r i g i n , i l ) . ~Hopper responded that the unlverslt) beliesed in academic freedom and would not interfere ~ v i t hGlantz's work o r the peer revlew process. The process o t reauthorizing the Research Account proceeded witho u t much public controversy during 1c)9j. There lvas some sparring between health advocates and univcrsit!- oficials in a n attempt to force the university to focus more specifically on scientific and policy issues that were directly related t o tobacco, hut the university successfully opposed this effort. Before SB I 61 3 expired o n December 3 I , 199 3 , the Legislature h'id unan~rnoush p m x d SB 1088 to contlnue the program unt11 1997. The go\7ernor surprised ever1 one when he I etoed the blll, statmg, " T h ~ sprogram should not be extended for four J ears when expend~ture authorit) for ,111 other Propos~tion~ ) funded q programs p e r t a m n g t o health and research ~villbe reviewed during the 1994 legislative session. T h ~ program s should be re\ ~ e w e dand re-e\ ,lluated In the context of ,111 P r o p o s ~ t ~ oqc) n tunded programs and actl\ ltles t o insure the inost effective use of those funds."

'-

Contmued k l o51o1iof the Hedth Educst~onAccount

2051

K'ilson's veto effectively shut down the research program. M a n y were suspicious that Wilson's action was making good o n Brown's earlier threat t o punish the university if it did not quiet Glantz. Ironically, hy the time Wilson killed the Kesearch program, Glantz was being funded by the National Cancer Institute, not Proposition 99. The governor's veto also meant that the funds allocated for research in the first six n ~ o n t h sof 19c)4-$21 million-suddenly became available for other programs. The Research Account money was soon put into play in a manner that \vould make it easier during the next legislative fight over Proposition 9 9 authorization t o divert the funds into medical services.

As rnernorles of the Proposltlon 9 9 electlon f'lded, leg~slatorscould more readily ignore puhlic opinion a n d the puhlic will unless the voluntary health agencies and other guardians of Proposition 9 9 found ways t o activate and use public opinion. Instead, the groups attempted t o play the insider game a n d were not successful. For five years tobacco control advocates, using an insider strategy, had tried t o protect their programs against the tobacco industry, the C M A , other medical service proviclers, the Western Center for Law a n d Pmerty, and the governor. T h ~ as p proach of uwrking w ~ t h ~the n Legiclature meant ,ibmdoning the health groups' most potent weapon: p u h l ~ coplnion. In general, the \ears of X 6 75 m d AB 9 9 xvere charxterlzed by a serles o f struggles testlng the resol1 e of the guardian groups a n d by their g e n e r d unwrll~ngnesst o fight back. During the period J L ) ~ o - T L the ) ~ ~Issue of money for health educatlon m d r e s e x c h 11,id mcreasinglv been framed as 1' budget b d e , n l i ~ c h n a i d a ~ n ~ ~ g for l n gthe voluntaq agencles trying t o maintarn these programs. Cal~fornia'seconomlc recession p r o v ~ d e da cover for those w h o ~ ~ m t teo dtake the money o u t ot the He'ilth E d u c a t ~ o nAccount. When Assembl! LMemher Richar-d I-stating the 4i local battles that the T.I. [Tobacco Institute] is fighting concerning smoking restrictions in California, and that they have dealt ~ v i r hthem b! compromise, not by killing them. Therefore, he of s ~ i z ~ ~k. ti~~s t~r i~~ tini ~the ns was tr>-ingto establish t l ~ cneed j%i.prctnrptro~~ statc of California and position, a t least his concurrence. with the need for a preemptive strike in the state legislature. . . . J o e I.ange reported on "where they are" and stated that whde there \yere some technicalities still open for discussion, he had done a great d e , ~of l work o n this matter. He stated Spe,ilzcr [Williel Brown and A~semblyman[Dick] Floyd visited a cigarette company in K e n York City last f ~ l and l met ~ v i t hthe key executives of that company. At that time the Speaker made clear i? sig~zificantly n7ore pro~zctil,e~ O ~ I L Z C CcO~ ~ n t rcoflo r t 14~114ld he nectled t o scsltrc prcemption. O u t of those discussions the notion of a comprehensive Tobacco Control Act (that n o u l d provide preemption) evolved. In order to gain preemption, the Speaker ivanted "a Cornprehens~veTohacco Control Act along the lines of the alcohol n~odel."The Speaker beliews the trick t o doing thi\ ,7ct ~ ~ w t lhii fr e to hiwe the "appeavnce" of a corm \vould he that sttch piehensit,e scl.wviie. Joe s t x e d that l e ~ d e r s h i pin both chambers are alvare of and support this effort. Joe s t x e d that the chances tor success, in his judgment are very good because the key players h n e all been involved. Howojjztc-sess depended upon the "perc.ept~on"that t11c act I ~ J S e x r , the cl~izl~c-es i o n ~ p r t ~ h c n s i.~.~. c . The conversation shifted t o Joe stating Speaker Brown and Chairman o l as c-lose m possihle Floyd would attempt t o n~aki.the k b x c u C o ~ ~ t r Act in "17ppem~zi1(.e"t o t11e concepts thizt t l ~ ennti-tohcc.o groups I I ~ P ~fostering. C Amxingly, that shuddering thought hL1d no iiiscussion." emphasis added] LIII

Whateler the Smokeless Tobacco C o u n c ~ ~ l i l t ~ n ~ adecided t e l ~ ahout Bronn's proposd, ~t 1s clear t h ~ the t clgxette companies norked to Implement ~ t On . J L ~ T T r 56 376 \\as amended to plopose n c a k preemp-

tive snloking restrictions following a Tobacco Institute draft. Brown was delivering for the tobacco industry. SB 376 cleared the Assemhly Government Organization Committee, a committee that had been historically friendly to the tobacco industry. The industry's effort was derailed when the Smokeless Tobacco Council nleino appeared mysteriously at the offices of the voluntary health agencies and several media outlets. The resulting storm of media criticism killed SB 37h.'2-'4 T H E VOLUNTARY H E A L T H AGENCIES ACCEPT PREEMPTION

In Februar)- 1992 Assembly Xlember Terry FI-iedman(D-Santa Monica), one of only 8 legislators (out of 120) \vho refused t o take tobacco industry campaign contributions and a supporter of tobacco control efforts in the Legislature," introduced AB 2667, a nonpreemptive statewide clean indoor air law that would have ended smoking in all enclosed workplaces. Friedman promoted the hill as an alternative to local tobacco control ordinances.'Because AB 2667 dealt with labor l a ~ Friedman , designated as the enforcement agency the California Occupational Safety and Health Administration (CalOSHA) in the state Department of Industrial Relations instead of the Department of Health Services (DHS). The voluntary health agencies-American Lung Association (ALA), American Heart Association (AHA),and American Cancer Society (XCS) -supported AB 2667, as did the California Medical Association (CMA) and the California Labor Federation (XFL-CIO).I-.'Wespite its lack of cnthusixm for state legislation on clean indoor air issues, Americans tor Nonsmokers' Rights (ANR) also supported Friedman's efforts as long as his bill did not contain language that preernpted local ordinances.'"."' Despite support for AB 2667, it had only a very slim chance of passing because the hospitality and tourism industries, not simply the tohacco industry, were unlikely to allow the bill to go Because the odds against the bill were so great, neither the state voluntary health agencies nor XNR saw any practical reason t o engage in broad discussions over the desirability of a state law versus local ordinances or the conditions under which preemption of local ordinances \vould be an acceptable compromise to obtain a state smoke-free workplace law. The prospect of enacting statewide workplace smoking legislation improved dramatically when Friedman negotiated support for his bill from the California Restaurant Association (CRA). The CRA was concerned

rlh

Battles over Preemption

about the growing body of scientific evidence that linked secondhand smoke with illness and the potential liability for tobacco-induced diseases through worker compensation and Americans with Disabilities Act claims." In previous years, the CRX board had taken the position that there should be a single statewide standard regulating smoking in all public places, including restaurants, and that the CKA would continue to oppose local ordinances due to concerns about unfair ~ o m p e t i t i o n . ~ ~ ~ , Because of the CRA's concerns about secondhand smoke, the organization was open to endorsing the Friedman bill. But it was unwilling to do so unless the CRA goal of a uniform statewide law was also met, and it made its support contingent on inclusion of preemption of local ordin a n c e ~ . 'Friedman ~ amended AB 2667 to include a preemption provision that would "supersede and render unnecessary the local enactment or enforcement of local ordinances regulating the smoking of tobacco products in enclosed places of e r n p l ~ y m e n t . "The ~ ~ CRA immediately endorsed the amended bill.2' This was the first time an important business lobby in Sacramento had supported tobacco control legislation; the coalition of health groups supporting AB 2667 were e ~ s t a t i c . ~ - . ~ " By continuing to support AB 2667 after it was amended to include preemption, however, the state voluntary health agencies adopted a position that conflicted with their national organizations' policies against preemption. In 1989, in response to preemptive legislation that had been proposed by the tobacco industry and enacted in a growing number of states, the national voluntary health agencies, acting through the Coalition on Smoking OR Health, took a strong anti-preemption position.'" It advised affiliates that "it is better to have no law than one that e h nates a local government body's authority to act to protect the public health" and suggested informing the appropriate legislator that "unless the preemption is removed from the bill . . . your organization can no longer support the bill."" Despite this national policy, the state voluntary health agencies and Friedman defended the preemption language by arguing that because the bill \vould make all workplaces loo percent smoke free, any local standard would be weaker, making the preemptiori issue moot."'-" ANR representatives, on behalf of many local tobacco control advocates, did not accept this compromise. They believed that local legislation was a better device to educate the public, generate media coverage, and build community support for enforcement and implementation of tobacco control ordinances.'" XNR also believed that any preemption

language would set a bad example for other states. kriedman's supporters countered that it \vould take years to advance the policv agenda on smoke-free workplaces in some parts of the state. More important, ANR worr~edthat b\ accepting preemption in pr~nc~ple, it would create a situation in w h ~ c hthe tobacco ~ndustrywould hllack the b ~ l land \teaken the tobacco control provisions while maintaining the preen~ption.;~ I11 deference to Friedman, however, ANR took a neutral position, stating its opposition to the preemption clause and raising coilcems about CalOSHA's ability to enforce the law effectively."' Trying to allay these concerns, Friedman modified the severability clause in the bill to limit preemption if the bill ~ v a sweakened: "In the event this section is repealed or modified by subsequent legislative or judicial action so that the (100percent) smoking prohibition is no longer applicable to 1' 11 enclosed places of employment in Cal~fornia,local goiernments shall hale the full right and authoritx to enact and enforce restrictions on the smoking of tobacco products in enclosed places oi emplo\ment wthin t h e ~ rl u r ~ s d ~ c t ~ o including ns, a complete proh~bltion of smoking."'" Friedman and the bill's supporters argued that t h ~ s language woulcf protect l o c ~ ordinances l because the preemption clause would "self-destruct" if future legislatio11 weakened the smoke-free mmdate. "' Friedman's attempt at conipromlse fell short, however, when in Apr~l he solicited an analysls from the Legdative Counsel regardmg the seherabil~t)clau5e. The Legislative Counsel concluded that the seherah~lity clause offered no legal protection because the current session of the Legislature had no authority to bind future sessions of the I.eg~slatul-e.'Ne\ ertheless, the state voluntary health agencies contmued to support the bill because of ~ t sloo percent smoke-free workplace mandate. Eben with the support oi the restaurants, labor groups, and \olunt,trv health agencies, AB 2667 failed to pass the Lahor and Emplo\,ment Coi11mittee in June 1992. T H E BIRTH OF AB 13 Friedman reintroduced AB 2667 as AB 1 3 in the next legislative session In December 1992, and ~t was assigned to Friedman's Labor and Emploxn~entCommittee in February 199 3 . The bill w'is cosponsored by the CRX, AHX, AFL-CIO, and CMA.3XThe AHX, ALA, and ACS supported the b~llbecause they wanted smoke-free workplaces. Groups

representing the tourism and hospitality industries and the Tobacco Institute opposed AB I;.'" XNR opposed the bill hecause of objections t o preemption. ANR lvas also concerned that CalOSHA ~ v o u l dbe a less responsive enforcing agency than locnl health departments or similar agencies that enforced local ordinances.-"' The anti-tobacco activist group Doctors Ought to C x e , the Cit)- of Lodi, and the California State Association of Counties also opposed the bill because of preemption.-"--'" Trying t o address XNR's concerns over enforcement, Friedrnan amended the hill to remove "appropriate local law enforcement agencies" (police) as the enforcement agency so that local health departments could enforce the latv, inclnding levying fines for violations.-'-' These differences of opinion still appeared moot. Despite the broadened support for the hill, it was still viewed as unlikely t o pass. AHA lohbyist Dian Kiser wrote her local affiliates, "Frankly, the chance of passage of AB 13, like AB 2667, is n~inuscuk."" Rather than treating preernption as a policy issue, supporters of the bill fell back on the argument that since AB 13 was " l o o percent smoke free," the issue of preemption was not important. AB r;, unlike AB 2667, passed out of the Lahor and Education Conln~ittee.Newspapen credited AB 1;'s passage out of committee to 3 1 9 9 2 EPX report on secondhand smoke as \veil as Governor Pete Wrilson's decision in early 1993 to end smoking in all state government h~~ildings."'~~' At the first hearing of the Ways and AIeans Committee, Friednian added txvo amendments in a continuing efiort to respond t o concerns about preemption and enforcement. The first clarified the sevcrahility clause to insure that, if: AB r;'s smoke-tree n ~ a n d a t e\vex \veakened, communities could pass and enforce future ordinances as \veil as erliorce existing ordinances. The other was his ~ ~ r u e n d m e ntot allow local governments t o designate n local agency t o enforce the law rather than specAB 1; was being considered by the Ways and ifying local p ~ l i c e . While ~" Means Committee, the League of California Cities, which had remained neutral on AB 2667, changed its position and announced support for AB I j on the gsounds that the bill \vould allow local governments to pass restrictions on tobacco in areas not covered by the hill.-'T H E T O B A C C O INDUSTRY'S RESPONSE: AB 996 The tobacco industry pursued three major strategies to counter AB I;. First, \vorking through its front groups (including the Southern California Business Association) and the California Manufacturers Association

(ot U h ~ c hP h h p ,Morr~swas 1' member), ~t lobbled ag'ilnst the bdl o n the S.~' grounds that AB I 3 would be detrmental to C ~ I ~ f o r ~nL~I~S iI I I ~ SSecond, the tohacco industry tried t o have the bill amended to weaken the s m o k ~ n grestrlctlons whde rnamtunltig the preemptlon, 1' 5 ANR feared and as ~t had done successfully m other states.>'" T h u d , the tobacco Industrx proposed a weak law t o compete w t h AB T 3 that would preempt local regulat~onof s m o k ~ n g . O n A ~ I - i19, l 199 j, Assembly Member C u r t ~ sT ~ ~ c k (D-Inglewood) er amended an unrelated bdl, AB 996, t o preempt all future tobacco control I ~ w s .AB 996 permitted smoking in workplaces when employers met the ~ . e n t ~ l , l t ~s toann d x d defined h\ Stmdard 62-1989 of the A n i e ~Ic m Soclet! of Heatmg, Refr~gerating,and Air C o i i d ~ t i o n ~ nEng~necrs g (ASHRAE), ~ l t h o u g hthe AIHRAE s t a n d ~ r dstated that ~tw ~ not s str~ct enough t o protect workers from secondhmd s n ~ o k e . ~The ' use of the ;\SHRAE s t a n d x d , w h ~ l esoundmg offic~nl,WJS d r e d ~mcorporated Into most b u ~ l d ~ ncodes g In the st'lte m d would h a ~ had e l~ttleeffect o n restrlctlng smokmg In the workplace. The tobacco mdustr) has hea\~l\. influenced ASHRAE over the years."' The tohacco industry also used AB 996 t o preempt emerging local ordinances restricting youth access to cigarette vending machines. Rather than eliminating vending machines as health advocates wanted, AB 996 proposed electronic locking devices that had proven ineffective in controlling !,out11 access.'l." AB 996 was assigned t o the Assembl?- C o n , b, Tucker, ~ z h e r e~t mlttee on Goternmental O r g a n ~ z a t ~ o nchatred passed b\ I' 9-0 late. The bill was then referred t o the Assemblp Commlttee on Wa) s and M e m s , where AB r 3 was also hemg cons~dered. AB 996 was supported bl the tobacco ~ndustryand ~ t cs ~ l l ~In e s the business community; it was opposed by the same coalition of health, local government, and business groups that supported AB I 3 in addition to those ~ v h oopposed AB 13 because of its preemption clause." The CRA opposed AB 996 because, in protecting current local clean indoor J I S l a n s with 1 ' grandfathe] clause, it would not lead to J u n ~ f o r msmoking pollcl around the state. The CRA 'dso feared that ~twould not protect lest'iurant on7ners from lawsu~tsand that the ASHRAE v e n t ~ l a t ~ o n s t a n d x d s mould be proh~hlt~.i.ely eupenslve for sm'111 resta~irmts." The ~ntroductlonof AB 996 changed the deb'lte o i e r state smokmg restnctlons. Prlor to AB 996's emergence as a competmg bill to AB I 3, medl'i coberage of AB 13 ~ncludedthe debdte among tohacco control , ~ d ~ o c ~ oler t e s the merits of AB I ; , particularly ANR's concern w ~ t h p r e e m p o n . When AB 996 started movmg 111 tandem with AB 13, me-

framed the debate as a good bill (AB I ;) !ersus 1' had h111 (AB 9 9 6 ) . Supporters of AB I ;were successful In garnering support for AB T; and opposltion to ,AB 996 from e d ~ t o r ~boarda al throughout the state. The fact that AB 996 preempted f u t ~ ~ local r e ord~nances\$,IS a n ~ m p o r t m tpomt ~n rLlll\~ngp ~ i b l ~opposltion c t o the b~ll.'-l'' Newspapers dexrlbed AB 996 as ,I blll whose real purpose lvas to prelent local communlt~eshorn appro\ Ing t h e ~ o\\ r n tough a m - s m o k ~ n gordinances. ~ I J .cmelage

THE V I E W FROAI OUTSIDE S X C R A M E N T O n slocal o r d ~ n m c e s The potential effect o f LABI ;'S precmptlon pro1 ~ s ~ o on created c o n t r o \ e ~sl , ~ n dconfusion among l o c ~ tobacco l control a d ~ o a t e s orer nhether to support the m e ~ s u r e Local . c o a l ~ t ~ o ncomposed s, of people from local d f i l ~ a t e of s the voluntar\ health agencles, local niedic ~assoclatlons, l d e p a ~tments of health, a n d m d ~ rdud actlr ists, reeelred Inconsistent ~ n t o ~ r - r i ~ ion t ~ othe n st'lte deb'lte oxer AB 13 and AB 996. K1hlle o p p o s ~ t ~ oton AB 996 \T as unanlmous, the s t x e ~ o l u n t a nhealth agencles urged s ~ ~ p p oorf t AB I ; hde XNR continued t o urge opposls non. Al,ln\ i n d ~ i ~ d u a\\l10 l s p a r t ~ c ~ p ~ 111 ~ t these e d loc,~lc o a l ~ t ~ o nmere niembers of both 1' ~ o l u n t a r rhealth agent! and XNR, and 50 mere recell Ing confl~ctmgactlon alerts h o r n d ~ f f e ~ e organlz'itlons. nt Some act11 ists at the local l e ~ e quest~oned l the effect ot AB r ;on local legisl,~t~on and r e m a n e d skeptical that 1' n o ~ k a b l ebdl ould emelge from the Leg~sLlt~n-e.' " Of spec~,llconcern \\as h o n the preeniptlon language mould atfect n o n n o~kplace p101 Islons ot local o ~ d ~ n a n c(such es a \ those rnand'lt~ng p u b l ~ ce d u c a t ~ o n 01 ) n o n r e t a l ~ m o nc l a ~ ~ s e( w s h~ch lth would protect e n i p l o ~ees n 110 conipl,med about noncompl~ance1% the smoke-free workplace recl~i~rement). Q u e s t ~ o n sfrom those communltles about AB 1 7 mere Interpreted h\ l o b b ~ ~ s at t s XLX and XCC as eiforts h\ AKR to u n d e r m ~ n ethe11 a u t h o r ~ t \ ,and the\ complamed of h a ~ ~ tnogdevote tlme m d resources to respond to w h ~ the$ t percened as XNR's m ~ s ~ n t e l p r e t a t l oofn the b111.'- ANR s,lv ~ t xs t ~ltles \ as 1' legltlrn,ite t m ~ rto present ~ t os p p o s ~ t ~ oton preemptlon to the people most dffected. l'' As controiers\ o \ e r the bill ~ n t e n s ~ f i eand d communication broke down between st'lte p l ~ers, \ ,l h o s t ~ l eexchange occurred, n ith local acti\ ists c ~ u g h In t the cros5 fire. O n e LLA d ~ r e c t o rl'lter descr~bedthe Xniosphere: " O h nit ( d . We \mere o n the record of t e l l ~ n gour c o a l ~ t ~ o n that ~tu as preemptlr e and that ~t as not 1' good thlng. And b e c ~ u 5 m e e had h ~ these d con\ ersatlons, some ~ n d r \duals \\rote letters. I got nastr

Battles o ~ e Preemption r

221

calls back from Friedman's office just saying, 'It is not preemptive! W h o told you this? That's wrong!' And they would call us. I mean these are individuals hvho English is not necessarily their first language who did not know how to, like, argue back. The whole process of that was real divisive." '-In a public demonstration of the growing conflict among fot-mer tobacco control allies, the presidents of the state voluntary health agencies and the ChlA circulated a letter warning, "ANR's opposition is unsound and could have dangerous effects." '"This letter was a modified version of one that Friedman had written to ACS earlier, cluiming that AKR authot-ed "a shocking opposition letter which seriously distorts AB I 3 ." ;"

L4i3 l 3 AND AB 996 O N THE ASSEMBLY F L O O R AB 13 and AB 996 were considered in tandem by the Assembly Ways and Means Committee. Although contradictory in intent a n d effect, both bills passed the committee, with several inernhers voting for both bills. The bills next moved t o the Assembly floor, where AB was amended o n M a y 24, 1993, to exclude hotel guest rooms from AB 13's definition of "place of employment." Since AB 13 preempted only local regulation of "places of employment," local governments would he permitted t o regul;ite hotel guest rooms. Both AB 996 and AB I; came to a floor vote in the Assembly on J u n e I , ~ 9 9 3 a, n d both failed. Just days later, AB 996 was taken u p rigain, while reconsideration for AB I 3 was delayed until the following week by a technicality. The tobacco industry's hill, AB 996, passed by a 42-34 vote. The Assembly members w h o voted for AB 996 had received a total of $964,740 (average $22,970 per "yes" vote) in tobacco industry campaign contributions during the years 197 j -1993, compared with only $ r93,567 for opponents (average $ j , 6 9 ? per "no" vote).]' Newspapers reported that campaign contributions from tobacco interests t o legislators kvere buying votes against AB r; and for AB ~)gh.".'"'" Friedman denounced passage of AB 996 as "an example of the absolutely disgusting power the tobacco industry wields in the Legislature." H) In the dehates over local tohacco control ordinances, it had become routine for the tohacco industry, acting through surrogates, to claim that smoking restrictions would cause economic problems. O n June 6, the day after AB 996 passed the Assembly hut before AB I 3 was reconsidered, several Southern California "business" groups, led by the Southern California Business Association, a group with tobacco industry con-

--7 7 7

Battles over Prcemption

nections, released 311 economic study hy the accounting firm of Price Waterl~ouse.~'."(Price Waterhouse conducts negative "economic impact" studies for the tobacco industry throughout the nation.) The study, sponsored by the San Diego Tavern and Restaurant Association, claimed that AB I 3 would jeopardize 82,ooo jobs in California and cost the state more than $5. j l ~ i l l i o n . ~ ' The CKA immediately hired another accounting firm, Coopers and L-ybrand, t o review the Price Waterhouse report. Coopers and Lybrand said the Price Waterhouse results were biased because the respondents had no previous experience with a statewide smoke-free law, so their impressions would not accurately reflect potential business loss." The survey also produced bias in its results by giving respondents misleading information regarding the scope of areas affected by AB 13. Coopers and Lybrand noted that Price Waterhouse omitted "a key conclusion, if not the key conclusion, that over 61% of respondents thought that there would be no impact or positive impact on sales from the proposed ban."" This prompt response by the CRA neutralized the effects of the Price Waterhouse study. AB 13 was granted reconsideration on June 7 and passed the Assembly with a 47-25 vote. Members w h o voted for AB 13 had received $3 6 3 , 8 r 3 in campaign contributions from the tobacco industry between 1976 and 1993 (average $7,741 per "yes" vote), and those w h o voted against it, $ 7 ~ ~ , 4 (average 05 SrX,q 56 per "no" vote).]' Friedman hailed his success as a "spectacular turnaround," attributing the change in votes to "the outpouring of spontaneous public support for AB I ; all over the state, and the outrage expressed hy the voters at the passage of the industry-sponsored measure.""' Several memhers of the Assembly expressed discontent nit11 both AB I; and AB 996, saying one hill was too strict and the other 1vas not strict enough, and voiced the hope that a compromise bill could be created in the state Senate or in a conference committee."" O N T O T H E SENATE

In the Senate, AB I; and AB 996 \\.ere assigned to both the Senate Health and Human Services Conmittee and the Judiciary Committee. AB 996 died in the Senate Health and Human Services Committee, chaired by Senator Diane Watson (D-Los Angeles), as a result of effective lobbying by tobacco control advocates and senators friendly t o tobacco control.

Tucker never brought it up for a Late, presum'ibl\ b e c ~ u s e~t did not h d ~ eenough iotes t o p,lss."- In ,I November l q g g memo, D a l ~ dLaufcr of P h h p h l o r r ~ snoted t h ~ itt \\as unl~keltthat the t o b ~ c c o~ndustrv could mo\e AB 996 out ot the Senate committee."' AB I ; p'lssed the Senate Health and Human Ser~lcesC o m m ~ t t e eon ~ t ssecond hearmg after bemg further amended to exempt hotel and motel lobbies, b x s and gm111ig c l ~ i l xand , some con\entlon centers m d \\aehouses. Once 'igan, these euempt~onswere created by cucluding these senues from AB 1;'s defin~tionof "p1,ices of en~plo)rne~lt." 51nce AB 1; ,ippl~edonl\ to p l x e s defined as "places of e~nployment,'' these exemptions trom the smoke-free r n m d ~ t ewere a l s euempted ~ from the bdl's preemptlon ~ l a u s e lea\ , ing them open to local r e g u l ~ t ~ o Friedn. m m a d ~ l l ~ t t e ,~ccepted dl~ the an~endmentsto exempt these are'ic so to move the b ~ l through l committee; he declxed the bdl's p'issage to be ,I v ~ c t o r >a g ~ m s the t tobacco ~ndustry."" The AB T ; coal~tioncontinued t o support the b~ll,even though ~twas no longer "loo percent," the rationale initially used by several members of the support coalition to justify their acceptance of the preemption language. Between the first and second committee hearings, in response to a question from a reporter, Friedman argued that "AB I 3 creates one u n h r m protect~vest,itemide law and l ~ r e e m p t sthe patchwork of local ordlrlances a m u n d the state w t h ~ v h ~ cbusmesses h muct currentlj conip h . It protects ,111 workers from e n ~ ~ r o n m e n t tobacco al smoke 'ind ,111 emplovers trom claims re1,ited to en~ironinent,il totxcco smoke" (emp h m s ,~dded).-" After passing the Health m d H u n l m )err Ices C omnilttee, AB I ;\vas referred t o the Jud~ciaryCornnuttee, c h a ~ r e dby Cenator Bill I ockr er (DH ~ v \ \ , i r d )the , '~uthorof the "Napkm D e ~ l "(see chapter ? ) . At AB 13's fiist hearmg 111 the Jud~clarx Comm~ttec,on August I 9, ~t was c l e a ~ AB I 3 did not have the votes t o clear the committee."- Over the next several ~veeks,Lockyer proposed several arnendiilents that xvould further ~veakenthe bill's smoke-free mandate, including a request that Friedman relinquish his l o o percent smoke-free requirement in favor of ventilation standards. Rather than accepting Lockyer's proposal, Friedman petitioned t o turn AB I 3 into a two-year bill, allowing him t o bring the bill hack to cornnuttee for d ~ s c u s s ~ o111n 1994. HIS request was grmted and Frledmm vowed to return 111 1994 with a ctronger support coal~tionfor the bll1.-l

Battles over Preemption

T H E P H I L I P LIORRIS P L A N Friednmi was not the only one making p l m s for 1994. In N o l e m b e r 1993, conceding that it would likel! be unsuccessful a t " b l o ~ v i i ~AgB 9 9 6 o u t of Senate Health," Philip Morris started planning a n inltlcitl\emodeled o n AB 996:

"

Thus, the fil~ngot an Initl,ltlve might gi\e the ~ n d u s t rsome ~ le\esage In the Legis1,lture ,ig,~instAB 1 3 . This str,lteg\ n as s ~ r n ~ tloa the one t h ~ t the industry had traditionally ~ l s e dat the local level-the threat of a referendum t o force c o ~ m t i e sa n d municipalities into more moderate o l d n m c e s (see ch'lpter c ) ) . O n N o ~ e i n b e r1 Da\ ~d L,lufer of P h d ~ phlorris laid out the C a l ~ f o r n i , ~ "situation." " Y The San Fr,lncisco Ro,~rdof Super1 ~ s o r had s just passed a n o r d ~ n m c es ~ r n ~ tloxAB 1 3 . Accordmg t o Lduier, "It 1s n o coincidence that the h111 resen~blesAB I;, s ~ n c eTerr? Erledman h ~ spent s the last se\er,il u e e k s in SF 1obb)lng the Board." H e merit o n t o s a , "Barrmg a m ~ r a c l eo r a decis~ont o take this t o the ballot, it is ,I done deal." H e noted t h x the smoke-free ordinance in Los Angeles h ~ gone d 1nto effect and, "while perhaps n o t enforced," was "being complied with o n the whole." H e added that the Tohacco Institute "has n o more funds this year t o continue t o pursue the case, so we will need t o decide if we want t o continue and pick u p the tab." I11 San Jose, the City Council had directed the city attorney t o draft a la\v making all public places and worksltes smoke free ( u h i c h passed o n December 30, 1c)93), and 5,111 Diego was d~scussingstrengthening its ordinmce. 5,1cr,1mento had been smoke free for several y e x s . Ldufer offered this summary: "In 4 of the 5 largest populat~oiicenters In the state, ,I ban IS,o r w ~ l l l ~ k be e l the ~ r e d ~ t ) ;mak111g AB I ; ( a staten ide ban) all the more ~ p p e a l m g~ n eas) d t o enact when session reconLenes in earl1 Janu,lr) 1994. . . . In conjunction u ~ t h wh,lte\er remalnlng allles we h a e, 1 bel~eaewe must launch a s l m ~ ~ l t a n e ous counterattack on s e v e r ~ d~fferent l fronts: legialati\e, ~ n i t ~e,t regui~

R'ittles over Preemption

22 5

I~tor! m d legal." ""lien hlerlo, P h ~ l ~Morr~s's p \Ice pres~dentof st'lte actlkltles, 'lgreed: "If the four lxgest cltles In C a l ~ f o r n go, ~ ~ l~t 1s 1' \er\ d,lngerous p~ecedentm d I thmk \\e hake to throw '1s man\ resources t can hre n ~ t h Let's . do ,lt at least some sort o f J comp101n15e t h ~ we ASAP." -' O n J a n u m I L, 1994, hlerlo nrote to Geotf Bible, pres~dentof 1'11111p Alorr~s,to brmg h ~ n LIP l to date on "the steps that we take In Calle preempt o r n ~ aokei the next sekeral weeks 111 order to ' ~ c h ~ e kstate-w~de o ns ~ n o k e r ~ . C~diforni,~ "-~ c l c ~ r hwlr,irrmtcd t ~ o nwith a c c ~ n ~ m o d a t ~for dttentlon ~t the tobacco giant's lughest lebels. Four steps u e r e outlmed: r . V(:e will file a lawsuit on February 1st against the City of Lln Francisco over the jurisdictional issue of whcther or ilot San Francisco h a the a u thority t o hall workplace smoking. We mill he a co-plaintifi along with local business people in this lawsuit and based on precedent and legal advice, we think we have an excellent chance of prevailing. 1. At the state level, we mill create " 4 flurry of legislative activity to confound the antis h!- i~ltroducingvarious hills and measures to put them o n the defensive, i~icludingasking for a n audit of the Proposition c)y trust fund, 1111 investigation of political abuses of the Proposition c)c) fund and a resolution t o ask U.S.OSHA t o establish Indoor Air Quality Standards \\ithin the state.

. We ~villcreate the same lcvel of local activity in cities like ;-\naheim, South San Francisco, Stockton, Palm Desert, K a ~ l c h ohlirage, ctc. by introducing smoking accommodation hills. 4. Finally, o n or a b o u t January r 7 t h , \\;c will file '1 hallot in~tiati\,e seeking 3 state preemption hill that provides for smoker accomiiiodation. The Initiative nil1 be filed by three independent business andlor associxion members. Simultaneous with our fling of the ballot initiative, we will conduct additional polling t o ensure that we thoroughly probe voter reaction t o this bill, nrhich preliminary polling indicates we have a very good c h ~ n c eof n~nning.-'

AIerlo 'ldded that 1f the cornp'ln) h ~ the d ' ' ~ p p o ~ - t ~ i to n ~reach t\ a nefor preempt~onand x c o m got~atedsettlement through the I eg~sl,~ture modation, we u 111 d o so." -' RJ Rejnolds d ~ not d share Lle~lo'soptlnnsm about an inltlatl\e. On Januai-J 17 Tlm H ~ d wrote e to Tom Cr~scornm d Roger M o n n g o bout the ploposed Inltlatlve, saslng, " O ~ e r a l lI, t h ~ n kt h ~ IsS a b ~ apploach," d referr~ngto ,I surbej conducted tor Ph111pMorris.-4 He offered the h lo\i ing arguments to support hls \ ie\\ :

A. 1 a n d o ~ ~ h twe f ~could ~ l prevail o n such 1' ballot question. V17e haven't seen the whole survey, yet, but Q j 7 [the head-to-head comparison of LIB996 and AB I 31, in the deck, shows that alniost as many people would vote tor n total h,ln as for designated areas ( 4 4 - 4 6 % ) . And that's before the other side has had a c h m c e t o p r o p a g ~ n d i z ebout out-of-state tohacco companies spending big money t o protect their interests.

C. Even if we should win, it doesn't solve tlie problem. The real problem is the li~u~ldreds of n~illionsthat other side has in Prop. 9 9 money t o fight us. I suspect that if they weren't spending their effort5 trying t o enact 10cal ordinances, as they are now, they would be up t o worse activities: such things as har,issing private eniployers, even more egregious studies and pilot i~iterveut~on programs, and w h o k n m s w h x else. uJei.e ~ gouzg to motrnt ii pro(7ctlL8ei ~ l i t l d ~wvl,? ~110t ' one thilt ~ w t r l d(11these ftrr~iis to p1.isor7 corrstrtiction ilnd e m e ~ g e i ~r or ~o ~ ~That s ? has immediate public appedl. is a "get" for the voters. and \vould have precedential value for other stxes. I also think I L ' P 11eri-ito hr c~~~.efl.rl ti~lthzclmt tllc otl~ersicl'~hils identified as "fPoutv orgilr~iz~?tiom. A California chapter of the Kational Smokers' Alliance, for example, will he quickly seen as Pll's grassroots arm. The group have f o s t e r e d - C a l i i o r ~ ~ i ~Smokers' ~ Rights-has 8,000 paid memhers and money of their own in the hank, hut the [sic]are still frequently accused of being a front for the industry. Finally, five niillion ctollars is ,I lot of money.-' [emphaiis added] lf

Z

L

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RJ Reynolds was clearly not interested in an initiative hattle over smokefree workplace laws, preferring instead to try t o kill off the Proposition Health Education and Research Accounts once and for all. Local ordinances were causing problems for the industry, hut the root cause of the prohlem was Proposition 99. Philip hlorris ignored RJ Reynolds and continued with its initiative.

THF PHILIP M O R R I S INITIATIVE As hIerlo had '~lertedB~hle,o n J m u ~ r jI - P h i l ~ ph i o r r ~ sdnd J gioup of restdur'lnt owners submitted '111 i n i t ~ ~ t i statute, re the C alifori11,i Unitorm T o h ~ c c oControl Act ( e s s e ~ l t i , ~~l ld~e n t u to l AB 9 9 6 ) to the C,ill-

Battles mer Preemption

127

f o r i i ~ Attorney i General m ith the intention of qualifying it for the KO\ember election. The lnltiative stated t h ~ "current t regulation of slnok1ng in puhllc 111 Cal~forniais ~ n a d e q u a t e "and that "there 1s clear need for uniform statem-ide regulation of smoking in public t o assure those illterested in avoiding secondhand smoke have the same protection wherever they go in the state and that those ~ v h od o smoke have fair notice of rvhere smoking is prohibited."-" The smoking regulations in the initiative were siinply worded as broad prohibitions; the even broader exceptions appeared near the end of the initiative, couched in technical terms. The language that preempted a11 local ordinances regulating any aspect of tohacco consumption, distribution, o r promotion was buried on the last line of page 9. The initiative would have overturned eighty-five local ordinances that mandated smoke-free workplaces and ninety-six ordinances that mandated smoke-free r e s t a ~ u a n t s( a s of January 1994). In addition, because strict \vorkplace s m o k ~ n grestrlctlons encourage some smokers t o quit and others t o reduce the number of cigxettes smoked,--,-' a trend that is rebersed u hen revtrlctlons 'Ire ~-el,ixed,~ -"'~ss,lge of the lultlatlre would h,~~ x teu a l l ~increased smoking and exposure t o secondh,ind smoke."' V('I11le Ph111pXlorr~s'spubllc stxements did not ernph,is~zethe potcntl'il of the initiative t o protect tobacco profits, the company explicitly presented the initiative as a \vlra)- for tobacco retailers t o protect their business: "The adterse impact on ret,iil clgxette sales would be mrnediate [without the initiative]. Your cigarette sales, along with your psofits, could drop." Organized opposition t o the initiative, which xvas eventually placed 011 the ballot as l'roposition 188, developed slo\vly. When Philip htorris first proposed the initiative in January I 994, only Carolyn hlartin, a n ALX volunteer a n d former chair of the Coalition for a Healthy Califol-nia and T E O C , and ALA lobbyist Tony Najera, expressed strong concern about it. M o s t people viewed the Philip Morris initiative as a sure t,i~lu~-e hec,iuse the C a l ~ f o r n ~p au b l ~ chad been educated about the hc'ilth dxngers of tobacco and did not trust the tobacco industry."J' hlartin and Najera hired Jack Nicholl, w h o had been campaign Inanager for the Yes on Proposition 99 campaign. The three contacted former Coalition members t o alert them t o Philip h/lorris's actions and t o rnohilize local groups t o p~il>liclydenounce the initiative as an attack on their local tobacco control ordinances, local ~ u t o n o m ,~i ,d public health and to contact editorial boards and secure their opposition. Martin also CI

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Battles over Preemption

229

asked for contributions for a three-month campaign to defeat the petition drive (table 2 ) and convened former members of the Coalition on February 17, 1 ~ ) 9 4 . ~ " ~ " Meanwhile, XCS funded a poll of California voters asking how would they vote if they knew Philip Morris was behind an initiative that rvould decrease smoking restrictions in California, overturn local laws, and prohihit cities and counties from making their own smoking l a ~ s . ~ T hpoll is also tested various messages that could be used to oppose the initiative, so ~t prov~dedimportant rnarketmg research for the publ~chealth campaign. The results rereded that 70 percent of those polled rvould rote d g a ~ nsuch ~ t 1' Iaw, 24 percent would vote for ~ tm, d 6 percent were ~~ndec~ded. Whde the proponents of an inltlatlve write the text of the proposed law, the C a l ~ f o r n ~Xttornev a General prov~desthe o f f i c ~ title l and summary, which appear on the ballot. This wording is important because it may be the only material that a voter reads about the measure before votIng. The title m d summary also appear at the top of all coples of the petitions used to gather signatures to qualify the initiative for the ballot. Gi~rentheir experience in the Proposition 99 campaign, Martin and Najera realized the importance of not only the initiative's title and summary hut also the Legislative Analyst's analysis and ballot arguments, rvhich appear in the Voter Pamphlet. Philip Morris had submitted proposed language emphasizing that the initiative "bans smoking," "restricts . . . vendmg mxhines and b~llboards,"and "increases penalt~esfor tobacco sale to 'and purchase by mmors" while downplaymg the except~ons.~The Coal~tmnh ~ r e dan attorney who presented a trtle and summary to the Attorney General that emphasized preemption of local ordinances, relaxat~onof current restrlctlons on smoking, m d the Incre'ise 111 smoking thdt the lnltiatlve would ~ a u s e . y'' ~The final title and summar) that the Attorne~General released on March L),1994,reflected the Coal~tion's the preemptlon of exlstlng laws and s~gn~ficant concerns; ~t h~ghl~ghted evceptlons to smoking restr~ct~ons."' The Coal~t~on's t~melyand assertike intervention would prove very important as the battle over the initiative unfolded. T H E CONTINUING FIGHT OVER AB 13 As lie had proniised in November 1993, F r ~ e d m mwas ready to push AB 1 3 when the Legrslature returned in January of the follorvmg year.

In Febru'm I 994 AB r ; was t,lken up ag'lln in the Senate J u d i c ~ a r \ C'omm~ttee.F ~ i e d i i i ~'lrnended ~n the brll to exp'lnd evemptlons for llotels , ~ n dmotels to gain the support of the C,111to1n u Hotel and Motel Assos ot AB r 3 . F r ~ e d ~ m ~ nl s '~dopted o Lock\ cl's c l m o n , ,l prei ~ o u opponent ame~ldinentt o perinit smoking in bars untd J , i i ~ ~ ~ Ia,r ,199-, after \ x h ~ c h time bars n ould h a ~ coinph e n i t h m as et unwritten El% or CaIOSHX \ e n t ~ l a t ~ ost,~ndard n to protect \z orkers from secondhand smoke. Hon eler, F r ~ e d m a nmade sure to s t ~ p u l ~ itt eh ~ itf n o standard n,is nrltten b, Janu,lrb I , 199-, smokmg u o u l d he p r o h ~ h t e dm bars and gamlng cl~llx.~' AB I 3 n a s ~ o n t l n u i n gto nm\ e t h ~ o u g hthe Leg~sLlture.When the \ellate J u d ~ c ~Committee q he'nd AB I 3 ,Ig,un o n XL1rch r z , two tobaccof r ~ e n d l,lmendnlents ~ \\ere ddded t o the 13111."' The fiist, sponsored h1 Sen'ltor Art Torres (D-Los Angeles), extended the ph'lse-m period and \entil,~tiono p t ~ o n sfor has, gamlng cluhs, ,lnJ conbention 'enters to I est,lurmts. The second amendment, sponsored b1 Cen,~torC h a l e s ('11deron (D-VC7hittlei), preernpted all future ordinances. Calderon had a h ~ s t o r ~ofi ~ ~ 1 p p o r t i n\ Lg K ~ preempt1011 I m g ~ i . ~ g'1es nell '1s the tobacco ~ n d u s t rgenerdh. ~ '> In proposmg hls preemptlon ,imendment to AB I ;, Calderon argued t h ~ lft F l ~ e d m mt l u h n a n t e d to estahl~sh1' ctate c t ~ n d u d tor smoklng, he should extend the preeniptlon in the bill to all 10cal ord~nances.l-r~edrnan oblected t t ~ 1115 t hag& support coalition n o u l d dwntegrate bec,~uscinan\ \upporters n e i e p h i l o s o p h ~ c ~ I lop\ posed t o preemption. '+The J L & I , I ~ T < olmmttee ~ g n o i e dFriedrnan and p a s e d the bill br a late ot 6-1, ~ncludingthe amendments. Once AB I 3 X\ '1s amended to b r m d l ~preerupt loc,ll I,lu S, the health d dlr ~ d e dbout the p1 eemption 111 AB I 3, ~ l m t e d groups, m h ~ c h ~ been 111 opposing ~ tThe . Le'lgue of C aliforni,l C ~ t ~ eACS, s , XLX, and AHX eupressed opposltlon to the t n o pro-tob'lcco '~mendments~ n scud d the\ Mo~ild oppose the 17111 ~intilboth amcndnients el e remm ed."'-"j A N R continued to oppose the 13111. The w e ~ k e n i n gof ,\B I 3 w ~ fsr o n t - p g e neu L'" 7 he Los A i ~ g e l o Times ed~torialpage c,llled the he,lrmg ''a I ape In \ail-amento." ""' Friedman l o b b ~ e dto remol e the Toll es , ~ n dC d d e r o n amendments trom AB r 3 m the Senate Xppropl l'ltlons Comnuttec, the l ~ s comimttee t hefore the Senate floor.'"' Torres, r e a l ~ z ~ nhe g had been misled ~t the h e a r ~ nh1~ restLIL1rant owners in h ~ ds ~ s t r ~ cnt o, 1 ked n ~ t hFr~edm'ln's office to rem o \ e the ,lmendment he had suggested as \bell ds C,~lderon'spleeinption remoled the hoslangu'lge. l " ' t rlecimm and his suppolters s~~ccessf~ill)

t ~ l eamendments In the Sendte Appropriations Commttee. The AB 1 ) support c o a l ~ t ~ oonce n agam backed the b~ll,n l d e A N R cont~nuedto oppose it. T H E PHILIP M O R R I S SIGNATURE DRIVE The flurry of press activity surrounding AB 1 3 did not extend t o the Proposition 188 sig~laturedrive. Philip hlorris began a quiet effort to qualify its initiative, using the Dolphin Group (which had created front groups for fighting local ordinances) to run the campaign as Californa m for Statewide Smoking Restrictions (CSSR). Voters began receiving phone calls inquiring ~vhetherthey w o ~ i l dsupport a uniform state law restricting smoking. Respondents who answered "yes" received n packet that contained advertising materials and a copy of the petition t o be signed and returned. This attractive packet, which cloakecl the initiative as pro-health measure, detailed "strict regulations" that would be implemented h)- the proposed law and outlined its "benefits": Completely prohibits smoking in restaurants and \vorkplaces unless strict ~entil~ltion stanciards are met. Replaces the crazy patchwork quilt of 270 local ordinances with a singlt., tough, uniform statewide law. [Is]stricter than c ) o ? o of the locd ordinances currently on the hooks.'"' Preemption of local ordinances \\.as mentioned only in the Attorney General's summary. Nowhere o n the materials, and only in small type on the back of the envelope, did Philip Morris reveal its sponsorship of the initiative. Using staff' resources donated by ALA, the Coalition campaigned to keep Philip ,Morris from collecting enough signatures t o qualify the initiative and sought resolutions horn local governments that had already passed strong local tobacco control ordinances in an attempt to create dehate and interest the press in covering the star!,. Even though the Coalition considered this strategy a long shot, an!, controversy created during the signature gathering might attract early press attention before the general election campaign. The Coalition also advised voters who had signed the petition in the belief that it would promote health t o complain to Acting Secretary of State Tony O n April 8 Miller sent a letter to the restaurant owners who had filed the petition, warning them that deceptive peti-

7 -3

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7

Battles over Preemption

tioning practices u o ~ ~ not l d be toler'lted. H e later launched ,in lnvestigatlon Into CSSR's p o s s ~ b lfraudulent ~ petltionlng pr,lctlces, statmg that he mould "not certih an> nleasure for a m hallot that met the slgilature requ~remento n h br break~ngthe law." The C o a l ~ t ~ ocna p ~ t a l ~ z eodn Aldler's x t l o n s , public~zmgh ~ w~lrnlngs s and slmultaneousl\ Instruct111g 1 oters hen to I equest I emov'll of t h e ~ rslgn'ltures from the petit1011 (nh d i turned out t o be ~mpossihle,for ,111 p r x t ~ c a purposes)."" l O n Llav c) CSSR subm~tted607,000 slgn'itures ( ? S ~ , o o \oa l ~ ds ~ g natules n e r e requ~redit o the s e c r e t m ot state's office. As part ot h ~ s continuing In\estlgatlon, ,\Idler a s l d tor court permission t o randomlj s,iniple the slgnatures t o sur\e\ for fraud. The court denled permlsslon " )n~June 3 0 on the g i o u i ~ d that s it W O L I I ~constitute i n \ m o n of p r ~ \ a c ~ . O the secretar? of- state cert~fiedthat Philip Xlorr~shad collected enough \ a l ~ dslgnatures to place the I I I I ~ L I ~ e I \ on the ballot for the No\ ember 1994 election '1s Proposit~on~ 8 8 .

THE LEGISLATURE PASSES AB l 3 Rack In the Leg~sl~itule, AB 13 \\'is contmulng t o moxe. After passing the Senate X p p r o p ~ i a t ~ o nCornm~ttee, s it was sent to the Senate floor. AB I 3's floor manager 111 Senator hl,lr~,inBergeson (R-Newport Bec~ch), the Senate, successtull\ fought off s e s e ~ a hostde l amendments. Howeber, one amendment \\as 'lcceptrd o n June I h: srnokmg a r e a would he allomed in long-te~mpntlent caie f a c h e 5 and in busmesses n i t h fewer than fike emplmees so long '1s ,111 alr from the s m o h n g nrea was exhausted dlrectl~outs~de,the area was not access~blet o minors, no work stations \\ere 5it~1,itedn1t111n the smoking area, and EPA or CAOSHA \entilCit~on stmdards n e r e met, once establ~shed.The bdl passed the Senate on June 30, 199.1. The Xssetnbh \oted concurrence w ~ t hthe Senate amendments. Gokernor W ~ l s o ns g n e d the h111 into law o n Julj 21, 1994. The final lersion of AB 13 retamed 1t5 l o o percent smoke-tree mandate ,is well as its preemptlon cl'iuse. Amendments were worded so anv exernptlon from the smoke-free mmdnte allowing smoking was also 1' 11 exemption horn the preemption clause. Thus, local entlties would be allowed to enforce ewsting regulnt~onsm d pass and enforce new legul a t ~ o n siestiictmg smok~ilgIn areas exempted from AB 13, desp~te~ t s preemptlon clause. Nekertheless, Lose1 nor Pete W ~ l s o nc ~ t e dthe hdl's preemptlon of local ordm,lnces as I' reason t o slgn the bdl Into law. H e stated that AB 1 3 protected Cal~forn~a's businesses as well as the health of workers because "l>\ prokidlng a ~inlform,statewtde standard w h ~ c h

Battles over Preemption

2.;;

preenlpts the patchwork of local ordinances around the state with ~vhich businesses must currently comply, the law does not give one business an economic advantage over another business." l''Wilson continued to press his view that AB I; preempted local communities from regulating smoking. In 1 9 9 5 a nursing home resident in San Jose complained that he was being forced to breathe secondhand smoke in the television room at the nursing home; he asked the city, u n der its clean indoor air law, to require that the room be smoke free. The city complied, and DHS sued, claiming that AB I; preempted the ordinance. DHS lost in the trial court and appealed. On August 18, 1998, the Sixth District of the Court of Appeal unanimously ruled that the neither federal law nor state law preelnpted localities from enacting local tobacco control ordinances: By disavowing any intent to preempt the regulation of tohacco smokmg, and by in fact expressly authorizing local agencies to "ban completely the smoking of tobacco" in any manner not inconsistent with the law, the Legislature clearly indicated its intent to leave to the local authorities the Inarter of regw lating the smoking of tobacco in t h e ~ rrespective jurisdictions, provided the regulaions so adopted do not conflict with statutory iaw. 111 delegating such regulator)- power to local agencies and expressing its preference that regulation of tobacco smoking at the local level be made by local governments, the Legislature irnpliedly [sic]decreed that Lzhere the local agencies have stepped in to regulate the smoking of tobacco within their own territorial boundaries, the state's administrative agencies, such as the Department [of Health Services] should step hack. . . . Evidently, the rationale for the Legislature's deference to local governments, equipped as they are with superior knowledge of local conditions, [is t h ~ they] t are better able to handle local problems relating to regulation of tohacco smoking."'"

The fact that DHS under the Wilson administration was willing to advocate the position that a nursing home resident had no right to a smokefree environment while watching television was just one more example of the administration's pro-tobacco position. The result, however, was a resolution of the bitter debate within California's tobacco control community over whether or not state law was preemptive. It Ivas not. AB 13 A N D PROPOSITION 1 8 8 For the tobacco ~ndustrj,Proposmon 188-whlch had started out as a way to finesse leg~slat~ve b e h a ~ ~ and o r get what the ~ndustrjreg'irded as a good preempt~veb~ll-had become e s s e n t ~ after ~ l passage of AB T 3.

B'lttles over Preemptlon

2-34

John A l . Hager, a \Ice pres~dent~t American Tobacco, ni-ote Don'ild S. Johnston, pres~dentm d CEO, "AB I;, a vu-t~ialsmokmg b m , 1s 111 place for J m u x ) I , ~ n dProp 188 is our ' l ~ s chance' t tor reason in C a l ~ t o r n ~ a1°" ." In June 1994, before AB 13 became law, the tob,icco ~ n d u s t ncornm ~ s s ~ o n e,I dp~ibllcoplnlon poll on Propos~tlon188. The poll, conducted b j Voter/Consumer Research of Houston, showed that the inltlati\e was runnmg eken among votels (43 percent tor, 4; percent agamst). Its SLIPporters Lvere p r ~ r n a l ~ lpeople \ w h o wanted t o strengthen s m o k ~ n grestrlctlons, and opponents were p r ~ m a r ~smokers, ly people w h o opposed go\ernment regul'ltlon, and people w h o disapproved of P h h p Morrls's sponsorship of: the measure.' "' The poll also revealed that Proposition 188 faced two other p ~ o h l e m s .The first problem WJS that the initlatl\e mas confusing to people (espec~alhn ~ t tobacco h control ad\ocates and the m e d u attacking ~ t )and , contusion leads t o "no" lotes. The other problem lvas t h ~ the t ind~lstr)n a s a s h g for "xes" ~ o t e sM, hlch ale 111stor~call\harder t o get.'"' As R J Revnolds recognized, "S~ncethe signing of AB T ; , the effect of P[ropos~tlon]188 mould be to relay restrlctlons. In other u o r d s , the whole elector,lte \v111 prohahl) reconfigure on t h ~ s issue." ( l 1 Those who Lvanted smoking restrictions would likely shift to support the ne\v status quo, AB r 3, which meant they became "no" votes, ivhile those \vho opposed Philip hlorris sponsorship would stay o n "no." Only s ~ n o k e r sand opponents to regulation would stay where they Lvere. The only hopeful news for the tobacco industry from the poll Ivas that while Californians preferred smoking bans to nothing, they preferred restrictions t o bans, and that ~ v h i l etohacco sponsorship was not a plus, it was not a killer. l l l T H E STFXLTH CXhlPLIIGN After the lnitlatlr e qualified, CSIR a s o ~ d e dthe media and public debates on the Inltlatlx e m d instead beg,m ,111 expensi\ e d11ect m,i~l id^ ertlslng campalgn to re,lch loters. Proposlt~on188 n a promoted as 1' tobacco control Inw, tough but re,~sonahlealtern,lt~\eto AB I;. Although l i r t u a l l ~all the Inonex for Propos~tlonL X8 n'is c o m n g trom the tobacco ~ n d u s t n(table ;1, CSSR d o n n p l a \ ed the industr) 's role 111 the campalgn and, In t\pical t a s h ~ o n ,presented itself '1s a coC~lition of m a l l business owners, restaurmts, 'lnd concerned C a l ~ f o r n ~cltlzens. a Lee St~tzenbergerot the Dolphm (,roup ran the campalgn for Ph111p CI

M o r r ~ sR. I Re\ nolds's Roger hlozmgo m d T m Hydc descr~bed5tltzenberger's plan to Tom Griscom and 15. Oglesb) o n August 4: It calls for n o television, r 5 m pleces of mail. the ol' slate-card e ~ t o r t i o n , earned n ~ e d l a ,~ o m ene\vspapcr ads, s n d '1 couple of \veeks of radio at the I ~ I I ~ C of / I it I [ J I / / fl?, 117zd~r ~NliZi. end. basic all^^, it is 17 k i ~ do j s t e l d t / ~c-amp~71gtl: col,cr. The first phase of the camp'lign. between no\v and Labor Day, will hit the sponsorship head on. "It you think this is a ploy by the tobacco companies, read tlie proposal. Here it is. Read it." The next phase \\.ill attempt to use allies, broaden the base with coalitions, and the use of spokespeople for earned media. The f i n d phase will he targeted radio a n d the slates. Tbc prirr~,w~' mess~zge,otllcr tl~arz" u ~ dorl't e Ilartc ; r r ~ ~ ' t h itto~ gI~ide," uill be thzt AB 1.3 goes too till; ule need seL1ererestristior~s,izot bilns. Tbi, other s d c luorl't b n l nrlJr ~ M I O I I COJZ; It ~l ~ uqd l hirl1e alriiost 11tzi~wsalctiito~.ialsupport. T / Jcmlplzigrz ~ ~c'i// morlitor their use of pro[^ 9 9 rnoi~irsirrld is p1.cpred to ~ h ~ ~ lail!' l ~ltsc t ~t11el.eof g ~ irz court. They [CSSRI have a $9 m budget for the remainder of the campaign. We guess Phl has put about $ 1 . - [m] in so far. EIlen [hferlo] said that PM has b ~ ~ d g e t eS6 d 111, SO they are looking for S; [ m ] from the rest o f the i n d ~ ~ s t r y . I l z L~dditiou, .T~tlotzrllSmoker A l l i i i t ~ ~will e d o tulo stilteutid~s v ~ ~rmiling k i ~ jsj jcubic-11, of c-ourre, PA4 ~ 1 1 p1 q iori. . . . Vi'liat they want from the rest o f the industry, in addition t o Sj,ooo,ooo, is the use of some of our outdoor hoards, help with point-of-sale distribution, smoker lists, and spokespeople [ ~ L I C I I as Ilanny Glorer). We specul,ate that P\I is interrsteii in full indu\try participation for reasons beyond money. \VC suspect the!- \vant t o share the negative p r this effort is taking in the media and among elected officials. Lec said that there is not a jo-SO chance that we a.ill n,in this, h a t it isn't far off. Their main point (and that of the entire California team, includmg ~ sI Je~ L of'tr~~zkir~g '~ progress 111 that O'Mally) was that thlj I S tbe o r ~ lc~ l, ~ ~ ule st'zte. ' ' ' [empliasis ~ d d e d ]

The CSSR attempted to present Proposition I 88 as an anti-smoking measure. In doing so, the organization departed from previous tohacco illdustry election campaigns by emphasizing anti-tobacco themes: limiting youth access to tohacco, protection of nonsmokers, and accommodation (figure 14). Yet Proposition 1 8 8 represented a rolllxlck of existing California tobacco control laws. Philip hlorris used tlie industry's usual rhetoric only in emphasizing that restrictions on tohacco represented unwarranted government intrusion into people's private lives; targeted mailings to its National Smokers' Xllimce and other smokers' rights lists portrayed Proposition 188 as a chance to "preserve your right to smoke."'12

Battles over Preemption

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Figure 14. Tobacco industry billboard promoting Proposition 188 as a "tough" anti-smokingmeasure. The statement "Sponsored by the Tobacco Industry" was added by a graffiti artist. As originally displayed, the billboard did not disclose who was financing the campaign. (Photocourtesy of Julia Carol, Americans for Nonsmokers' Rights)

THE "NO" CAMPAIGN The Coalition for a Healthy California chose "Stop Philip Morris" as its campaign theme. Polls dating back to 1978 had consistently shown that the tobacco industry had very low credibility among ~ o t e r s . ~ ~For Jl~J~ example, a 1982 poll prepared for the Tobacco Institute as part of its effort to defeat a tobacco control initiative in Bakersfield revealed that "knowledge of tobacco company [opposition to a measure] does move a significant number of respondents into the 'yes' column." 113 The Coalition concluded that simply educating the voters about the tobacco industry's involvement with Proposition 188 would convince them to vote "no." By mid-September, the formal No on 188 campaign was launched. The ALA and ACS were actively working together, with Martin sharing the CHC chair with ACS volunteer Gaylord Walker. The Coalition held press conferences around the state, and press events aimed at informing the public that Philip Morris was behind the initiative. Following the press conferences, the tobacco industry received telephone calls from

Battles over Prremption

23 8

medta 111 only S a l F r m c ~ s c oa i d Sacramento and cons~deredthe extremely quiet press "good news." ' l ' D e s p ~ t estrong grassroots support for lts position, the C o a l i t ~ o nwas h a \ m g d~fficult?ralsmg money t o counter the tobacco ~ndustry'sd ~ r e c t m a ~ lcampaign. Knowledgeable obser\ers-\+l10 knew Ph111p hlorrls was behlnd the campagn-could n o t belleve that the Loters would support Proposition I 88 after se\ ern1 years of anti-tobacco p u h l ~ ce d u c a t ~ o n funded In P r o p o s ~ t ~ o99. n hccordmg t o N ~ c h o l l ,P r o p o s l t ~ o nI 88 " n a s b ~ e w e d,IS such ,in extreme a n d aggressive t a c t ~ cbv the tobacco lndu\tr\ that it couldn't poss~blym ~ n . " l " P h i l ~ pM o r r ~ s ' s strxeg), however, was workmg. T h e ~ n d e p e n d e n t F ~ e l dI n s t ~ t u t e allfor-n~aPoll tn mtd-Jul\ had shown the Inltlatlve ahe'id: 52, percent for, 3 8 , p l n s t . l l - B\ ni~d-September,polls conducted bv the F ~ e l dInst~tute,ind the Los Angeles T17nesshowed t h ~koters t n e r e eienl? d l v d e d . ' l Propos~tionT 88 h ~ ad good chance of p ~ s s i n g . hledia attention is generally attracted by controversy, and rcporters usually seek t o represent both sides of an issue. The tobacco industry lvas so committed t o staying o u t of the public eye that CSSR had a n LIIIlisted telephone number and actively avoided journalists and public dehates.'"'."' For example, when the League of Women Voters scheduled a debate t o be broadcast in the Bay Area (the second-largest media market in California), CSSR refused t o send a representative. Unahle t o take a formal position opposing the initiative due t o its bylaws (which req u ~ r e dequal consderatlon of both s ~ d e sb e h e tahlng a posltlon on a n r n ~ t t m \ e ) the , league canceled the dehate."' When the Senate Health C o n m ~ ~ t t eand e the X\sembl> Go\ernmental Organ~zationsC ommlttee held the p u b l ~ ch e a r ~ n gr e q u ~ r e dh\ law t o present Issues r,i~sedb\ PI oposltlon r 8 8 , CSSR refused t o p m ~ c ~ p ~ i t B: e . "s~h u n n ~ n gthe spotlight, CSSR successfullv m ~ n ~ n ~ contro\e~-S) ~zed over P ~ o p o s ~ t ~~ o8n8clearl) , part of St~tzenberger'sstealth str'itegv. The strategx allowed P h h p Marr ~ tso control the message through direct m a ~ al d t e r t ~ s ~ nwhlle g den~~ng the opposlng camp the free forum t h ~ nt o u l d h a t e ,iccompan~edmedia coverage. On October r I , ~ 9 9 4 Iohn , H. Hager of A i n e r ~ c ~Tobacco ~n agun \\rote t o Donald S. Johnston t o b r ~ e fh m o n the Propos~tlon1 8 8 c a n ' 11 anal\ s ~ of \ P r o p o s ~ t ~ oI n88. l o "A notable strength paign. H e enclosed 1 of P r o p s ~ t i o n188 n a s l o ,mareness ~ ~ of the measure, espec~all)cornpared w ~ t ht w o h~gh-profileInitiatives that were o n the ballot ("three str~kes,"w h ~ c hr e q u ~ r e dlong prlson sentences tor repeat offenders, and

'"

ISattles over Preemptmn

'39

anti-immigrant measures). Other strengths included support now among smokers, high-turnout groups (such as the elderly), and those who favoi-ed the initiative's youth focus. The weaknesses were, however, significant: support for the measure declined when voters were somewhat informed; AB 13 had strong support ( 4 8 percent preferred it to Proposition ~ 8 8 )the ; health groups had substantial credibility; and Philip hlorris's sponsorship of the initiative was a distinct liability. The strategy for the last month of the campaign was to identify and mail to likely smoker households, exploit populist themes, and keep buying media. American Tobacco knew something that the Coalition did not know. The California Wellness Foundation, a large California foundation, was thinking about launching a large nonpartisan voter education project to make sure that the public understood exactly what Proposition 1 8 8 meant-and who was s ~ ~ p p o r t i nitg and who was opposing it. YJhile strictly neutral from a content perspective, this educational campaign would effectively smoke out the tobacco industry's involvement and expose its stealth strategy. American Tobacco's analysis presented four major concerns: K'dlness Fonntlation. While the o6cial "NO" campaign has only $go,ooo cash o n hand as of 9/30, the nonprofit Mellness Foundation may spend anywhel-e from SI rnillion to $3 million in "non-partisan" radio spots. . . . They are being quoted non-profit rates, so this \vould also extend the reach of their buy. While we may be able t o counter a $ 1 million huy, a n effective $3 nlillion buy to raise 'lwareness of 188 sponsorship virtually doorns our campaign. Prop 9 9 'zds. Even though they do not mention 188, the extent of these ne\v ads pose[s] a real threat, especially if the NO canlpalgn o r the VCrellness s deceit) t o t h ~ Foundation helps voters relate the theme of the L).) ~ d ( sl ~ e and initiative. Alt~t-lin.The medin could accomplish the above connection Lvith little ditfic~~lty.

C. L ~ ~ e r cKoop. tt It the KO campaign has any money to put h ~ o~n nTV ~ d s , we're in trouble. "'"

The tobacco industry did not have to tvorry about the Proposition c)c) ads. Saildra Smoley, Governor Pete Wilson's secretary of health and welfare, had been one of two votes against the Sacra~nentoCounty smoketree ordinance in r 9 q o when she was a member of the Board of Supervisors. As secretary of health and welfare, she forbade DHS from doing an>-p ~ ~ h l education ic about AB 1 3 , despite the fact that educating the public hefore such laws are implemented greatly smooths the process.

240

Battles over Preemption

In anticipation of a major media blitz by CSSR, the Coalition laid out a strategy for utilizing paid advertising to get out its message. Nicholl produced television and radio advertisements highlighting the deceptive nature of CSSR's advertising. The Coalition ads featured former surgeon general C. Everett Koop, one of the signers of the ballot argument against Proposition 188.""~~"~it there was no money to broadcast the advertisements. With the discouraging September poll results indicating that Proposition I 88 would win, the California voluntary health agencies approached their national organizations for money. The AHA and ACS national organizations responded with substantial donations in late October, which represented a major shift in policy for these organizations. In the past they had considered measures like Proposition 188 as state matters to be handled by the state affiliates. National AHA and ACS leaders recognized that a victory for the tobacco industry in California, which had been regarded as a pioneer in tobacco control efforts nationwide, would not only have national repercussions but also help the industry pass preemptive statewide smoking regulations e l ~ e w h e r e . l ~The ~ , lnational ~~ ALA continued its past practice of not providing financial assistance to individual state campaigns,lL7but four ALA state affiliates (in Oregon, Maine, Nebraska, and Wisconsin) saw Proposition 188 as a national issue and sent a total of $32,800 The American The . Kaiser Permanente health mainMedical Association gave $ 2 ~ , O O O tenance organization donated $ jo,ooo and ran full-page newspaper advertisements opposing Proposition 188. These last-minute injections of cash allowed the Coalition to run the Koop advertisements for the last week of the campaign. The tobacco industry has long understood that local and state campaigns make an important contribution to national policy and has always treated these tobacco battles from a national perspective. The Proposition 188 campaign marked a growing, but still limited, recognition by the national organizations supporting tobacco control that state and local issues are strategically important. T H E WELLNESS FOUNDATION The tobacco industry's fears were confirmed when the California Wellness Foundation initiated a nonpartisan educational campaign to give voters accurate information about Proposition 188. The Wellness Foundation was concerned that Philip Morris and the other tobacco companies were controlling the public's perception of Proposition 188. O n Oc-

K,~ttlesover I'ree~nptlon

rq I

toher 17 the P u b l ~ cM e d ~ aCenter, a nonprofit , ~ d v e r t ~ s ~agency ng In J m l-ranc~sco,launched 1' 11111queS4 n d l ~ o ncampaign, funded b) the CJIIf o r n ~ aWrellness F o u n d a t ~ o nt, o educate the p ~ ~ h lahout ic I ' r o p o s ~ t ~ o188. n The campaign was designed t o "provide California voters with objective and balanced information o n a ballot question that many voters are 1111certain or contused about." T h e Public Media Center print, radio, and televis~on ,idvert~sernentspresented the ballot arguments, slgmtorles, arid rlialor ~ O I I O I - St o both s ~ d e sof Propos~tionI 88. The c~impalgn~ l s o presented a toll-free number ( r - 8 0 0 - I t N O W r 8 8 ) t h ~ LToters t could call for more ~nformation.X boter calling the number was sent the Voter Pamphlet ( c o n t C ~ m i nthe g propos~tmn'st ~ t l em d S L I I U I I Mthe ~ \ , Legrslati\ e Analyst's report, and arguments for and against the proposition). To ensure neutrality in designing its campaign, the Public hledia Center did not confer with advocates o r opponents of Proposition r 88; it relied entirelj. o n publicly available, official infol-mation. The C:oalition's victory months e,lrller 111 securmg ,lccur,ite Voter P m ~ p h l e tlangu,lge proved t o be crucial t o innovative advertising strategies used by the Puhlic Media Center. After meeting with representatives of the Coalition a n d CSSR, the Legislative Analyst stated that Proposition 188 was weaker than the protection most Californians enjoyed. CSSR then sued the Legislative A m l\ st, Attornel General, signers of the ballot arguments a g a n s t Proposltlon 188, and the C o a l ~ t l o n cl't~rn~ng , the ~ n ~ t ~ a t ~ballot v e ' s I ~ b e l ,t ~ t l e , summar\, ballot a r g ~ ~ m e n tand s , Leg~\latlveAnalvst's statement d ~ not d present the public w ~ t hn ~ n p r e ~ u d l cstatements ~~il of the ~ n i t ~ a t ~ \cone's tent and potentl'il effects. O n August 12, 1994, the S u p e r ~ o Court r ruled m faxor of the detendants and allowed the Voter Pamphlet t o stand. D e s p ~ t ethe f x t that the P u h l ~ chledla Center campaign d ~ not d support o r oppose P r o p o s ~ t ~ o188, n the center's 'Ittornev r e c e ~ ~ ae nd Inclulry from ,I deputy attorne! general, mvestlgatlng a c o m p l a ~ n lodged t ctganlst the Californ~aWellnesa F o ~ ~ n d ~ i tfor i o ns u p p o i t ~ n gthe e d u c a t ~ o nc~ ~l m paign."': (California A t t o r n e ~General D a n Lungren had close tles t o the tobacco industr\ 'lnd the D o l p h ~ nGroup, n h i c h mm,lged h ~ unsuccesss f ~ 1 1h ~ for d go\ernor In 1998.~") The d e p u t ~retused t o s p e c ~ f vw h o had lodged the complamt, but the P u h l ~ cMedi,l Center mterpretcd ~t as a "cl~sms\ attempt t o i n t m ~ d , i t eus" h> tol>,icco mdustr) la\v\ers.' By presenting the facts in a clear wa); this educational advertising campalgn focused rned1'1 m d p u b l ~ c'ittentlon o n the role of the t o b ~ c c o industr) in the P r o p o \ ~ t i o n188 c a n p a i g n , w h ~ c hforced CSSR t o ban-

"'

24 2.

B,lttles over Preemptlon

don its low-profile campaign strategy. CSSR supplemented its direct mail with broadcast advertising using formats almost identical t o those of the Public Media Center, with the same visual presentation and voice-o\,er techniques, but presenting only arguments in favor of Proposition I 8 8 and urging a "yes" vote. The Public Media Center sued in federal court, requesting that the copycat ads be taken off the air. The judge granted the Public Aledia Center's request, hut later that same evening an appellate court stayed the restraining order, citing infringement of free political speech."' Despite the loss in appellate court, the legal challenge t o the copycat ad was well documented in the media, bringing attention t o CSSR and the tobacco industry's role in Proposition 18 8. Another CSSR advertisement, which featured middle school vice principal Nancy Frick claiming that Proposition 188 would benefit children, backfired in the last week of October. (Frick's husband had appeared in one of CSSR mailings.' ;') The Coalition sharply criticized the advertisement, emphasizing the industry's deceptive practices.'-;' Two days later, the Coalition persuaded Frick to retract her comments and widely distributed the retraction, in which she stated that she was una~val-eProposition 188 would overturn ;oo local laws. " L ' 3 4 - ' ;6 She also demanded that the advertisements be taken off the air.

THE FEDERAL CO,\IMUNICATIONS C O h I b I I S S I O N ANR decided to use the truth-in-advertisir~gprovisions of the Federal Cornniunications Act to force the tobacco industry to clearly disclose its sponsorship of Proposition 188 in radio and television advertisements. XNR reasoned that r e q ~ ~ i r i ndisclosure g of tobacco industry funding would reduce the effectiveness of the Yes on r 8 8 advertisements, and perhaps even make them counterproductive. ANR had used a similar tactic s~~ccessfull~. during the Proposition P campaign in San Francisco in r 9 8 ; (see chapter 2 ) . O n October 20 AKR sought help from the hledia Access Project, a nonprofit telecornn~unicationslmv fir111 in Washington, DC.';Since CSSR had filed \vith the California secretary of state as "Californians for Statewide Smoking Restrictions-Yes on I 88, a committee of Hotels, Restaurants, Philip hIorris, Inc. and other tobacco companies," as required by California law, the Media Access Project believed the Federd Communications Comn~ission(FCC) would likely agree that all CSSR's advertisen~entsshould reveal the entire committee name. l ' O n October l r XNR informed all radio broadcasters running CSSR's

Battles over Preemption

24 3

advertising that their failure to reveal CSSR's complete legal name at the end of all commercials was in violation of FCC regulations and that unless the advertisements were corrected by October 24, ANR would file a complaint against the station with the FCC.'" Many stations immediately changed the commercial^.^" On October 25 ANR filed a complaint with the FCC against several stations who had refused to comply.'4oIn addition to forcing many stations to change the Yes on I 8 8 advertisements, the controversy surrounding the FCC complaints focused the media on Proposition I 8 8. ANR's actions took place the same day that the Coalition held a press conference unveiling its Koop advertisement, with the hope of generating free media attention. (At that point the Coalition still did not have money to purchase air time to run the advertisements.) Although the other Coalition members failed at first to see the value of the ANR strategy, once the complaint proved useful, they cooperated with ANR. Ten days later the Coalition joined ANR in a new complaint to the FCC against television broadcasters who refused to modify CSSR's advertisements to disclose the tobacco companies' involvement.14 On November I the FCC made an informal determination that proper disclosure after CSSR's commercials should include the information about tobacco industry sponsorship.142 By November 2, 1994, the tobacco industry's tracking polls showed that Proposition I 88 was losing, along with these findings: As voters become more aware of the initiative's sponsorship, thev tend to become opposed to Proposition 188. We have learned the opposition has doubled their air time purchase for the remainder of the campaign using Wellness Foundation money. We have targeted mailings, television and radio spots dropping during the next three to five days. Unpaid media continues to be manageable, but the infusion of Proposition 99 ads and Wellness Foundation funded ads are responsible for the shift in poll n u m b e r ~ . ' ~ '

On November 8, Proposition 188 was defeated by a vote of 71 percent against to 29 percent for-the widest spread of any measure on the ballot. Thirty-eight percent of the people who voted against Proposition r 88 stated that they did so to protect smoke-free public places, and another 22 percent voted against it because it was sponsored by the tobacco industry.l4 Seventeen percent of the people who voted for the initiative did so because they still felt it was an anti-smoking measure. Proposition 188 lost in every county in California, liberal and conservative, ur-

ban and rural. As Philip Morris's overwheln~ingdefeat at the polls demonstrated, tobacco control had become a popular issue that cut across all demographic, geographic, and party lines. According to Peter Hanauer, one of the original tobacco control activists from the Proposition j campaign of 1978, "That was the icing on the cake in terms of showing the extent to which the tobacco industry had fallen out of favor." 1 4 ' AB I was implemented on January I , r 9 9 5 Restrictions o n smoking in bars \vere to take effect January r , 1997. The following year the tobacco industry convinced the Legislature to delay the smoke-free har provision until January I , 1998; the public health groups, w h o thought that the state \vas not ready for smoke-free bat-s at the time, put up only token opposition. In the fall of 1997 the tohacco industry tried t o delay the effective date again. This time the health groups mobilized and beat the industry. Senate president pro tern Bill Lockyer shifted sides and helped the health groups defeat the tobacco industry. O n January T , 1998, a11 bars in California became smoke free. CONCLUSION In California 1994 \vas a busy year for tobacco control. By bringing together business, labor, local government, and health organizations, Friedman and the AB L 3 support coalition s~iccessfullytransformed puhlic sentiment against smoking into statewide legislation that the tobacco industry did not like. The voluntary health agencies disseminated information about the adverse health effects of secondhand smoke, the CRA helped dispel fears that state smoking restrictions would hurt the restaurant business, and the L e a g ~ ~ofe Cities lent support to arguments that the hill would not limit the power of local governments to pass stricter restrictions than those contained in the bill. The coalition prevented the tobacco industry from taking control of the hill and passing a blatantly pro-industry version in the guise of tobacco control. However, there Lvas n o consensus among California's tobacco control advocates on whether it was acceptable t o con~promiseon preemption. Tobacco control advocates in Sacramento viewed the preemption clause in AB 13 as an acceptable compromise because of its T O O percent smoke-free mandate. They did not consider players outside Sacramento relevant, an attitude that damaged efforts t o build support in the field for state-level legislative efforts. When asked about the disagreement within the California tobacco control movement over AB 1 3 , a representative

Rattles over Preemption

24 i

of the ACS's Sacranlento Public Issues Office responded, "Organizations that are interested in tobacco control a i d have Sacramet~to-basedlobbying offices n7ere111 agreement, and worked together regxdmg AB I 3 ." '-'" In 1994 the tobacco industry was nearly successful in tricking California voters into repealing their own tobacco control laws. If the tobacco industry had been able to maintain its original strategy of a stealth campaign, its effort might well have succeeded. By limiting itself to direct mail, the industry would have stayed within a medium where it could control the message and deprive the health c o m ~ n ~ m i of t y 1' platform. However, once the Industry was forced out Into the more publ~crealm of mainstream advert~smg,~tlost control oker the public discourse about Proposmon I 88. The P r o p o s ~ t ~ o188 n battle reun~fiedtobacco control advocates a s they put the fights over AB 13 behnd them. According to one LLA dlreck e . know, u e tor, "The whole process of that [AB I 3) was real d ~ v ~ s ~You had members on our ~ o ~ ~ l ~who t i o were n saxlng, 'No, t h ~ s1s great and although ~t'snot perfect, it's better to have someth~ngthan noth~ng.'And ~t'slike, 'But I S ~t good to have someth~ngthat's a plece of trash? That's gomg to elirn~nateever domg anvth~ngbetter?' . . . Huge arguments. Once it finally passed and then Prop r88 came along, it was interesting, everybody sort of banded back together in the fight against Philip Morr i ~ . " California's ~tobacco control community was able to unify against and defeat Philip Morris. But the passage of AB 13 and defeat of Proposition I 88 significantly distracted the health groups from the fight to reauthorize the Proposition 99 programs. The legislation authorizing expenditure of Proposition funds expired onJune 30,1994, at the height of the AB 13 debate and shortly after Proposition I 88 had qualified for the ballot. AB 13, i n particular, donlinated the tobacco control agenda in California, draining the resources of health groups and coinmanding attention by the press and So in what was a critical year for Proposition 99, its chief defenders were largely occupied elsewhere, which did not bode ell for reauthoi-ization. In addition, AB I 3 and Proposition r 8 8 would give the CMA and other medical groups cover for diverting Health Education Account rnonles. Propos~t~on 99 was dest~nedfor another hard yc'li- In the Legishture.

CHAPTER 12

The End of Acquiescence

By the beginning of 1994, California's tobacco control movement had become a national and international model of how to use communitybased programs and media t o reduce tobacco consumption and exposure to secondhand smoke: 334 communities had passed local tobacco co11trol ordinances, and the Legislature was close t o passing AB 13, which would require virtually all workplaces in California to become smoke free. California had the third-lowest per capita consumption of tobacco of any state, and the reduction in smoking in California was costing the tobacco industry hundreds of millions of dollars in lost sales every year. Despite the diversion of money from the Health Education Account and the Wilson administration's lack of enthusiasm for i~nplementingthe anti-tobacco program, there was n o longer any question about the effectiveness of Proposition 99's programs. But the Health Education and Research Accounts were hardly secure. The 1988 election approving Proposition 99 was over five years old, and the strong public support for those programs, as reflected in the vote, was n o longer as obvious as it had been when AB 7 j had passed in 1989. The June 30,1994, sunset of the legislation that authorized Proposition 99 expenditures-AB 99-meant that new authorizing legislation for Proposition 9 9 would have to be passed in 1994. Thanks to the governor's veto of SB 1088 late in 1993, both the Research Account and the Health Education Account were at risk in 1994. Indeed, Xssemhly hlember Phi1 Isen-

The End of Xcquiesccnce

21 7

berg (D-Sacramento), w h o had chaired the conference conlinittees that crafted AB 7 j and AB 99, referred t o the unspent $21 rnillion that had accrued in the Research Account as a "pool of opportunity." ' Without a concerted effort by tobacco control advocates to activate public support, the Legislature was again likely t o spend the Proposition 99 dollars as the politically powerful tobacco and medical interest groups would prefer-on medical services. Program advocates had three important things working in their favor: the success of the program ( a n d thus a growing confidence in those w h o were running this major anti-tobacco campaign), the continuing popularity of anti-tobacco policies and programs, and the existence of a program constituency that had been created in the field. Success at the legislative level required the ability t o rely on all three. But 1994 kvas a bad year for tobacco control advocates to be dedicating either staff o r funds to a campaign to preserve Proposition 97. They were stretched thin by the spring battle over AB I 3 and the looming fall battle over Proposition 188. Despite the inability of the health groups t o protect the integrity of Proposition 99 in the conference committee setting in previous years, they once more agreed to a conference committee, again headed by lsenberg. Reauthorization was to be another insider deal. T H E G O V E R N O R ' S 1994 -1 995 B U D G E T Repeating the pattern he had established in prior years, Governor Pete Wilson drew up a budget that again called for diverting Health Education and Research funds to medical services, only at a higher rate. Perhaps in response t o the bad press that the administration received when the American Lung Association (ALA) won its case over the media campaign, Wilson proposed giving the media campaign Section 41 protection, which meant that the media campaign would not be cut to get money for the protected medical programs. This decision would mean, however, that the local lead agencies (LLAs) a n d other local programs \vould be hit even harder by any Section 4; reductions. Following caseload adj~istmentsa n d diminishing revenues, the governor's budget cut LLA funding from $20 million in 1993 -1994 t o $I j million in 1994199 j, competitive grants were dropped from $ I S million t o $ T Omillion, and funds for schools from $22 million to $16 million. In total, the governor proposed that Health Education programs get only 12.7 percent of: the total tobacco tax revenues instead of the 20 percent required by

24 8

T h e End of Acq~uescence

the initiative. In one of the few instances in which the Puhlic Resources Account was threatened, the governor proposed a redirection of some Public Resources funding to the Child Health and Disability Prevention Program (CHDP).The governor proposed full funding for the Research Account, although there was no mention of the six months' worth of funds that had not been spent in the prior year. In the governor's budget summary under "Preventive Services" the tobacco education program was not mentioned, despite its success. Instead the governor mentioned Healthy Start, Access for Infants and Mothers (AIhI),and Education Now and Babies Later, among others. In describing the need for perinatal substance abuse services, alcohol and other drugs were specifically mentioned, but not tobacco.' The Wilson administration had no desire to draw public attention to tobacco. Wilson also tried to quiet opposition from the ALA and Senator Watson's office. A top Wilson administration official held a secret meeting in which she threatened to "cripple" the implementation of the Proposition 99 programs if Najera and Miller did not accept the diversions demanded by Wilson. Wilson's representative threatened to seek out "the most stupid, incompetent, belligerent bureaucrats" she could find and put them in charge of tobacco education. Further, all the committed and effective members of the TCS staff would be reassigned to a regulatory "Siberia." ' In fact, although the TCS staff was not replaced, the Wilson administration had already slowed the media campaign and would continue to hobble the program administratively until Wilson left office l11

1999.

The hypocrisy of the argument that the state's budget problems made it necessary to divert money from the Health Education Account to medical services was exposed Lvhen the Legislative Analyst reviewed the governor's proposal for XIhl. The analyst noted that AIhl, the program which provided subsidized private health insurance for poor pregnant women, cost more money than providing the same services through Medical, the state's Medicaid program. Moreover, AIM yielded worse clinical outcomes than MediCaL4 Thus, the state was paying more money to get worse outcomes in terms of serving this population. The analyst proposed that AIM be discontinued and the services be provided by expanding MediCal eligibility. Implementing the Legislative Analyst's proposal to s\vitch from AIM to MediCal would have saved $74 million dollars, more than \vas being diverted out of the Health Education Account. Thus, changing programs

The End of Acquiescence

24 9

could give better pregnancy outcomes and save enough money to avoid diversions from the Health Education Account for medical services. AIM, however, was to be preserved. It paid higher reimbursements to providers and involved the private insurance sector, which meant that it had powerful friends, especially the California Medical Association (CMA). T H E CREATION O F AB 816 Isenberg had generally been able to win consensus over the expenditure of Proposition 99 funds in prior years. In January 1994 he telephoned ALA lobbyist Tony Najera to discuss the reauthorization. Isenberg wanted Najera's viewpoint on whether he should again chair the conference committee that would handle Proposition 99 reauthorization through a bill named AB 816. According to Najera, Phi1 Isenberg called me personally. I can just remember the day so clearly in the first week in January. He said, "Tony, I've been encouraged to carry the ball and to chair a conference committee and to carry the bill on reauthorization. What do you think I ought to do?" I encouraged him to d o it because I remembered my days with AB 75, that he was in fact one of our champions. He also had been the chief engineer in previous reauthorizations which I thought were a fair process. The process really really broke down during the AB 99 process and it was never recaptured for AB 816. So for me I encouraged Isenberg . . . and I said, "I think what you need to do is have a conference call with me, CMA, Western Center [for Law and Poverty]," and I did. That was to me the turning point in terms of what role I saw he was going to want to play for this.'

According to Najera, Isenberg was willing to chair the committee if there was "agreement amongst all of us," which meant that the principals agreed to the status quo. When interviewed later, several of the principals had differing views of what this "agreement" had been. To Isenberg, "status quo" meant that everyone agreed to use the process that had been used with AB 75 and AB 99 -a conference committee and behind-the-scenes deal-making6 Thus, while "status quo" also likely meant continued dwindling of funds for Health Education and Research programs and another "insider" deal, this deal had not been explicitly struck. When asked if she perceived that a deal had been made early with Isenberg, Elizabeth McNeil, the CMA's chief lobbyist on Proposition 99 in 1994, said she thought the status quo which had been agreed to included the maintenance of the AB 99 funding pattern. According to McNeil,

2j0

The End ot X ~ c l u ~ e s ~ e n ~ e

We had lots of meetings with Tony [r\"~jcra]and John [hiiller], the hospitals, us, and the Western Center a h o ~ Prop ~ t 99 reauthorization. A t t h time, we rill fcllt going ii7 that prett?' n~trchtrj8ir7gt o do st~7tttsp o '2nd m z k e c w c rt u ~ z s ~ r m t h o n : c d ~ r mkir~dof the progrmz. And later on, the Lung Association and others decided no, they didn't want t o fund CHIIP. They wanted it out s and they wanted increaes for their programs. So we do feel like that \ r ~ nor the p l m that \Ire all went in xrith ~ r h e nme asked Isenberg t o sponsor the bill. That's stro~iglyho\r I felt ahout where \re went in. . . . I don't know if there was misconimunication. It lvasn't articu1,lted strongly where his groups were reall!, commg from. I think he [ K ~ j e r a ] ' ssensit~retoo because he \vas part of the group that authorized the origin~llCHDP expenditure m c l was criticized for doing that, ad I think was really feeling that criticism. So the tune changed and ~t n x s a problem amongst all of u s . lemphas~sadded]

The XLX's name appears n ~ t the h ChIA, C a l ~ f o r n ~Associ,~t~on d of Hosp i t ~ l sand Health Sxstems (CAHHS),and the Western Center for La\\ and Po\ert\ as SuppoIting the terslon of AB 8 1 h that the Senate m d Xssembl\ ~ o t e dmto the Conference Committee. The b111 extended the sunsets for both the progl a m ~ i u t h o r ~ z a t ~m o nds the program approprl'Itions t o J u l ~I , 1996, and '11~0 ~ u t h o r m dthe expend~turesfrom the Research X c ~ o u n tSenator .~ D ~ a n WCitson e (D-LosAngeles), the longtme c l ~ ~ ~ m of p ~the o nHealth Fducat~onAccount and John Miller's boss, ~ o t e d for AB 8 T h at t h ~ sstage. h ~ c o r d i n gto Najela, he ,111d h l ~ l l e rhad ,igreed to a quiet strateg, of lettmg the L e g ~ s l ~ l t um,ike ~ e ~ t decis~on s ,111d then t a k ~ n gthe Issue to court. H e s'i~d,"Vl'e were not demanding [full] zo'k [fundmg for He,ilth \Y e n e r e prepared t o d o \X hat U e had t o d o 111 order Educat~on]~niti,ill~. to get ~t out of here and take ~tt o the courts, and let the hattle he there r ~ e s that W ~ l s o nwould not wln reand not ~n here."' The . ~ o l ~ i n t , ~hoped elect1011 and that a nen D e m o c r , ~ t ~go\ernor c would be more slmpato the anti-tobxco educat~on thet~c,Ignol lng the fact t l ~ opposition ~ t , ~ n drese,~rcliprograms In the Legislature n a s cpearheaded b~ Speaker Will~eBrown, a Democr,lt. In an\ e\ent, IYrilson \\on reelect~onlater that rear. OBJECTIONS T O C H D P The early commitment by Najera and Miller to maintain the status quo and accept continued diversions of funds from the Health Education Account to CHDP and other medical services ran into trouble with the constit~iencythat Proposition 99 had spawned. The Sacramento-based lobbyists were not used t o considering the grassroots in their thinking.

The End of Acquiescence

251

The Sacramento lobbyists were used to compromising in the Legislature ~vhereaslocal grassroots activists were used to winning pitched battles with the tobacco industry. These two cultures clashed in October 1993 at the California Strategic Summit on the Future of Tobacco Control, a two-day meeting funded by the California Wellness Foundation to develop recornmendations for the Legislature regarding reauthorization. Four major recommendations emerged from this conierence: ( T ) the new legislation should authorize the program until the year 2000, ( 2 ) the diversion of Health Education monies into medical services should stop, ( 3 ) the Health Education Xccount should receive 20 percent of the tax money, as the voters mandated, and ( 4 ) Section 43 should be dropped."' The program constituency was tired of compromise. There Lvas a strong feeling that Najera and the chair of the Tobacco Education Oversight Committee (TEOC), Carolyn Mat-tin, who a r g ~ ~ eagainst d the meeting's recommendations as being unrealistic, had already agreed to maintain the status quo in 1994. The conference forced the issue of demanding the full r o percent of revenues for anti-tobacco education. There was pressure to fight a hard and public fight. The public health groups also came under pressure from a study c o n nlissioned hy the Department of Health Services (DHS) to examine the structure of the Proposition 99 program.l l The committee preparing the study was chaired by Dr. Thornas Novotny of the federal Centers for Disease Control and Prevention (CDC)and the School of I'uhlic Health at the University of California at Berkeley. The central conclusion of the report was that the greatest threat to the tobacco education program xvas the "lack of will on the part of the government to implement the Health Education Account as originally mandated by the voters." (The draft of the report went to DHS in December 1993, but it was not released until February 1994. Health groups suspected that the release of the report, which was critical of the governor, was delayed until after IZimherly BelshG was confirmed as head of the DHS.") The second threat was the "failure of key constituent groups to hold the government fully accountable to the will of the voters." The ALX's position on Proposition 99 hardened. In an Action Alert sent by ALX on February 16, 1994, ALA urged recipients to write the members of the Conference Committee and request the following: I

. the removal of Sectmn 43.

2.

the removd of CHDP fundmg.

The End ot .Acqu~escence

252

t of LLA rnone! go t o permatal . reinoval of the requirement t h ~ 7, funding.

4. full

20"%

f d ~ l l of g health education. l 4

The boards of the XLX , ~ n dthe alifolnia T h o ~ a c i cSocieta ('1 related med~c'd a s s o c ~ a t ~ o nadopted ) motions that the1 n o u l d not accept less than 20 percent f u ~ i d i n gfor the Health E d u c a t ~ o nAccount." d necessar~lrtranslate into an effecti\e But tahing oil have t w o tools. You have a carrot and you hare a stick. The h, really good ndl-ocates figure out when t o use which and ho\v m ~ ~ c and whether you use both. What the voluntaries were using mostly \vas the c x rot. They \aid the!. were doing a n aggressive fight, b u t they clidn't really k n o w \\,hat that meant. . . . I think it means [ t o them] that e\.cry no\\, and then they write a sort of tough letter that they don't puhlici7e in any Lvay. And that they jpe,lk u p kind of boldly behind the scenes in closed-door scss~ons."~

If ANR \\as t o get ~nvolbed,~t \\ould he o u t s ~ d ethe L e g ~ a l ~ ~ t u rback e's l001113. httornc! A. Lee Sanders, who had been executn e dlrector o f C allfornia Common Causc in the 1970s, wanted t o d o something t o discourage politicians from taking money from the tobacco industry. H e had just formed SAYNO t o encourage candidates for office in California t o refuse such contributions. When he contacted Stanton Glantz for information o n canlpalgil c o n t r ~ b u t ~ o nh!s the tobacco ~ndustry,G l m t z expressed f r u s t r , ~ t ~ othat n none of the health groups had sued t o restore the Integrlt? of Proposmon 99. When Sanders expressed Interest, G l m t z put hi~m111 touch w ~ t hANR, whlch jollied with Lmders b e c ~ u s eot the orgmlzat~on'sbel~efIn the power of o u t s ~ d estr,tteg~es.;- On Februar\ 2, 1994, SAYNO m d A N R sent formal dem,tnd letters to the C ~ l ~ f o r nState r,~ Trereasui-er and Controller, a s k ~ n gfor the return ot funds ,llre,~d! d ~crted r from the P r o p o s ~ t ~ o99 n Health E d u c a t ~ o nAccount m d t h r e a t e n ~ n gt o

2 58

The End of Acquiescence

sue i f the Inone1 was not returned. A N R i n ~ i t e dALX and the other voluntar\ health agencies to join their effort, but the\ "mould h a l e nothmg of ~tat the time." '" On the niornlng of March 23, ~ ~ 1hours s t before the Conterence Comrnlttee was scheduled t o meet to cons~derAB 816, ANR and SAYNO held a press conierence in S ~ c r a i n e n t ot o announce that the\ had filed 1' lawsuit a g a n s t the got ernor, the Legislature, ~ n others d seekmg reatorclt ~ o nof the $ I 6 j mill~onthat had been diverted irom the Health Education Account Into m e d m l serllces under AB 75 and AB L)L) and '1tternpting to stop future mlsapproprlatiotis. The lamsu~t(ANR et al. State of Ca11foim1, SJC. Super. Ct. No. 539 577) derailed the plan for a quick passage of AB 8 T 6. N,~jeraand the other lobbjists were i u r ~ o u s The) . bel~e\cdthat the AKR l a n s u ~made t the AB 8 16 fight more diffkult bec'iuse the l e g ~ s l a t oS ~ did not separate ALX from XNR. Najera t r ~ e dt o distmce hunself from the suit, and 'In Aprd 8 ALA press release mnounced thdt the American Lung Associ,lt~onof Cdifornia "is not currenth a p r t \ to, or ~ n ~ . o l \ e d t h) Americms for Nonsmokers' R ~ g h t s in an\ WJ) M ~ t h ,I, lau s u ~ filed ( A h R )m d Just Sal NOto Tobacco D o ~ g h(SAYNO)." Najera W J S stdl hoping for success at the lnside game that XNR WJS d~srupting. LJ.

75

THE C O N F E R E N C E C O h l h l I T T E E HEARTKG The Conference Committee held ~ t he,ir~ng s on AB 816 on ,\larch 2 3 , but most of the program ,id~.ocatesohserving the process thought th'lt the) had l~ttleab111t)to 'itfect the outcome. Iscnberg used the h ~ list t that CSR and the CMX had prepared and wideh circulated (without attrlb u t ~ o n to ) r ~ d l ~ uthe l e p r o g l a ~ n Accord~ng . to r\filler, those who wished to protect the Health Education Account were not given much of a n opportunity to do so: It \vas a f,~irlyperfunctory heclring. . . . I mean, after berdting us, they didn't take any evidence. Then Phil announced the findings that he intended to n1m.e the money out of Health Education into these other programs. And I remember Ken Maddy [Repnhlican minority leader] was sitting nest t o him and ICen turned to him m d s d , "But we all agreed that that \vas not possible." And Phil said something t o the effect that "things are different no\v." And 1 recllized that that was the first hladdy knew they were going to go for four-fifths a n d that they \Yere going t o change it. It was a Democratic initiat~ve,8 1 6 was. . . . Lladdy quickly realired ivhat was going on and got 011 board i11 a h~~rrv.'~'

The End of Acquiescence

2-9

Supporters of the he,llth e d u c a t ~ o nprograms were s u r p r ~ s e dt o find t h ~ t Isenberg was a le,lder m attacking the programs. Isenberg sought t o p a n t the h e ~ l t hadvocates w h o were seeking t o protect P r o p o s ~ t i o n9 9 as being ~ ~ 1another st s p e c ~ a lmterest n o w addicted t o p ~ ~ h flu~n dc ~ n g .Isenberg pointed o u t t o a Los Angeles Tzmes reporter t h ~ mt a n \ of the same groups w h o were n o w fightmg the use of Health E d ~ ~ c a t ~ACCOLIII~ on funds for health screelung and pren,tt,~la r e p r o g r a n s had 'igreed t o t h ~ s use In the past. According t o Isenberg, these groups "have taken on the garb of a religious crusade." hlartin, responding o n behalf of the ALA, wrote that they ivere "shocked" by Isenberg's She pointed o u t that Proposition 99 funds distributed t o AI,X represented less than 4 percent of ALA's budgets from around the state of California and was only .OOI percent of the 1993-1994 tax revenues. She argued that the appropriation should be made, not onl) h e c a ~ ~ s~te w'is a voter mandate hut also hecause the program hdd d e ~ n o n s t r ~ l t eits d effectixeneis. She pomted o u t that " L ~ I ~ I C I Z1' Ifen ~ ~ programs c m n o t e r a e the tremendous total m pact ot t h ~ complex s preientlon program." Neither ACS nor A H A took P r o p o s i t ~ o n9 9 money. T h e U m i e r ~ ~ of t y C A f o r n ~ had ~ i generdly been qulet about the Rese,lrch Account, reflecting its posit1011 '1s a p ~ i b l ~body c whose board of regents is chaired by the governor. This stance sometimes frustrated the university's allies. For example, in I 9 9 2 A H A officials had written t o University of California president Jack Peltason t o express their disappointment a t the university's failure t o oppose diversion of the Kesearch Account fuilds and the hope that "the University of California will take LI leading role in opposing such a t t e i n p t ~ . " ~Put " t o the test again in 1994, the university would again play a cautious role. UC lobbyist Cathrine Castoreno was frustrated trying t o protect the Research Account in the 1994 hearings. University representatives testified o n behalf of the Research Account-but without dra\ving any lines in the sand-and, in fact, worked t o nccommodate Isenberg. According t o Castoreno,

'

I gave explicit testimony about what was most definitel) illegal versus \\,hat they might possibly be able to do. This is a point in the proceedings to\vards the end of the Conference Committee on 8 r 6 where it was clear that there L V ~ going S to be a diversion of Research Account monies. The issue was how much and ho\v. We were pretty well heat up hy that time . . . W, in an effort to try and keep the program from being completely dcf~undedand to keep them froni making a move that would be wholly illegal, 1 worked with our counsel arid Dr. [Cornelius] Hopper [UC's vice president for health rlff'airs]to put

260

The End o f hcqu~e\ience

together a n anal! sis o f 9 9 and see, given their goal to divert money, horn they might do it legally. . . . \VC made it very clear that simply u s i n ~the money straight out of the Rcsearch Account for health services or any other purpose was obviously and clearly illegal and challengeable in court. And they thanked LIS very much for that [l~ughter].'" The university even provided a written proposal o n how the Research Xccount might legitimately be used for other purposes, such as by explicitly amending the initiative to put the diverted money into the Unallocated Acco~lntinstead of clirectly funding medical care from the Research Account. The university's official position on reducing the Research Account from 5 percent to 3 percent xvas " n e ~ l t r a l . " ~ ' The schools \\.ere also subjected to a harsh review by Isenberg, w h o was frustrated h>- the lack of tobacco programming there. By March ~ 9 9 4after , the program had been running for four years in the schools, the evaluation conducted for the California Department of Education ( C D E ) by South\vest Regional Laboratory reported that 4 1 percent of )-outh in grades 7 through T Z reported at least one tobacco lesson a n d activity event.4' This finding also meant, of course, that j 9 percent did not, despite the fact that the schools had received a total of 'nillion in Proposition 9 9 funds in the 1 9 9 3 -1994 fiscal year.4' Through the spring of 1 9 9 4 all schools were getting entitlement money based on average daily attendance. The report also pointed out that "the DATE [Drug, Alcohol, and Tobacco Education] program needs clear ctefinition of the model and its components in order to standardize and focus prevention and reduction efforts targeting school y ~ u t h . " ~The ' health groups generally agreed with Isenberg's criticisms of the schools."' T H E ChIA

In ~ 9 9 Stew 2 T~IOIII~SOII, w h o had served as Assembly Speaker Willie Brown's chief of staff a n d the head of the Assembly Office of Research, had moved to the Ch1X t o become its vice president and head lobbyist. This job change put him in a powerful position from which to continue t o advocate for the diversions out of the Health Education Account into CHDP, a pprgram he had helped design years earlier while working for Brown. Brown and the tobacco industry were both interested in shifting Health Education and Research monies into other programs. The CIMX continued to portray its position as a painful choice between taking care of poor children and funding prevention programs that have a longer-term benefit. In the end, of course, providing money

The End of Acquiescence

261

for medical providers always took priority. A CMA Executive Committee report stated, "While CMA policy supports the funding of the medical research program and health education, it generally gives funding priority to health care programs for the uninsured. In 1990 and with agreement from the health education community, CMA supported the proposal to fund CHPD [sic]screens for California's poor children from the health education account. Later CMA supported the addition of AIM, MRMIP and OBRA perinatal services."" The statement reflects the CMA's long-established position that the program allocations among the different accounts in Proposition 99 are not binding. The framing of the issue as a choice between women and children on one hand and health education on the other had relieved the tobacco industry of the need to take overt measures against the Proposition 99 Health Education and Research programs. Legislators were not voting for the tobacco industry; they were voting for pregnant women and poor children. The CMA supported this view from the right, and the Western Center for Law and Poverty supported it from the left. The medical interests and counties warned the ALA that they intended to pursue a four-fifths vote in the Legislature to divert the Health Education and Research money into medical programs. In a private meeting hosted by the County Supervisors' Association, the CMA, the CAHHS, and the Western Center for Law and Poverty, among others, informed ALA and Miller that passage by a four-fifths majority vote would occur and threatened that, if the voluntaries did not accept the terms they offered, the health community would take the entire Education and Research Accounts. Najera and Miller refused and promised there would be "blood on the walls." Whereas the Health Education Account had been under siege in previous authorization battles, the Research Account had been reasonably well protected. But in 1994 the CMA had the Research Account in its sights. Among other things, the program had funded studies on campaign contributions by the tobacco industry to members of the California Legislature as well as an analysis of the implementation of Proposition 99 highlighted the pattern of diversions of funds. This work angered Willie Brown, who demanded that the University of California stop this ~ o r k . ~ ' , ~ " o o nafter the university refused, the CMA began attacking the Research Account as a waste of money and agitating to use the money for medical services. Elizabeth McNeil, one of the CMA lobbyists, said that the CMA had neither prepared nor circulated the hit list of Health Education and Re-

zhz

The End of Xcqu~escence

search A ~ c o u n project\. t She declmed t o speciil,~tea b o u t w h o 11~dprepared them and went o n t o s~!, Research hy far got the most crit~cisniand they didn't do a good lob at defending themselves . . . and they [the Conference Committee] took those dollars to hnlance the budget basically m d fund some kids' health progrcmls that I have to say are very worthy. And that was J tough call, hut we did support the overall dynamics because of the political pressures on getting the budget and with budget deticits and the import,lnce that we place on some of these indigent programs , ~ n dwhen there was some frivolous research projects got being made, hut in the ing on perhapi. . . . K'e really didn't support t h ~ shift end n.e supported the nrhole dec~l, felt like it was the hest compromise \\-c were going to get.t got the Steve Scott of the C ~ l l f o n ]~o~~ al i . m lreported, h o w e i e r , t h ~ he list t r o m t h e CXIX. h l o r e i m p o r t m t , he s,m CMX's s u p p o r t of t h e diversions ,IS Important t o getting them t h r o u g h the Leg~slature: The Californicl ?IIedicnl Association got successivel!- more hraren in its npproach and its willingness to kind of undermine the tenets of the education fund. I remember i i l the Conference Committee meetings on [AB] 816, Xssemblynan Isenberg started rollmg out the horror stories about the Rese,lrch Account and ho\v the Research Account n.as being used for these . . . ridiculous grmrs. X ~ i dI got 3 list of those ridiculous grants from the California Medical Associatmn. It w ~ leaked s to me through the CA'lA. . . . h u talk to their lobbyist and she'll deny that tlic!- were openly advocating the diversions, d +yee to the diversions to that it W ~ a~ n Suiifort~marenecessit!, that the!- h ~ to rn,~kethe tradeoff. Rut in truth they were right in there pitching subtly o n the whole qucstion of, and not so subtly, increasingly less subtl). o n the issur of the problems n.lth the Research Account. . . . So a lot of [he pushing ,lgainst the Rese,~rchand Education X C ~ O I I or I I ~in, favor of nmre money going to disect medical services, nL1scoming t r o m the C,llitoi-n~abled~calXssoci,~tion.~-

In ' i d d i t ~ o nt o ~ t t ~ i c k t~hne gR e s e x c h Account,

J

l l a ? 1994 CMA re-

p o r t lust~fiedt h e use of H e a l t h E d i ~ c ~ t i oXccouilt n n i o n ~ e sfor C H D P "due t o t h e , ~ i i t ~ - s m o k ~endgu c , ~ t ~ ocno m p o n e n t of t h e program.""' It reported t h a t the , ~ d m ~ n l s t r a t ~ottered on " e d u c a t ~ o nr e p r e s e n t , ~ t i ~ e s ",I com~7ron11se-capp1ng CHDP ~t $30 m ~ l l ~ oa n\ear-but n e r e turned damn. T h c report c o m m e n t s t h ~ some t " q ~ ~ e s t i o n ~ 'education' ~ble projp r o g r a m ( $ 1 7 j , o o o ) , 1' ects," such a s anti-tobacco s p o n s o r s h ~ po t a s k ~ race c a r ( $ ~ o o , o o o ) , a n d 1' h g h school r'lp contest ( $ 1 7 j,000), led " m a n r " conferees t o belleLe t h ~ there t n ~ ' lsd e q u x e i u n d m g of both t h e H e a l t h E d u c a t ~ o nAccount a n d CHDP. T h e projects t h a t t h e CSR a n d t h e ChlX used '1s examples o t h i r o l o u s e x p e n d ~ t u r e swere s o m e o t t h e inost 11111o~at1r'ep r o g r m i s sp,lwned by P r o p o s ~ t ~ o99." n '"

The E n d of Acquiescence

r 6 ~

Ph) s ~ c ~ Roger an Kenned!, a CMX member who worked throughout the mnetles t o get the CMA t o support he'ilth e d u c m o n and the c h a ~ r of Santa Clar,i Count\ 'S t o h x c o control coalit~on,belleled that the docd tors had talked themselves ~ n t oa h ~ posltlon: \Y'hen the di\.ersions occurred, 1 had a number of discussions mith some very highl! reiponsihle people that I respect and have known for a long time . . . people \v110 lvere in significant roles, people o n the board, who were of the view that this money was so crucial to provide care for the kids iri C:i11hrnla. . . . But I think they fooled themselves into thinking that the! couldn't take care of kids \vithout this money. . . . This allo\ved them to overlook the t ~ ctth ~AIL1 t program was, by everybody's analysis, extremel> inefficient and \\.as money t l ~could t have hecn covered in another \\.ay; MediCnl \vould have hcen a much hcttrr \vay.-" Kennedy believcd that the CMX should 11ar.e been willing t o call VC1ilson's hluff and saw t w o key reasons tor the CillA's unwillingness t o spend political capital o n this issue. First, thc C M 4needed the governor's support o n other important matters and did not n7ant t o alienate him on this issue. According t o Kennedy, "lt was the easier path t o g o that didn't recl~lirep ~ ~ s h i Wilson ng and angering Wilson. The CXIX leadership wanted to work with Wilson o n other issues, m d they felt that t o p ~ l s hhim o n this would compromise their ability t o work with him. At this point, he really had his heels just dug in. So they felt he wouldn't move o n this or, if they forced him t o move o n this, it would harm them in other ways."4S Second, the CMA gives priority to the pocketbook issues of its members. As Keimedy explained, "The CMh has already been in trouble for a number of years in terms of membership hecause doctors' incomes are dropping and they don't see the value. So if the CMX isn't using its political clout t o ward off the optometrists and instead is going along with making sure that the money from Prop L)L) goes t o fund tohacco cducation instead going into doctors' pockets, the CMA is going t o look like they're not really supporting their m e r n l ~ e r s . " - ' ~ T h uitswas in the ChlA's interests t o support the same agenda that the tobacco industry had: further diversions of Proposition 9 9 a n t i - t o b ~ ~ c Health co Education and Research money into medical services.

LAST-MINUTE EFFORTS T O S T O P AB 8 16 There were some I , ~ s t - n ~ i ~efforts ~ u t e t o x t r a c t p ~ ~ b l t~o cthe ~ Proposlt ~ tion 9 9 reauthor1z~t1011fight. O n June 2 the C o a h t ~ o nh ~ Jd press con-

264

The Fnd of Xcq~~~escence

ference featuring Senators Art Torres (D-Los Angeles) and Tom Hayden (D-Santa hlonica) and Assembly Member Delaine Eastin (D-Fremont)t o "expose the budget 'smokescreen' being used by opponents of the successful community-based anti-tobacco education."" It attracted little coverage. A June h Action Alert, issued in both English and Spanish by the Coalition t o Save Proposition 9 9 , tried t o generate pressure o n the Legislature."' O n July 6 Joe Holsinger, a deputy superintendent at CDE, wrote a letter cosigned by representatives of a variety of education organizations and school districts t o Assembly Speaker Willie Brown and Senate President p r o tern Bill Lockyer, asking for their help in stopping the diversion of f ~ n d s . ' ~;\LA ~ ' ~issued a press release containing a statement from Spencer Koerner, the chairman of the board of XLA, that explicitly confronted the medical lobby: Today marks the beginning of the end of the world's most successful tobacco use prevention and education campaigns. . . . AB 816 destroys that program hy diverting money earmarked by the voters for education (20% of the revenues of the tobacco tax) into med~ccllcare programs. This in spite of the fact that over 70°&of the Propos~tion99 revenue is already being spent on ~ncdical care. 0 r g m 1 ; e d nzediciize represented by the California Medical Association ili~dC'ilifornm Associution of Hospitals C+ Health Sj~stenzs,and c-onzr n m i t y c h i c pro~~iders Icd Oy the 1Y'estertz Center on Law 6%P o ~ w t yhas sue-ressf~4lly / ~ i j d ~ k Ci7/ifo~n1il's ~'d tohi~ccoedu~iztionf t ~ n d sa s il~el/a s the filv perc-cnt des~gn~ltt'd ,for Y C S C ~ P C Ijenip11:lsis I.': added] ALX \\rote members of the Leg~slatureurging them t o vote 'Igalnst AB 816, warnlng that " \ n t h the pass,ige of AB 816, Californ~a'spopular anti-tobacco research m d e d u c a t ~ o nprogram w l 1 d ~ ae slow, painful death." '-' The governor personall) inter\ ened t o k ~ l the l t o b x c o research program. According t o Castoreno, she Lvas ,~hruptlyordered t o halt the lohb! ~ n efforts: g "I I\ ns busil) conr e j Ing the u n ~ \ e r s ~ t y 'opposition s t o the measure along R ~ t the h 1 o l u n t m e s . The director [of the u n ~ v e r s ~ t ySac's rarnento l o b b y ~ n goffice], Stele A r d i t t ~ ,came runnlng m t o the h a l l ~ v + s s like somebodx ~ ~ thad a l d ~ e dAnd . ~t shot a pain w ~ t h look o n h ~ face through heart and he conTel ed t h ~ the t go\ ernor had just called the [UC] pres~dent-Peltaon, at the time-to SJI that AB 8 I 6 was part of the budget package. It's ahsolutelr i m p o r t m t to h1111, he wanted it and u e needed t o stop opposlng it." ''The C M A wrote leg~slatorssupporting the bdl and presentmg its passage as a routme extenslon of the status quo: "kxcept tor the cuts t o the research account, which were part of the

The End of Xcq~ucscence

26 5

oler,ill state budget agreement, the bill d ~ s t r ~ b u t l'rop e s 99 tundc much the wav they have been ' ~ p p o r t ~ o n eslnce d the inception of Prop qy." " T H E FLOOR FIGHT The tobacco and medical interests could control when AB 816 would he heard in the Legislature. ALA anticipated they would schedule the hearing just before the summer recess, when Legislators were eager t o return home and unlikely t o think much about proposals before therm. The voluntary health agencies, knowing they lacked the clout to stop even a four-fifths vote in the Assembly, decided to concentrate their efforts on stopping the bill in the Senate. Miller believed that the core of liberal Democratic senators who truly cared about the issue would he tobacco control's best-indeed only-chance against the allied tohacco and medical interests.' Isenberg took up AB 816 in the Assembly o n the day before the summer break, describing the bill as a routine fiscal bill necessary t o halance the budget and fund important health programs. Few members bothered to read the bill, only a handful abstained, and the measure passed out of the Assembly with the necessary four-fifths vote. About two o'clock that same afternoon, Senator hlike Thornpson (DSanta Rosa) took up the bill in the Senate without ceremony-and it was immediately defeated. Thompson could not even achieve a majority, to say nothing of a four-fifths vote. The bill failed by a vote of 18-12. Thompson \\;as dumbfounded, and he immediately left the floor to notify AB 816's sponsors and author.' The tobacco and medical interests and county governments were galvanized into action, and the next four hours saw a dran~aticlegislative conflict. The three voluntary health agencies, p ~ ~ h l ihealth c officers, public schools, and the independent universities had stunned the multi-billiondollar tobacco and medical industries in a reniarkable upset. Watching the defeat on television in Senator D i m e Watson's office, the dozen o r so q could not believe their o\vn success. Minutes Proposition ~ ) proponents after the defeat of the bill, the Democrats withdrew from the floor for a closed caucus. Watson returned to her ofice and warned the celebrating tobacco control advocates that they could not relax; they were about to witness the full fury of the medical providers, the tobacco industry, and local governments. Back in session, the Senate violated its own procedural rules, granting

166

The End of Xcquiesccnce

AB 8 I 6 imined~ate"reconsideration" and m o t h e r \ ote. h l o r e than fih lobbyists spre,ld through the C,ipitol b u i l d ~ n gwith promises o r threats o r demands of support from the senator\. O n the floor, a passionate dehate T ~ J Sunder\xar, p ~ t c h m gthe Interests of the 111 and enfeebled ag'ilnst the oblig,ltion of the Legislature t o honor the will of the Loters. In ,I r e ~ n a r k ~ ~pol~tical ble er ent, G o ~ e r n o W r ~ l s o nleft his office ( w h ~ c l i is d s o located 111 the C ~ p i t o lbuild~ilg)and met n ~ t hSenator Marion Bergeson ( R - N e u p o r t Beach), J conscientious hlornion and the o n h Republicm determined t o resist the tobacco-medical coalition. This int o x e ~ n o rPcte cldent n ~ the s first m d 01111 t m e d u l ~ n ghis tenure t h ~ G W ~ l s o nleft 111soffice to influence '1 late o n the floor of the Senate. Cendte Repuhlicm i n i n o r ~ t \le'lder Ken M t d d ~deinaiided t h ~ ercir t member of the Republican caucus support AB 816 , ~ n drefused t o permit an\ Republican t o exit the caucus \xvthout a conimitment. The speaker of the -\ssembh, W ~ l l Blon ~ e 11, a p p e x e d o n the Senate floor n ith P1111Isenberg 'tnd pres\ured senatois t o kote tor AB 816. Bill L o c k ~ e r J, Democr,it, i n o ~ e dtrom desk t o desk d e r n a n d ~ n gD e m o c r a t ~ cr otes tor AB 8 L h . For three hours, the contest c o n t ~ n u e das other busmess n a s carried o ~ o ~n t the floor. Slon h , gr,~duall\,me$ ~ t a h l the ~ , gokernoi, legisl,~ti\eleaders l i ~ p ,m d count1 cmd medical lobh) ists m m e d r ote d t e r 1ore. X core group includ~ngCenator\ Art Torres (D-Los Angeles), D i m e W ~ t s o n (D-Los Angeles), Tom H'IT den ( D - S C m t L X~l o n ~ c a )and , Nicliolas Petris [ D - O a k l m d ) refused t o compl-ornlse. Vl'ith o n h one necess'm xote re111,11ning, lock^ er ,tnd h l a d d ~thre,ttened t o fl) 111 Sen,~toiBill Crar en (R-San Diego), w h o \\as s e r ~ o u s h111 n ~ t hlung d~se'lse,t o conclude the , mg AB 8 16 the necessarv fourcontest, and 1' I ~ s ht o l d ~ u ct o n ~ c d e d gir fifths vote. T H E FINAL BILI T h e governor signed the bill, lvhich contained cuts in anti-tobacco health education and research that \\.ere approximately ~ v h a he t had originally )j I9y.jproposed (figure l j ) . Over the t w o fiscal years ~ c ) c ) q - ~ c ) cand ~ 9 9 6AB , 816 appropriated only S94 n d l i o n for anti-tobacco education ( a s o p p ~ s e dt o the $I j7 inillion required by the initiative) and $8 million for research (as opposed t o the $4.4 million required by the initiative, plus the Sr l million left unexpended from the precious year).'"AB 8T 6 brought the total amount of diversions from the Health Education and Research Accounts t o medical services t o $;or million since Proposi-

The End of Acquiescence

ACA 14, May 87

Draft Initiative, June 87

' Education Environment (non-health)

Proposition 99

Actual (through 93-94)

0Medical care

AB 816 (94-96) Research

Unallocated

Figure 15. Proposition 99 funding allocations for AB 816. The legislation substantially accelerated the shift of money away from anti-tobacco education into medical services and now shifted funds from research too. It represented the most drastic diversion from the terms of Proposition 99 to date. tion 99 had passed, or about 34 percent of the total allocated by the voters to anti-tobacco education and research. The outcome in 1994 thus continued the downward spiral for the Health Education and Research Accounts that began in 1989 with the first CHDP compromise. There was one important difference, however: in 1994 all three voluntary health agencies actively-if unsuccessfully -opposed any diversion from the Health Education and Research Accounts to fund medical services. Assembly Member Terry Friedman (D-Santa Monica) abstained rather than voting against on AB 8 1 6 . ~A~ "no" vote would have deprived AB 816 of a four-fifths vote in the Assembly and stopped the diversions. In spite of all the work that the voluntary health agencies had done to pass his AB 13, which had barely made it through the Legislature in June 1994, Friedman did not support them on the AB 816 vote. Ironically, AB 13 was presented by some as an alternative to full funding of the Proposition 99 anti-tobacco education and research programs. For example, the Los Angeles Times editorialized in May 1994 that "the con-

268

T h e End of A i q n ~ e s c e n c e

tinuing diversion of: [Health Education] funds is regrettable, if seemingly una\oidable, but the gains against cigarette smoking . . . need not be lost. The best strategy, in our opinion, is passage of AB 1 3 , n-hich w o ~ d d make s m o k ~ n g~llegal111 most ~ v o r k p l ~ ~throughout ces the st'lte." 'AB 816 cont,uned three significmt progrml chmges. First, more controls were p ~ l ton the schools. Schools would receixe inone) based o n A\er,ige DJIII Attendance on11 for grades 4-8, w h l e h ~ g hschools ~ v o u l d have to ~ p p l vfor competitlr e grants. In ~ d d i t ~ oe\ciluat~on n, ot t h e ~ pror grams would be conducted b) e\ aluatoi-s In the DHS Tobacco Control Section (TCS), and the deadline for becoming tobacco tree \\as m o ~ e d . was less crit~calot Isenberg's stdnce on the trom 1996 to T L ) L ) ~ hliller schools than of h ~ stance s o n the health depxtments ~ n the d Research Account. Accord~ngt o hliller, "The kinds of chmges h c h had been proposed, d e e d what Phil proposed for the schools, I thmk were long overdue , l i d 'tppropriate. I would still h ~ m~ 111-school e program . . . l m d l restrict ~t t o those schools which express a n ~nterest."'" Second, public policy rese,lrch w'is '~dded'1s a priority are,? for the Rese'1rc11 Account funding hecause it \vas "an area of compelling interest" to the Legislature. Third, the Tobacco Education Oversight Coniinittee had oversight of the Research programs added t o its mission and was renamed the Tobacco Education and Research Oversight Committee (TEROC).These changes \\ere all consistent \vith positions the health groups had heen advocating. X h i l e the Health Education and Research Accounts took heavy hits from the Legislature, the governor'c proposal t o red~rectsome of the funds from the P u b l ~ cResources Account was dropped, so t h s account agcaul got more t h m its requ~rednilimlunl ot pelcent ot the Proposltion 9 9 dollars. According to hIiller, the Legislature "gase ahout ten m11utes t o thmking about rlpplng off the mountam lion moneb and walked awaj from that" because "the enl ~ronment,d~sts \I 111 k ~ c k their ass." "'" The ChlA's loblx ist, E l ~ z ~ b ehlcNeil, th had a s i m i l ~ response: i "I thmk . . . fight~ngthe en~ironn1ental1stsn a 1% hole other and 1' \vliole other fight, and I t h d that a lot of people ruade the assumption that that \vas a fight that M as not even ~z innable. And that here was a n a r e m where you had all he~1lt11care org,mzations, w h o 1ou could hope could help prioritize health care interests." There U ere important lessons here tor the tobacco control adkocates. The Public Resources Account \\as able to resist raids on its funds, and its advocates apparentl!. had to d o very little t o protect it hecause everyone knew the)- \\ere willing t o "kick

The End of Acquiescence

CONCLUSION By 1994, there was no question that Proposition 99 had succeeded in achieving the goal its framers had in mind: to create a large anti-tobacco education and research program that would accelerate the decline in tobacco consumption in California. Through the end of fiscal year 1993 1994, the Proposition 99 programs (combined with the impact of the price increase that accompanied the tax) had roughly tripled the rate of decline in cigarette consumption in California and prevented about 1.6 billion packs of cigarettes from being smoked, worth about $ 2 billion in pre-tax sales to the tobacco industry. Over this period of time, however, the Legislature and the governor had diverted a total of $301 million out of the anti-tobacco programs, about 34 percent of the total that the voters had set aside for these activities. Assuming a proportional drop in program effectiveness, these diversions probably resulted in an additional 530 million packs of cigarettes being consumed, worth about $800 million to the tobacco industry. Viewed from this perspective, the $23 million that the industry spent on campaign contributions and lobbying between 1988 and 1994 yielded a good return on investment.j6J8 Until 1994, full funding of anti-tobacco education had been withheld with the consent of the agencies who were responsible for lobbying for the Health Education and Research programs-ALA, ACS, AHA. The passage of AB 816, however, was different; it passed despite the strenuous objections of the three organizations. While the confrontation over the diversions in AB 816 did not put an end to them, the dispute did achieve two other objectives. It began to engage the media and the public, and it set the stage for a legal test of the diversions.

CHAPTER I j

The Lawsuits

BI the conclusion of the AB 8 r 6 fight, the p r ~ n c ~ p l eposltlon d t h ~ the t 1 oluntar\ health agencies h ~ td~ k e n left them free to pursue rel~etIn the courts. The fact that the Xmericm Lung Xssoc~ation(XLA), Xmcrlcan n had C'xncer Soclerr (,\CS), ' ~ n d A m e r ~ c a nHeart A s s o c ~ a t ~ o(XHX) agreed to the di~ersionsunder AB - 5 and AB 9 9 made ~t hot11 legall> and politicallr d~ffici~lt f o ~the o r g a n ~ z ~ t ~ toon srekerse the11 positlon and ch,illenge the d ~ r e r s ~ o nIns court when those bdls we1 e p a s e d . The AB 8 J 6 fight left them n ~ t l nl o such encumbrmce. During the confl~ctolel AB 8 1 h , elerr onc k n e a that the Issue \\ould end up 111 court. On the same d'i\ thdt the C onterence Comin~tteewas to T ote on AB 8 I h, Lee 5,inders and Americms for Nonsmokers' R ~ g h t s (XNK) had filed the LWNO s u ~ to t der'lll the earl1 deal that ANR beI i e ~ e dALX and others had m l d e t o cupport AB 816, includmg the d ~ ierslons. X h K also n , ~ n t e dto put e i e r j o n e on notice that there would he legal challenges to ,111) bdl t h ~ dt d not compl) I I ~ Propos~tion I 99. B\ the end o f the l e g ~ h t ier deh'ite m e r AB 8 16, the he'ilth groups U ere open11 threatenmg t o sue 1f the Legislature m d the goIernor pers~stedIn adoptmg l e g ~ s l a t ~ ot nh ~ n'ls t not consistent \vith Propos~tion99. The Leg~sl,~ture ,xttempted to head ofl or , ~ tle'lst weclken a p o t e n t ~ ~legal il challenge to AB 816 bv the Iva) it M rote the "find~ngs"portlon of the h l l . XI1 refe~encest o the m e d ~ c a lproblems caused b) smoklng n e r e el~rnlnated,and ~nsteadthe h111stated that "the efforts to reduce smokIng 111 California h'ire led to ,I drop 111 the consumpt~onof tobacco. AI-

though not on target t o meet the goal of ~ c h ~ e a~ 7~j-percent n g reduction 111 t o l ~ c c ocoilsuniptlon In al~formab~ the ) e x 1999 [establ~shed 111 AB 7j], the lesults are encoulag~ng."' XNR filed the first l a w s u ~ over t AB 816 o n August ; I , 1994, c ~ ~ k i ~ l g the court to block the $ 1 28 m~llionin expenditures from the H e d t h Education m d Research Accounts d u r ~ n gfiscal I ears ~ 9 9 4 -I 99 j and r99 j 1996 for purposes other than health educat~onand resexch. At that tune, ANR w ~ t h d r e wfrom the SAYNO s u ~tto puisue t h ~ nen7 s c ~ s esmce , a r its resolution would the legal m u e s In the AB 816 case were s ~ m ~ land m o ~ more e quickly for procedural reasons. (As a result, I ee Candeis and the Attorney General agreed to suspend actlon on the CAYNO s u ~ mt td the AB 816 case was resolled.) h week later, on September 6, ALA and ACS filed a 51n11larlawsu~t.(AHA refused t o join the s u ~ because t ~t thought that the fight would be costly m d the p l ~ ~ n t ~would f i s lose.L) The two lawsu~tswere consol~datedand hearcl 111 Super~orCourt 111 Sacramento. At issue was the nature of t u o programs-Chdd I-Tedth m d D ~ s , i b ~ l ~Pre\ent~oii t\ (CHDP) and Comprehens~\ePerinatal Outreach (CP0)-and whether thev could l e g ~ t i n i ~ ~ tbe e lcoils~dered ) "health educat~on." C H I L D HEALTH A N D DISABILITY P R E V E N T I O N AB 7 j had mandated that the Department of Health Services (DHS) issue protocols for an anti-tobacco component in CHDP, including protocols dissuading children from beginning t o smoke, encouraging cessation, and providing information o n the health effects of tobacco use on the user and nonsmokers, including children. DHS used a report produced hy the National Cancer Institute, H o w t o Help YOur I'utie~ztsStop S ~ n o k ing: A Nutionul Ciznccr Institute Manual for Physiciuns, and a supplement, Clinical Inte~wwtionsto Prevent Tobacco Use hy Children und Adolescents, as a model for developing and implementing tobacco prevention programs within CHDP.'-" According t o DHS, the department informed local agencies oithe antitobacco requirement, developed a protocol, added three questions on tobacco t o the CHDP claim forin, and provided training in the use of the pt-otocol.- While training targeted CHDP staff, the screens were actually performed by 4, j o o provider organizations, not local C H D P staff.s The "train the trainer" model used by DHS assumed that the county-level stdf, once trained, \vould indeed train the a c t ~ ~providers al and require that the tobacco use prevention be done. This model assumed a commit-

nient to anti-tobacco programs throughout CHDP that simply did not exist. Gordon Cumming, the DHS official responsible for CHDP, made his view of the CHDP funds clear when he met with the Tohacco Education Oversight Committee (TEOC)on December 3, 1991. \X7henasked about a formal evaluation, Cunlrning told TEOC that "tohacco funds were meant primarily to provide for screenings of more children, and that the only evaluation is that entailed in the program management."" He also admitted that lie had little faith in the data collected on the answers to the three tobacco questions "because of the context of its collection and the difficulty with just getting correct birth dates on the invoices."' Another indication of the level of CHDP's commitment to tobacco use prevention is the nature of its program. The National Cancer Institute (NCI) guidelines are much stronger than those of CHDP, even though the CHDP program \vas supposedly based on the NCI guidelines. Under the CHDP protocol, the only requirement was an answer to three question5 on the reimbursenient form: T.

Is the patient exposed to secondhand smoke?

2.

Does the patient use tobacco?

If the patient does use tobc~cco, was the patlent counseled about1 referred tor t o b a ~ c ouse p ~ v e n t l o nor cessation programs? "' 3.

The NCI guidelines recommend a much more involved role for the physician and the office staff. In 1994, lvhen asked to critique the CHDP protocol, Marc Manley, chief of the NCI Public Health Applications Research Branch and a coauthor of the NCI guidelines, saw wide varianccs between those guidelines and the CHDP protocol.' ' For example, while the CHDP protocol makes the creation of a smoke-free office a "suggested" intervention, the NCI guidelines state unequivocally, "Create a smoke-free office" and require a list of six steps for accomplishing this.-'."." Furthet-more, the NCI provides detailed guidance on how to deal with smoking by people of different ages. The CHDP protocol simply says, "Reinforce the positive behaviors [and] dissuade patients and parents from beginning to use tohxco." I u During the debate over AB 816, Lester Brcslo\v, a former head of DHS and a member of the TEOC, was more direct when he described CHDP: "'Issuing a protocol' on tobacco education, but doing nothing to follow-up on its use; bringing administrators and physician aides into brief 'training sessions"; and req~~iring checking three 'tobacco points'

on the p ~ y m e n claims t form-all for the expenditure of tens o i lnillions a total of more than T O O million dollars since 1989 -is lampooning p~iblichealth and Proposition 99.'' l 4 In one county, according to the L L h director, the C H D P staff did pick up brochures, train staff, and refer people to the LLA. Rut a physician in this county cornniented, "The fact is, given a busy practice, 1 5 minutes is probably generous because those pediatric visits are tnore like 7 V: t o ro minutes. . . . So I don't think much was actually happening. I think the idea that lvas education inone?, \vas just wishful thinking mol-e than honesty." l ' of dollars annuall!;

C O h l P R E H E K S I V E I'ElIINATXL O U T K E X C H T E O C had earlier raised concerns about the perinatal diversion. In the fall of 1992, Carolyn hlartin wrote the DHS director, Molly Joel Coye, on behdf of the T E O C espressmg concerns about how the money was b u n g used m d h o n ~ t use s would he e~alu,ltrd.'"Coye responded o n J m u a r ~22, S J J Ing t h ~ spending t Health Educat~onnlone\ on C P O \ v ~ s ~ p p r o p ~ ~ because ate the expenditure was "for~nulatedthrough a prohe'ilth tracted process l n \ o l ~ n the g \ arlous m t ~ - t o b a c c oconst~tuenc~es, care professionals, and others. The passage of these hills indicates that both the Leg~sl~iture m d the Xdnl~nlstrat~on approke o f the appl-oprlatlons 111 them." l - She then ind~catedthat plans were stdl mcomplete for the i m p l e m e n t ~ t ~ ootn the CPO component. The C P O dollar5 Lvel e go~ n t~ g be used hy countles to gener'lte t h e ~ rm a t c h ~ n gfundc for ,l tederd The progr,ini structure and the rules goierning ~t created c o n f ~ i s ~ o n the field, compounded h) a Ceptemher I 5 , 199 i , memo from Dileep B J ~ ,the h e ~ do f the DHS C h r o n ~ cDisease Control Branch (which Included the Tobacco Control Section, TCS), m d Rugmini Shah, the director of the state-level Maternal and C h ~ l dHealth ( M C H ) , d~scussmg the GPO program. Accord~ngto the memo, AB 9 9 broadened AB 75 to ~nclude~ d e n t ~ f ) i npregnant g n o m e n , 'Issesslng t h e ~ rhealth needs, m d fac~llt~ltmg the del11cry of s e r ~ l c e sto them. The fourth step, accordmg to the memo, ~ v to~ "provide s the necessary resources t o help the pregnant woman deal with the negative effects of tobacco use and e x p o s ~ ~ r e to cigarette smoke on herself, her baby, and her farnily." ' T h i s "provision of resources" step, however, violated the rules for federal matching f~111dsfor CPO, \vhich explicitly required that the dollars be used only for outreach, not to deliver services, such as anti-tobacco education. After J ve,ir of trylng to get CPO w o r k ~ n gIn the countles, the local 111

lead agencies (LLXs) coinplamed t o TEOC. In October 1 9 9 2 Breslow reported to C o \ e o n the widespread discontent among the LLAs 'lhout CPO. These feelmgs n ere o ~ c e d~t 1' stdtew~dee\ ent c'llled the Re\ olt Xgamst Tobdcco Conference, a meeting of a p p r o x ~ i n a t e l 300 ~ leaders of the C,ll~forn~a t o b ~ c c ocontrol movement. After the TEOC met with the leaders, B~eslowreported ,111egmons of illegal use of Proposlt~onc)c) funds to match teder'll funds, orders from M C H staff to d o t r a d ~ t ~ o n a l outreach, refus'lls to t r a n s t ~ fm i t o b ~ c c ouse pi-eventlon, and responses from M C H staff that were glken w ~ t h"arrogance and Insistence that no one can 'take monex a u a l froi-ri bah~es."' H e told Cove, "How the department can tolerate, and apparently even encourage, the diversion of such fuilds to LICH and CHDP without any substa~ltialeffort to ascertain \vhat is heing accomplished by those services toward tobacco use control is difficult to understand." l' hlartin also wrote Coye on behalf of the TEOC, which had received San Diego State's analysis of the county CPO plans, drawn up under contract with TCS. The majority of counties ( i r percent) did not even illclude any mention of providing enhanced tobacco use prevention in their CPO plans. She also mentioned the "abysmal response" to the ethnicspecific training workshops and anecdotal reports of county health officers tell~ngunlts to "spend the money as \ ou \\ ~sh-don't w o r n about tob~cco." B! J L ~199 T 3, Jenme Cook, w h o h ~ become d TEOC c h a r , had written to Co!e to a g a n express TLOC's concerns. She ~pecificall~ asked how 111uch ~t the H e ~ l t hEducation monex U ,IS bemg used to educate \\omen about the r ~ s k so f smoking and secondhand smoke. Coye sent her letter to Stephen Kessler, the d e p u t ~director for I ' r m a r ~ Care m d Farnlly Health, ho XI rote back, "I belle\ e ~t would not he the hest use ot these l~rmtedfunds to conduct the leiel of data collect~onand anal) s ~ required s to mswer l o u r spec~ficcluest~on."'~'N o t surprisingly, this response d ~ d llttle to assuage TEOC's concerns bout how the Inone! was b e ~ n g~lsed. The Issue of CHDP and CPO \\as on ~ t ns a y to the caul-ts. T H E H E A L T H GROUPS' VICTORY O n December 2, 1994. Super~orCourt judge Roger Warren heard the l ~ suu ~ t sa g a n s t AB X I 6. The Xttornej General a-gued that the medic,d p r o g ~ a m sto which funds h ~ been d d~vertedh ~ adhealth education component and thus could legitm,ltel\ be funded from the Health Educa-

tlon Account. For exiinple, the state argued that the d i \ e r s ~ o nof funds ll progrmi tor the poor, w ~ appropriate s to CHDP, J n ~ e d ~ c ,screenmg because three questions about smoking were included o n the forms and physicians were told to provide cessation advice. Evidence presented by ANR and XLAIXCS, however, showed that C H D P and CPO were not legitimate anti-tobacco programs: 8 0 per-cent of C H D P health screens involved children under six years of age and only 0.4 percent of those eligible for the screens s n ~ o k e d .XI1 ~ ' county CPO services u w e funded by Proposition 99 Health Education Account monies, and 86 percent of these funds were used to generate matching funds for federal money. Uiider federal guidelines, state matching funds could not he used for interventions to prevent smoking o r interventions to stop exposure to smoke during pregnanq and 'liter b ~ r t h It . was theretore imposs~hlefor these funds t o be used for a n t i - t o b x c o educat~on. O n December 2 2 , 1994, judge Warren ruled that AB 816 ~ l l e g d dil~ xerted $128 mrllion trom the Health Educat~onand Kese'irch Accounts. t a dog b~ c ~ l l ~ ~t n gF ~ d o H e wrote, "In m) 1 lew, one can't make 1' c ~ Into t kg~rlature o r h puttlng J dog collar on ~ t .. . . It seems to me t h ~ the hds called t h ~ component s of the progr'lm an educat~onp[-ogrmi , ~ n dhas t~on t o the h e d t h servlces ,~ttached1' tohacco-rehted e d ~ i c ~ ~ compoIient program, lwt those two t x t s d o not, In m) xlen, c o n ~ e r tt h s he,dth scrIces p r o g r a n 11ito a r o b x c ~ - r e l a t e deducation progrci~il."22 The court ruled t h ~ the t Leg~slaturehad ~ l o l a t e dthe s p e c ~ f i c ~ ~111 t ~Po~nw p o s ~ t l oL)L) n t h ~ the t funding ~ l l o c ~ l t i ocould i ~ s be 'imended onh bv J. four-fifths vote of the Legislature and then only for purposes "consistent with its purposes." The court further ruled that the Proposition 99 ballot argumeiits assured voters that money allocated for tohacco education mid research mould he spent for these pulposes m d that the Leg~slaturecould not , m e n d the allocation of relenues untd Propos~tion99's "findmg of fact" ( ~ . e .that , tohacco 1s the nulnhel one pre\entable cause of d e x h m d d ~ s e'ise ,ind causes p a n and sufierlng) changed. All use of the contested funds n ~ l to s stop. At the hear~ng,Judge KTCirrenh ~ requested d that both sides ,id\ Ise hlm o n hou to t a ~ l o the r rel~efto be g r m t e d A N R and ALAIAC C should the\ prevail. The Attorney General argued t h ~ t if, n o other fuild source for the programs could be found, "a great many needy people mlth serlous nied~c~il problems \v111 find thernsehes without access to the h e d t h c'ire the\ requ~re."'>Xlternat~\ef u n d ~ n gwas a poss~bllltv,accordmg to the state, but loc,~trnga n alternate furidmg wurce would r e q u r e ~t least

ninety days. If alternate funding was not found, it would require the state an additional sixty to ninety days after this fact was established to implement the cutoff of the programs. Based on this arithmetic, the state argued that the programs should he allowed to finish the fiscal year." Lawyers for XNR and XLAIACS argued that the courts should order the state to cease and desist immediately from the illegal expenditures. They argued that the lawsuit had been brought promptly and that the state had been warned by its o1vn Legislative Counsel-twice in 1991 and once in T 992-that the diversions were likely illegal.24-'" Fred Woocher, XNR's lawyer, specifically argued that Responitents [the state] lvere on full notice \\,ell before AB 816 was enacted that the diversions from the Health Education and Research Accounts were illegal. and that Petitioners IANR] Lvere prepared to challenge the diversions in court. Ha\ ing elected to violate their legal dut!. nonetheless, Respondents simpl! cannot no\v be heard-much less in the name of eqri/t>'-to complnin that the!- must he permitted to continue their unla\vful activities in order to avoid "contusion" or "disruption" to the other programs that they have chosen to fund with the Health Education and Research Account monies. Any such confusion m d disruption is solely the result of Respondentq's [sic] o\vn \vrongdoing, m d they cannot be permitted to use that as a justification tor L-iolatingthe people's will under Proposition c)q.'- [emphasis in original]

The f ~ ct th x a l'tn suit had not been filed before 199.1, when the CHDP dire1 sion had begun In 1989 and the CPO diversion In 1991, the l a w ~ e r s a ~ g u e d ,should not dfect the cease and desist order because the health g ~ o u p s"did e\el\ thmg that the\ could d o to prevent the health educ,lt soon as tion divels~onsshort of 1itlgat1on."'- The groups filed s u ~ as "AB 8 r 6 iucre,~sedt h e dir erslons from the H e d t h Education Account and gutted the Reseach Account [and] petitioners sau that there u a s no lecourse short ot litigation."'The h e ~ l t hgroups also argued t h ~ the t state's claims of harm needed t o be bCxlmcedagamst the harm caused by underfundlng the health educ ~ t i o ncanpalgn. T h ~ bacsertion n a s bdsed on work done at the Unirels ~ t )of C,il~forn~a 'it S ~ i Francisco 1 by Stanton Glantz, n ho prepared an estirn'lte of the health impact of underfunding. One of the state's arguments was that i m m e d i ~ t eh a m would be experienced by those w h o relied on the state for he'ilth cale, nhile those serked h\ the Health Educatloll and Research Accounts would not experience i n ~ m e d l ~ harm. ~te Glantz dernonstlated that, e s p e c d l y m the case of heart disease, there ~ v a s~ m m e d i x eharm. Among ind~vidu'~lswho stop smoking, the c a dim a s c u l x s\ stem starts morking better by the next d ~ \the ; excess rlsk

The Laxvsa~ts

277

of a heart attack is halfway back to that of a nonsmoker in a year. Similarly, if a woman quits smoking even two-thirds of the way through her pregnancy, the chance that she will have a low-birthweight baby is substantially reduced. Based on the quit rates achieved by the Proposition gq programs before they wese cut under AB 816, Glantz figured that the short-term hospitalization costs of the additional cases of disease caused by funding the program at 12 percent instead of 20 percent was approximately $28 million in fiscal year 1994-1995. Moreover, this estimate did not include physician fees, subsequent hospitalizations, outpatient care, rehabilitation, disability costs, lost tax income, or the costs associated with passive smoking or fires. California government paid about one-third of this amount, or $9 r n i l l i ~ n . ~ " At a hearing on January 19, 199 j, Judge Warren granted the plaintiffs' request for an injunction against further illegal diversions in the 1994-199 j budget. The ruling was memorialized in a written order on January 23, 1995. The court ruled specifically that the $64 million in expenditures for medical services from the Health Education and Research Accounts authorized for 1994-199 j by AB 8 16 were illegal. The degree to which the state was allowed to spend money that was illegally appsopriated had to be established. Similar diversions that AB 816 authorized for 1995-1996 were also found illegal and enjoined. Judge Warren entered different judgments in the ANR and ALAIACS lawsuits. In the former case, the state was allowed to spend $83,000 in CPO funds; in the latter, $4.2 j million. The ANR ruling blocked all CHDP expenditures, and the XLAIACS ruling allowed $ 1 8 . ~million to be spent o n CHDP. Thus, the ANR judgment blocked spending of $128 million while the ALAIACS judgment blocked $10 j million. The judge gave ALA and XCS the opportunity to sign on to the ANR judgment, but they declined on the grounds that they sought only prospective relief, following through on their assurances to legislators who agreed to be plaintiffs in the suit. Further, the ALAIACS lawyer advised them that since ANR was asking for the full amount, they "would not really lose anything if there is a good strategic reason for asking for less" and the lesser judgment might have a better chance of not being stayed by the Court of Appeal.'" The governor appealed Warren's decision, and the California Medical Association (CMA) and Californians for Smokers' Rights filed friend of the court briefs supporting the state. On May 24, 199 j, the Tliisd District Court of Appeal denied the state's request to issue a stay of the lower court's ruling. A stay would have unfrozen the illegally diverted funds and allowed the governor to spend

278

The I.nwsuits

the money as authorized h!- AB 816 while the appeal ~ v a sin progress. The plaintiffs successfully argued that if Judge Warren's order was stayed, the contested funds would he lost forever. The governor tried to avoid complying with the ruling. In response to the injunction, DHS verbally instructed counties t o proceed with business as usual in terms of spending money on health services. The administration claimed it wanted to keep the programs alive while a new source of funds \vas found for C P O programs. In fact, the state xv~litedthree months ( ~ l n t iApril l r i , 1 9 9 5 ) before it mailed notices to the local health departments formally notifying them that they could not rely on AB 8 16 appropriations t o fund C P O services."' The state returned t o court late in 199 j to request that it be allowed t o spend an extra $3.1 million on C P O services in 1994-1995. This move was in response to the portion of the ANK judgment that restricted the state to spending $83,000 o n C P O but allowed the state to ask for more. On January 30, 1996, XNR protested the state's application. Specifically, X N R pointed out that the state had not advised the counties in a timely rnanner t o stop using funds for illegal purposes and had not used 1 ~ 1 1 over funds from previous years to fund C P O services. The state, in fact, had used "new" 8 1 6 monies in ~ 9 9 4 - ~ 9 9 -hefore j using rollover funds from the previous years. llsing the new money was prohibited by the court while using the rollover funds was not. XNR further pointed out that the state had sufficient funds to reimburse the counties for illegally spent monies. The court denied the state's request to use $3.1 million from AB 8 I 6 monies to fund CPO services. The governor's XIay revision of his proposed 1995-1996 budget included a request to use $3 6.- million in General Fund monies to replace the funds lost because of the lawsuits, although he made it clear he \vas not giving up on ne\v attempts at diversion of Proposition 99 Health Education and Research Account funds during the 1995-1996 fiscal year." While Wilson sought to keep the medical ser\.ices programs funded from the General Fund, he did not seek permission to spend the contested funds for anti-tobacco education and research. H e was happy to let the money sit in the bank pending appeal. hloney in the bank, after all, would not hurt the tobacco industry. T H E LAWSUIT'S A F T E R M A T H : SR 493 IK 1995 Judge Warren iould only block rnonel from being spent ~llegall).H e could not o d e s money t o be spent as the voters specified; onl! the Leg-

The L m ~ s u ~ t s

279

~slatiu-ecould appropriate the h n d s . Thus, the wctory In Judge Warren's c o ~ i r tfor ANR and AI XIACS \vas only the beginnmg of the battles t o be fought in 1995 over the dlegall~d ~ v e r t e dfunds. The health organ17ations had t o g o to the Legislature for a new bill t o restore full funding. They did not, however, publicize their victory in the lawsuit o r otherwise use it t o bring public pressure t o bear o n the governor o r the Legislature. The court victory was viewed as a new piece of ammunition in the m i d e r game, not as a W ~ J t.o Involve the p u b l ~ ca n d get the media t o f r x n e the Issue as "following the wll of the loters." Cenator D u n e V a t s o n (D-Los Angeles), a l o n g t m e supporter ot Proposltlon 99, proposed SB 949, w h ~ c hwould have a p p r o p r ~ a t e dthe f r o ~ e n Proposition 99 funds for legitimate anti-tobacco health education and res e a ~ c hin accordance wlth P r o p o s ~ t ~ oqqn a n d w ~ t hthe court's judgment. K'h~leSB 949 was passed b) Watson's Health and Hurnan Serv~cesC o n mlttee, ~t \vac stopped 111 the Senate A p p r o p s ~ ~ i t ~ oCornnuttee ns bx the same forces that had supported the use of funds trom the Health Educatron m d Research Accounts for medical scrv~ces:the C M A , CAHHS, and the Western Center for Law and P o \ e r t ~ . " M e a n w h ~ l ethe , tobacco ~ n d u s t r )continued t o escalate ~ t csa m p a ~ g nc o n t r ~ b u t ~ o nt os members o t the Legislature. In 199 j-1996 the tobacco industry spent $10,440 per member, tmlce ~ t U.S. s Congress c o n t r ~b u t ~ o n sof $5,044 per membel. " Rather than a c c o n m ~ o d a t m gthe court rulmgs, Go\ernor W ~ l s o n worked t o get around them. H e wrote the Leg~slatureurging ~t t o enact new legislat~onthat c o n t ~ n u e dt o d ~ ~ ePrr to p o s ~ t ~ o99 n f ~ i n d sInto med~ c a ser\ l Ices hut w h ~ c hwould pass legal muster: I hope that you Jvill agree with me that neither the executive nor legislature [sic-]branches of state government can abide the court's decision to suhstitutc its will for that of the elected representatives of the people of California with regard to the allocation of critical state resources. Indeed, the State has met the wry requirements of the plqosition to make allocation decisions consistent \vith the Proposition's purpoxs and done so with the requ~red% vote of both houses of the Legislature. I therefore call upon you to establish an appropriate structure for immediate consideration of legislative alternatives to resolve this egregious action by the court so that we may minimize the disruption and loss ot medical care t o uninsured and indigent persons in California."

W'ilson ivas offended that the court had imposed its will o n the state's elected representat~\es;he d ~ dnot object t o elected representatIves imposing thelr w ~ l lo n the expressl) stated mandate of the people. O n June 27 the volunt,m health agencles wrote an angr) response t o the got ernor:

K7e believe that the intent and effect of your proposal, as stated in your let-

ter, is to circumvent the judicial system, subvert the Constitution, and impose your mill over that of the voter. VC7e are unified in our opposition to this action and will pursue every avenue to ensure that Proposition 99 is upheld. . . . The Superior Court made two points very clear. First, funds in the Proposition 99 Health Education and Research Accounts cannot be used to fund medical care. Second, any attempt to divert the Health Education and Research Accounts into medical care will be closely scr~itinized.'~ They did not release this letter t o the press o r make any effort t o marshal public support. As the governor requested, the Legislature passed SB 473, \vhich contained a funding plan that was identical t o AB 816. SB 493, originally sponsored by Senator Cathie Wright (R-Simi Valley), had proposed a minor change in the portion of the health a n d safety code dealing with radiologic technologies. In this form, it had passed through the cornn ~ i t t e estructure and the Senate and was awaiting final action on the Assembly floor. There Wright was replaced by minority leader Ken M a d d y (R-Fresno) as the bill's sponsor, a n d the old bill was amended in its entirety t o appropriate Proposition 9 9 funds. The section o n radiologic technologies was dropped. By using a n existing bill in this manner, there would be n o hearings o n the issue and virtually n o deliberation. It was the ultimate insider deal. In SB 493 the Legislature sought t o avoid the legal problems of AB 8 I 6 through tbvo actions. First, it presented a long series of "findings" that were designed t o convince the courts that the tobacco use situation in California had changed substantially enough t o justify major cuts in the anti-tobacco education programs. For example, the Legislature included the "finding" that "the decline in overall tobacco use since 1988, the resulting decline in cigarette a n d tobacco t a x revenues and the decline in the number of Californians with health insurance, such that 6.5 million people are uninsured, make it critically important t o reallocate revenue for one year t o meet urgent health care needs in a manner consistent with the purposes of the act." '' Second, rather than simply using Health Education and Research money t o fund medical services, SB 4 9 3 amended the percentage allocations of tobacco tax revenues in Proposition 7 9 t o put less money into the Health Education and Research Accounts and put more directly into the Physician Services Account, where it was then appropriated t o the same medical service programs that the court had ruled illegal in the AB 8 1 h

The Lawsuits

281

suit. SB 493 put only 10percent of the tobacco tax revenues in the Health Education Account (instead of the 20 percent required by Proposition 99) and only 1 percent in the Research Account (instead of the j percent required). The Physician Services Account was given 22. j percent of the revenues (instead of the 10 percent specified by the initiative); the Unallocated Account n7as given 26. j percent (instead of r j percent). This action was taken to deliberately amend the initiative rather than rely on the appropriations process. By this time every county in California had formed a tobacco control coalition, which had created a network of people w h o were well informed about tobacco control and who could have been a substantial resource for the reauthorization effort. The lobbyists did not tap this resource. Cynthia Hallctt, who at the time was working for the Los Angeles LLX, later described how advocates in the field finally began organizing their own effort: "Where I remember the most anlount of activity coming up \vas SB 493, and that was May of '9 j. That n7as a long \va!, down the pike. And what happened was it got t o the most dire stage and then finally there was much more comn~unication.But what was interesting lvas that activities t o combat SB 493 did not necessarily originate from anybody out of Sacramento. . . . I mean, that was the first major effort that I can remember people really getting behind." '"The frustration in the field was clearly growing, but it was not organized and focused enough to influence the events of 199 j. O n July 10 the Assernbly passed SB 493 on a 67-4 vote and returned it to the Senate, where it was approved, as amended, on a 32-6 vote just five later. The Governor signed SB 493 into law on July 27, a mere seventeen days after it was "introduced." Once again, the established power structure within the Legislature and administration, in alliance with powerful tobacco and medical interests, pushed through a n appropriation designed t o reduce the tobacco control program. Proposition 99's advocates had no chance in this game o f political hardball. Carolyn Martin observed that SB 493 roomed through the legislature faster than an! bill that I've ever seen. I think it \vas '1 done deal in four da!s. The only thing me did t o even try and slow down this missile lvas to require a Senate hearing and by then the Senate was 111 the last d a y of the budget session when everyone is so frazzled and tired they can't think anyway. Lots of people in the Xsscmbly told us they didn't even know what they were voting o n when they voted on q q 3 . One of our mist,lkes was we did not have a strong Xssernhly leader who would just scream

, ~ n dstomp m d carry on t o try and expose any chicanery o n d~vertingthe money a g i n . We needed that and \ve didn't have it. And, remcmher, W'illie Bro\vn \vas stdl there.'-

THE SB 493 LLIK7SUITS A N R and the \oluntaries-tlus t m e ~ n c l u d m gXHA-sued a g a n , separ'iteh, seekmg temporas\ i - e s t r ~ ~ norders ~ n g agamst the ~mpleme~ltation t matter be assigned to Judge Vlrxrcn, n h o of SB 49;. The\ asked t h ~ the had pres~dedme1 the earher case, on the g1 ounds that he alieadx knew the legal Issues. The state contested the a p p l ~ c a t ~ oton assign the matter to Warren, and the case \\as ass~gnedto J ~ l d g eJ;inles T. Ford, n h o had been the judge In XLL4's 1992 l C ~ \ \ s ~tol ~restore t the m e d ~ acampaign. The health g ~ o u p sq u e d that SB 493 \\as not "cons~stentw ~ t hthe purposes" of P r o p o s ~ t ~ o99 n o n its face n ~ t l i o presenting ~t an1 e\idence t h x the cuts \\ere h u l t ~ n gthe program, as the\ h ~ done d In the =\B816 case. E\en so, the l ~ e ~ ~groups l t h n o n ,1g,iln. Judge Ford ~ s s u e d1' tempor a n I-estr,Ilnmg order o n August I , r 9 9 j, to stop the contested ekpend ~ t ~ l and ~ e s~ s s u e da p l e l ~ m i n a rlnjunctlon ~ against SB 49; o n September I , 1 9 9 j. As 111th the l u l ~ n g so n AB 816, none of the l ~ t ~ g ~ surrounding t~on SR 49 '5 compelled s p e n d i n g t h e $ h 4 m i l l ~ o n111 contested funds f~o m the Health Educ'~tionand Research Accounts, 'ind the go\ ernor again s ~ m p l ~ let the nlone\ s ~ In t the b m k . Ke~eitheless,the h e ~ l t hgroups' iictoir represented a shot 111 the arm for the people n o i k i n g 111 the field. Xccoi-dmg to C l 1 1 t h ~Hallett, The l a n s u ~ t s\yere re'llly when . . . the I'lrger sort of California constit~~encies started mo\.ing. . . the Prop 99 constitnenc!. . . . People finall? got the \vord out, "This is \vhat's happening, and this is n h a t the!.'re doing. Are xve going t o sit behind and let this happen?" Ancl ,I lot of that message came from ANR.. . . We were able to clearly communicate with our coalition n~enihers. And we were able to help. K e were able to sa!,. "They're collecting affidavits or letters of support from previous clients. Can you d o it?" And sure enough, people were popping them out. And it was great because then thc community agencies felt a part ~t the process. And that's \yliat it takes hecause they do so ni~1c11ot this \ v ~ r k . ~ "

The l a ~ c s u ~also t s demonstrated how f x a\\ab trom each other the or~glnalP r o p o s ~ t ~ o99 n coa11t1on members had n x n e d , w ~ t hthe volun~ J I - T . health 'igencles on one s ~ d m e d the tned~cals e n Ice pro\ ~ d e r son the other. As noted 111 the ALX newsletter. "The benefic~li-iesof the dix erted

tobacco monies, the California Medical Association, California Association of Hospitals and Health Services, medical clinics, the Western Cellter on Law and Povert); and the tobacco companies ~vieldedenough political influence to achieve the diversion and are expected to lend legal support t o the State's Attorney General in order to keep the Prop money." ' T h e health groups finally accepted that the CMX, CAHHS, and V17estemCenter for Law and Poverty were not e\.en potential allies. They were linked with the tobacco companies. CONCLUSION The lawsuits did several ~isefulthings for the Proposition 99 programs. They increased the visibility of the Proposition 99 issue, fraiuiq, ~t not as sick babies versus prevention but as voter-approved initiatives versus illegal legislative deals. For the constit~ienc!in the field, those w h o worked on the programs on a daily basis, the Ia\vsuits showed a greater level of commitment to protecting those programs than they had seen before in Sacramento. The lawsuits showed that the health groups were willing t o fight for the Proposition 99 programs and to fight for them outside the n-orld of Capitol insider politics. The litigation also engaged XNR in the fight over Proposition 99. Although ANR was not working \vith the voluntary health agencies, ANR's experience in grassroots political fights had the potential to be useful in protecting Proposition 99. In i 996 new legislation would again be needed to authorize the Proposition 99 programs. Kegardless of the legality or illegality of AB 816 and SB 493, both were facing a sunset deadline on June 30, 1996. The question before tobacco coiitrol advocates was how they c o ~ i l dexploit both their legal victories and their organizational strengths in a way that would make full fuilding of the anti-tobacco education and research programs a reality. '

Doing It Differently

By the fall o i T Y C , ~ .because of the failure of the Legislature t o appropriw t h the la\\suits, subate the P i - o p o s ~ t ~ oC,C)n rehenues 111 ,~cco~-dance stanti,~l mounts of P r o p o s ~ t ~ o9n9 Inone\ h ~ not d been spent for anything. The courts stopped the gokesnol and Leg~slxurefrom speild~ng the inone) tor i n e d ~ c ~slel n Ices, and the goiernor m d the Leg~slaturerefused t o 5pend the m o n e ~for ,int~-tob,~cco educ,~tionand research. The Health k d u c a t ~ o nL k c o u n t xvas prolected to c o n t a ~ n$ r 9 L i x ~ l l ~ oby n June 1996, and the Resexch Account $ 8 2 r n ~ l l ~ o X n . total of $r74 m 11on from ~ e s e ~ ~ rm c hd, these cuts mere ha\ ing ,111 etfect. The pl-e\,~lence of \011th s1no1\1ngh ~ ~dn c r e ' ~ mb\l r o pelcent between ~ 9 9 ,4111d 1 9 9 5 (from L).T petcent to 10.9 percent), and ~ d u l prexalence t Lvas n o longer dec11ning.l In tact, d u l t prelalence appe,lred to be incre~lslrigfor the first time since the state began collect~ngst,~tlsticsin 1974. T h ~ n k tso the governor, the L e g ~ s l ~ ~ t uand r e , the med~c,illoblx, the tobacco ~ndustr! was reierslng the d,im,lge that Propos~tion9 9 h ~ done d to it. As the) prepared tor the 1996 reauthorization fight, tobacco control a d ~ . o c ~ l t had e s t n o court d e c ~ s ~ o no ns their side. But I' f,lxorahlc court dec~slonhad been ot little help to them in I 997 n h e n the Legislature passed 5B 4 9 3. The go\el-nol- ~ n Legisl,~t~ire d seemed more angered than chast~sectby t h a r legal defeats. The challenge to tobacco control ad\ ocates w a s how to change the outcome ot the author17at1on fight.

T H E NEED FOR A CHANGE The lobbyists from the three voluntary health agencies-Anierican Cancer Society (XCS), Anlerican Lung Association (ALA), and American Heart Association (AHAj-organized a series of fall meetings led by XHA to plan a strategy for the Proposition q q reautliorization fight. They needed focus, energy, and resources. As Paul Knepprath, \vho had joined Tony Najera as a lobbyist for the state ALA in T q c ) j , explained, "What we needed the next go around was not a pure sort of traditional legislative lobbying campaign but rather a campaign that included other elements that brought the p~iblicpressure from the outside more. . . . There \vas a consensus that we needed to do things differently for reauthorization than what we had done in the past. There was consensus on bringing in new players and new partners, which I'm not sure which ever came to fruition." Beyond acknowledging that something had to be done differently, there was little activity. This lack of action on the part of the vol~mtarieswas confirmed for the local lead agencies (LLAs) in a monthly technical assistance telephone call hosted by the American Nonsmokers' Rights Foundation (ANKF), the educational arm of Americans for Nonsmokers' Rights (ANR).The service was part of the technical assistance provided by ANRF under contract to the Tobacco Control Section (TCS).ANRF director Julin Carol used this forum to let the ILXs know what was happening on reauthorization. Carol attempted to use an early fall teleconference to hring the LLAs together \vith the XCS:

'

.INK'S plan was to have nothing whatsoever more to do with any statewide efforts, we mere just doing our work. But 1 still wanted to look out for the constituency we serve, so I m\-ited the Cancer Soc~etyto come on the line and g ~ v e"11 update on the p h n s for reauthorization for l h p . 9 9 . . . . I w a s trying to get these people to look to the Cancer Society tor leadership and not to us 'lnd that thew people were very mistrustful and that they needed to know that something was going on and they needed to be included. T h q , needed to he a part; t/~e]"?'ilt i m f of'he~ngleft o f d . TL~ey'resl4spicious of de~ilsbc3itzg cut in the iiz1.k a71ii of people not telling tl~ernthings. So really there needed to he a frank conversation with them about what the plans \Yere and \vllat they could or couldn't do, what the communities could or c o ~ ~ l d ndo. ' t So . . . I asked Theresa [Renken, the XCS lobbyist] to give a n update and she s a d , "Well you kno\v, we're going to be forming a coalition and we're going to be talking about hlah and we're going to have a big meeting in the fall and we're going to do this and that and by No\eniber \ve'll do the other , ~ n dthe LegisL~tureis gone and they'll come hack a n d hlah a n d blah m d hlali."

286

Doing It Differently

And I said to her, "\YThat's our plan in the n~eantime,right now?" And I meant for influencing the budget language before the budget comes out, but I didn't s ~ that. y "V['liat's our plan now?" And she said in a rery snotty tone, this is a teleconference with over one hundred people on it, "Well, Julia, ~t you understood the legislative process you \vould know that the Legislature is about t o be out of session. So there is nothing that can he done until they return anyma!.." . . . So I said to her, "Theresa, it sounds t o me like the campaign is going to be run much the same way 3s it has been the past, is that correct?" And she said, she paused and said, "\Yell, yes." And I said, "I see. . . . \veil then, i f ' y m a w going t o d o things the s a n e u q . chat makes you t l ~ i n kj'ou ai.e not g ~ ) i n g t o gct thc smnc ~ e s u l t s "i ' [emphasis added]

The Sacr,imento lobhy~stsw h o hcid negotiated the ~mplementingleglslcitlon for Propos~tlon9 9 over the years still d ~ not d appreciate the need to actikely engage the grassroots o r the power of doing so. Tony Najera, who, with John Miller, had headed the "inside" game on behalf of the health organizations since I 98 9 and the passage of AB 7 j, revealed why the inside game was played the way it was: "Paul [Knepprath] would from time to time criticize me and rightfully so because he wanted me to include other parties. And I would always say, 'That's nice t o be inclusive and to bring people along. However, there are times where you have personal r e l a t i o ~ i s h i ~and s . . . they don't want other people. They want to be able t o confide, quietly tell you what they think.'"' Najera was sensitive to his role in the inside game: "I've been accused of giving av7aythe store by people that don't understand this game. I consider that 3 false accusation which is very unfounded."' Steve Scott of the Califomi~~]olzinal obser~.edthat the behavior of the voluntary health agencies' lobbyists was typical of the tendency o f the lobbyists in Sacramento to live in their o\vn world: As somebody I\ 110 covers the Capitol, I can't bc too critical of the way they [the voluntary health q e n c y lobbyists] approach the Legislature. . . . You tend t o become a product of the system in \vhich you operate and over time I'm sure that thcse lohlyists are n o different from any other lohbyists. Over t m e you become inculi,~tedinto the culture and you start t o think in incremental terms rather than in bolder terms. But that's why you have grassroots. . . . Ultimately the lobbyists x e employees. And if the people w h o employ them don't look beyond ~ v h they ~ t are telling them, then they are not doing their members any good service either. S o I don't think that the grassroots arms of the organi~ationscan be exempted from a share of responsibility for allowing the Prop. q q situation t o atrophy the way it did. Because the repositor! for 311 wisdom isn't the lobb! ist in Sacramento.'

Doing It D~fferently

287

Thanks to Proposition 99, the TCS and ANR leadership, and the LLX d~rectors,the local tobacco control ~ o ~ ~ l i t iwere o n s gettmg stronger m d more organ~zed.The) m u l d not understmd whv the lobhv~stsIn Sacramento n e r e not rcachmg out t o tap t h ~ ponel. s At the same tlme, things were changmg at the AHA III 1' WJV thdt woi~ld lead t o a much stronger appreciation of the grassroots. Mar) Xdmls h ~ c l l e ~ e n t hreplaced D I IGser ~ as AHA's l o b b ) ~ While . Adanis h ~ been d ~ n \ o l \ e dIn the earl\ P r o p o s ~ t ~ o99 n fights '1s the ACS l o b h r ~ s t(,is h l m Dunn), she had I~vedIII Europe for se\er,ll y e x s and h ~ only d returned to Sacramento in November 1994. She was surprised at how far the Proposition 99 allocations had deviated from the terms of the initiative. In crafting a legislative strategy for ~ 9 9 6 Xdams , felt that the voluntary health agencies needed to open up the process and involve new people, particularly those in the field who had been fostered by Proposition 99's community-based activity.' She also recognized the need for the tobacco control advocates t o be more nonpartisan and bipartisan: I wanted t o have both Democratic and Republican representatives. Because 111 the p ~ s t we'd , just ,~l\vaysfocused o n the Democrats and I fclt like that wasn't going to get us \vhere \VC needed to go. . . . I started comnlunicating to my organization after meeting with this group and I hawked the same three points all the may through with this group that I had drawn together and then \vith my own organization: that lve needed to have a n intensive grassroots eftort, . . . that Lve had t o have intensive use of the media t o get the public t o focus o n the issue, and that we needed t o h a \ c a contract lohhyist \vith Repuhlic,ln ties \vho ~ v o u l dbe able t o \vork the icsue iol- is in a successful way. And then I shored that u p with just my strong feeling that this was a11 going t o take place through the budget, that it \vas not going t o go through the normal Iegislative track.'

H a b ~ n gbeen ~ b s e n tfrom the battles In S x r m l e n t o over the p ~ \ few t L e x s , Xdams h ~ ,m d easler tune recogmzlng str'ltegic errors t h ~ the t 601u n t a n h e d t h agenc~eshad m d e : "The strategres t h ~ had t been ~iseclIn the p ~ s .t . . h ~ been d d~srnalfa~lures.When I left, there w ~ as ton of mane) coimng. When I came back I saw the whole thmg 111 1 ' red1 mess. I kneu that we had to d r m together m m y more facets, many more approaches than bad been used m the past." ' A d a m wanted 1' more ~ g gres511e campaign to defend Propos~tionc)c) that reached well be?ond the Caprtol b u ~ l d ~ nand g w ~ determmed s t o get XNR and rts past presrdcnt, Stanton Glantz, on b o x d . But m\olving Glantz 'ind ANR was not ~ n s ;ti matter of 'ldd~ngt h e ~ r n m ~ e sto ,I c o a l ~ t ~ oletterhead n and proceedmg with busmess as usual.

288

Dolng It Differently

N e ~ t h e rGlantz nor the XNK l e ~ d e r s h ~had p much confidence In pursuing the kind of msider game t h ~ht ~ failed d for the last sei era1 !e x s . The) hvere c o m m ~ t t e dt o 'lction n i t h ,I strong grassroots component hased o n their experience doing battle over Propositions j, 10,and P and passing hundreds of local o r c i ~ n ~ n c eThe! s. ~ l s recognized o the central role t h ~ t the C M A and other rnedlc'll Interests h ~ pl'l~ed d in l e g ~ t i m i z ~ nthe g dilersion of m o n e ~O L I ~of the Health Ecluc,~tionm d R e s e x c h Accounts; the\ i ~ e \ \ e di-~eutr,~lizing the CAIA as the c r u c d first step t o restoring Proposltlon 9 9 . But thev doubted t h ~ the t \oluntar! health agencies n o u l d h a ~ the e nerxe t o confront the ChIX, much less the g o ~ e r n o ror the Legislature. XKK had b ~ u l t~ t rse p u t ~ t i o n'1s a gr'lssroots olganiz,mon b~ bemg a confront,~t~onal outsider. Elen ~t it could be persu'lded t o chan, its focus from l o c ~ 0l 1 - d ~ n ~ nfights, ie ~ t preferred s s t r a t e g , t o ,I state-le~el one, ~twould certalnh not comproinlse ~ t ss t le ~ In the process. A K R had ~ t os n n vislon of what \\as needed 111 the P r o p o s i t ~ o n9 9 fight. According t o A N R co-director Robln H o b a r t , O n e thing that n e realized was that the only way you were going t o see real re,~nthorizationot Prop. 99 a t the full le~el-and this was based o n our experience n i t h [Propositionl I 88 in some n-a\-S-was rhst !-ou're going to have t o I . L I I ~it like a n election campaign, not like just 31s)- old hill. It had to reclll\be a c'lmpaign n i t h all the attend,~nrgrassroots strategy and rneJi,~straregjand iniide-the-Capitd strategy. . . . The other thing that \ve klie\v hased o n how the governor l u d responded and the l.eg~sl,~ture 'esponded t o our l a w suits-me werc succe\\ful in court hut hal-ing ahsolutel!effect lvhatsoever x ~ i t hregards to n h a t the Legislature \vas prepared t o do-was that it \vas going to have to be 3 r e d gloves-off campaign. People ~ v e r egoing to have t o name names. And the California Lledical X s s c c ~ a t i o n~ i7 xgoing t o h a \ e to he forced t o get out of the n.,1y."

AYR could en\ ~ s i o n,111 e t f e c t ~e ~s t r x e g l , hut it had n o ~ n t e n t i o nof act u , ~ l lgetting ~ in\ o l ed. ~ H o b a r t contmued, "We d ~ d n ' thellet e that ~tever Itas gomg t o h'lppen and so t o '1 certaln extent, n e declded, 'It's reall! awful, ~ t ' sreall\ a shame, but XNR has 'lbsolutel) n o abdity t o d o ,111) t h ~ n gbout ,111! o f t h ~ sb\ ourselxes a n d we're done.' We gave at the office, the l a u slut \\'IS the last thmg that n e made a conlimtment t o d o t o trv t o s a i e Prop. 99 m d after that, u e mere c i o i ~ e . " ~ Glantz c ~ l S~J Mo the need f o a~ mol e confrontational strateg) but was more milling t o get m i o h e d . In ,I 1 9 9 6 interview he sald, And \\-hat happened last year [in T c)c) 5 l was I saw the whole program just going down the drain. I think the CAIA and the Tobacco Institute \yere coming

in for the kill. . . . The program lvas in a complete shambles, hec,lusc l o c ~ l l r ~ dprograms had hasically been dismantled, because the medi,~campaign \vas 9 mess. And tlie tobacco conipanies and the Lirdical Association had t succeeded in turning this into 3 fight about money, a n d ,I fight , l h o ~ i money is not nc\vs in Sacramento. And Tony [Kajera]and John Ihlillcrl ,111d the others up there \verc s t ~ l pursuing l the same old insider str'itegies \vhcrc they'd been s c r r n d every rime. Just all the te'i leave5 were looking bad. . . . I \at back m d I said, "Kow, . . . a m I going t o sit here , ~ n dchronicle the demise ot this progr.,lm while kvatching it and have a nice clean paper ~ v h e r eI've \vritten about ho\v the thing went down the drain?" . . . I just decided I could not stand t o sir and watch this thing go dmvn the drain hecause 1 t h o ~ ~ g ith twas just too impartc1nt.-

Aleann~hile,as XHA was trying to recruit ANK a n d Glantz, ACS \\.as engaged in its own discussion a b o ~ i reauthorization. t According to Don Beerline, a past chair of the ACS California Division, ACS also recognized the need to d o something different: \Y7hat the A(:S decided early last tall [of I 99 j l \vas that m:e had been unsuccessful. The advocacy in those previous I-eauthorization campaigns licid primarily been carried o ~ by~ our t professional lohh! 1 s t ~The . lohl~yistsin those previous campaigns have complained somewhat that they didn't ferl like they really had the support t o d o what they needed t o do. And given the past histor! of that failure, the XCS said, "We need t o d o something different this time." The debate \vent on \vithin the ACS,and it culmin,lted when our board of directors in November of 1995 c ~ ~ i i n i i t t eSTLO,OOO d fur this c ~ ~ m p a i g n plus obligated one individual full time for tlie first six months of 1996, and this ii not a clerical person. T h ~ lsi r a \ a middle man,lgcr. So that's a significant commitment of personnel and funds cornpared t o the last time, the assumption being \vith that sort of commitment then \ve ~ v o u l dbecome, for the first time, the lead agency in this fight. And in the past, it has been other organi7,ltions have hren considered the lead agency. And that is exactly Lvhat happened. . . . Lung Associ,ltion definitely and their representatives were definitely not happy xvhen ACS took the role of the lead agency in this , ~ n ddecided that \ye needed t o have a different strategy."

Although e\er\ one had the s a n e goal-full f u n d ~ n gof the Health Educ m o n and Research Accounts-there were no i n d ~ c a t ~ o t~ hl s~ their t p l m s t o a c h ~ ee those ~ g o d s meshed.

T H E DECEMBEK h l E E T I N G Adams scheduled a December 1 3 , 199 j, meeting at XHX In Sacramento In the hope t h ~ ~t t \\ould get the kcv pl'lyx-s together t o d~scussreautho-

r ~ ~ a t ~ but o n ,she had wnle d~fficult~i p e ~ s u a d ~ nAgN R and Glantz to come. Bel~eklngthat ~t n a s m p o s c ~ b l efor a ~ o l u n t a r xhealth agencx to take the kmd of strong ~ c t i ( m necessarl t o rescue Proposit~on9 9 , Glantz told A d x m t h ~ he t n o u l d 0111) be \X ~llingt o '~ttend a rneetlng 'lfter the XHX " d ~ dsometh~ngt eal." XHX had ~ t csh m c e t o d o so when Glantz o t m m e d a cop) of n t h ~ r n second anti-smok~ng ad\ert~sement, "Insurance," produced h\ DHS. After makmg the p o ~ n that t tobacco companies owned Insulance compames that ga\e nonsnioker d m o u n t s , the a d ~ e r t ~ s e m e ended nt n ~ t the h questlon "What d o the tobacco ~ L I T Sknom that thex are not tell~ngus?" I\ as slttlng o n the ad\ert~sement.G l m t z suggested The adrnin~str~mon that XHX hold a press ~ o n f e l e n c et o demand that the gokernoi put the ad~ertlsementon the m . AHX d ~ so, d together w ~ t hALX m d , at the last mlnute, XCS. The e\ ent got m e d ~ ac m er'ige, ,ind Glantz and ANR agreed to attend the December nieetmg. Aciams's meeting brought together lohb\ ists from the three ~ . o l u n t , ~ r ~ ,~genc~es--Xdm~s horn XHX, Knepprath and K'ijera irom XLA, and Renken from ,-\CS-AS vell as John hldler from Sen,~torD ~ a n \X7,~tson's e office, C a r o h n hiartin, J ~ o l u n t e e rw ~ t hALX and p ~ s ct h a ~ of r the Tob ~ c c oEducat~on01ers~ghtCornnuttee (TEOC),C ~ r o and l Hohart from XNR, and GL~nts.The rnornlng s e w o n featured a br~efingh\ the TCS stafi o n the substmce of the plogranz; TCS left before the afternoon str'lteg\ sess~on. Durmg the afternoon session, Xdmzs announced that AHX h'id c o n t ~ o n $2 5,000 of \v111ch \iould initted $ jo,ooo for the r e a ~ ~ t h o r i z ~ l effort, go t o ANR for A grasstoots camp,llgn and the rest to d o other thmgs, such as h i r q J Republican l o b l x ~ s t .XKR comm~tted$ ~ j , o o oof ~ t s o\cn, ALA comm~tted51o,ooo, ~ n G d l m t z \I rote 1' personal check for $1,000-creatmg 1' mar chest of $86,000. Kenken d ~ not d mention the f ~ c that t AC\ h d ,111eadx cornm~ttedS l r o , o o o to the Propos~tionqc) effort. The meeting ended 11~ t hthe he,ilth groups postur~ng,not n ~ t h ,In action plan. G l ~ n t 7 ,Carol, and Hobart, \I ho felt that the pledged inone) \iould be enough to mount 1' substant~,~l campaign, left the meeting demoral~zed. The meetlng n as 1' naterslied. R;lther t h m resultmg In J larger, more d ~erse r n o r k ~ n ggroup, n 111c11 had been XHX's goal, the rneetlng e\entualll resulted In a d ~ ided r c o a l ~ t ~ oand n t\io d~ffetentreauthor~zat~on c~lrnpagns. N,~jeta later descr~hedh ~ reaction s to the meeting:

K t h ~ been d planning and planning since Octoher and we h a d one thing in mind, that was a statewide coalition-united wc stand together. But \ve go to this meeting in Decernher and that \v35 the telling . . . thing for me, t h ~ t h1.11-y m,~spla),ing both sides, hecause XNR and Stan had not been \vorking \vith us necesarily at the October meetings. And consequently when we got to the meeting in December, it \':I\ very clear that the Heart Xsociation was not necessarily interested o r concerned ahout working together with the Coa11tmn. And they frankly were attempting to tell us that this Lvasn't going to work. It w a s for me the telling time when it bec,imc clear that they didn't Lvant Cancer ,lnd they were afraid that hy contributing the ~noneyCancer \vo~ild u k e the leadership in this thing. And it wasn't going to work because Cmces , ~ n dthe governor were friends.' According t o Knepprath, A N K a n d Glant7 were a s s u m ~ n gt h ~ ,in? t ACS strategy w o u l d represent "the old school, t h e old w a y of d o i n g things, Sacramento based, lobbying, a n inside play of the game." Knepprath w e n t o n t o say, "Stan a n d A N R \$,ere advocating 'we're n o t d o i n g t h a t this time. We're d o i n g something different this time,' which is their right a n d prerogative. . . . T h e y were definitely thinking fast track, a n d Stan by this time h a d been pitching t o all of us, 'Let's utilize t h e 1PropositionI 188 f o r m a t in w h i c h it wasn't centralized; y o u didn't really have a centralized coalition. Everybody did their o\vn thing a n d w e w o r k e d together a n d , gee, ~ v a s n ' t h a t great? So let's do t h a t again.'"' Knepprath w a s seeking busically t h e s a m e type of centralized coalition t h a t h a d operated in t h e past, except w i t h XCS in charge. A d C m sremembered a lot ot t e n s o n In t h e r o o m ~t t h e Decernher meetmg: " T h e r e s ~w e n t o u t In t h e hall a n d 1%as t a l l < ~ n tgo somehodv, she h,id her l ~ t t l enose o u t of ] a n t a n d c e r t a i n l ~ d ~ d n ' tsak that t h e \ h a d a n \ nione?. . . . But I t h ~ n kthat the) h a d 'ilread) gotteti aome m o n e t p u t together as ell. 6 u t ~t lvas clear t h a t Ton? w a s 'ilread) startlng t o feel s o m e n h a t threatened. T h e fact t h a t I h a d been the o n e t h ~ ct o n \ e n e d this lneetmg w ~ t hT C S a n d n ~ t ht h e others, t h a t S t m a n d Julia ivere al could hci\e been 1' -' there . . ." ' F o r Ad,lms, t h e p h ~ l o s o p h ~ cd~fferences cornmodated ~f only t h e strong p e r s o n ~ l ~ t i he as d n o t gotten In t h e %a!. T h ~ s le\v underest~rn'lted t h e d e p t h of t h e p h ~ l o s o p h ~ dc ~~sla g r e e r n e n t s t h a t existed o\,er t h e a p p r o a c h t h e campaign should take. X d a m s \ w s unri\vare of h o w mucl1 m o n e y ACS h a d committed t o the campaign, a n d the distrust she, A N R , a n d Glantz felt a b o u t XCS in a leadership role was aggravated hy Renken's failure t o mention it w h e n all t h e o t h e r o r ganizations were anteing u p their contributions. If the o t h e r organizations h a d negative reactions t o t h e ANR presence,

it was echoed b? XNR's response. XNR h ~ not d w m t e d to be i n ~ o l v e d In the P r o p o s ~ t ~ o99 n r e a u t h o r ~ z a t ~ ocampaign n and had not wanted t o go t o the AHX meeting. Xdams convinced them to come. Carol s a d about the meeting, K'e didn't want to be invol\ed in a big carnpalgn to save Prop 99. However, one of XNR's goals is to separate tobacco money from politicians m d to high11ght the nefarious connection between the tobacco industr! and pol~ticians and their interference in public policy. To that end, the thought of beating up Pete Wilson a little every now and then over his connection to Philip Xlorris in fact appealed to me greatly. When Pete Wilson appointed Craig Fuller, the former senior vice president of Philip Llorris, as his campaign manager [for Wilson's abortive presidential campaign in rc)q j], we had run a radio spot asking if Pete Wilson was running for president or just wanted to he the nest Xlarlboro L1m. . . . And I thought we'd follow it up with a Hall of Shame ad, which 1 had in draft form at that meeting and we wanted to run. . . . People were starting to put inone!- on the table as far as what they mere going to do with Prop 9 9 . and Stan thought it would he great for us to spur them along by saying what we Lvere doing. Stan and Xlary both begged us to he there. . . . Llary decided, and she probably regrets it now, but Mary decided that in order to win Prop 9 9 we had to be 1' major player. . . . . . . it ~ v a sawful. The Cancer Society s ~ i dnothing, Lung said what they were going to put up, we said what we mere going to put LIP,Heart said \vhat they had to put up. Cancer stayed silent. Theresa only said one or two things, one of which was, "\Veil, ~f you heat up the governor, how do you expect him to sign your bill? K7hywould he sign the bill if you heat him up?" . . . She said nothing about m y money. The next thing I know, Cynthia [Hallett of the Los Angeles LLA] calls me from L.A.and tells me that the Cancer Soc~etyhas announced the week before in a public forum . . . they had I think it was $rlo,oooand they mere going to run a Save 99 c,~nipaign.Now why the Cancer Societ!- ~voulclfeel free to discuss this publicly, . . . hut would sir there in a meeting w t h her socalled partners-an inside-the-room confidential meeting-md not say a \vord about it is beyond me.'

XNR d ~ not d belleke that the c o a h t ~ o nWJS prepared to adopt a vlgorous grassroots strateg!, attack the CMA, or take ANR's a d v ~ c eser~ousl\.. Hobart "came alvay from that rneetlng really firmly convinced . . . t h ~ s 1s not going to At the December meetlng Glantz knew about the money that XHA, XLX, and XNR had a.iailable, but he did not know about the XCS plan. H e later recCdled. \VC n e n t Into that rneetmg v ~ t $86,000, h n h ~ c hI thought, ~ntehgentlrspent, \\~.d5e n o ~ ~ g Inone\, h and I ment up there ,111 ewc~ted.And w h ~ h,lppened t was

Domg It Differently

29;

exactly the opposite of what I was expecting, and I think the basic prohlern \v35 that if normal human beings had been at that meeting, as opposed to voluntary health agency lohbyists and small-minded people, \ve would have walked out of that meeting excited and with a new leader in Mar!.. Because she's the one who pulled it together. She had established a working relationship ~ v i t hTCS. She had gotten all the key stakeholders in the room and come up with a significant amount of money. 1 ~vouldhave thought we would have walked out of that meeting with a new fresh face, with a smart woman with some serious resources: 1 was there Ivith the sort ot intellectual stuff, Julia was there with the grassroots stuff, Tony was there with all of his insider stuff, which he's good at, hlary was there. We had Paul Knepprath, who is good with the media. And 1 think we had the real makings of n good solid campaign. . . . I think the)- were tremendously threatened by her [Mary Adamsl and thc Heart Association. . . . This had been their little sandbox for all these years and all of a sudden, here was a new player. And rather than saying, "Oh boy! We've got somebody else to work with, \ve can be strong and productive and this and that," they mere instantly threatened. . . . And I think the fact that Theresa did not disclose that the Cancer Society had this big wad of money at the meeting was just at the very least, unprofessional, and duplicitous and devious and dishonest and all these other thlngs. And so me came out of that meeting. . . very depressed and Julia had had it. And I was very discour'1ged.-

The only person who did not seem discouraged by the meeting was John hliller. Miller felt that the meeting revealed the divisions between the insiders and outsiders but that, in the end, having an aggressive outside campaign might be helpful." Whereas Najera and Knepprath suspected that XNR and Glantz \\.ere threatened by XCS, Glantz n7as concerned that XLA and ACS were threatened by XHA. Either way, the questions about leadership and direction, far from being settled by the meeting, seemed to be exacerbated. Despite their differences in strategies, however, all the players believed that three things had to happen in 1996 if they were t o secure full funding of the Health Education and Research Accounts. First, the CMA had to drop its advocacy of the diversions. Second, the sole reliance on the inside game had t o end and the grassroots constituency had t o be involved. And, third, the media attention had t o be recaptured with a focus on "following the will of the voters" instead of a budget battle.

THE C M X California's f i s c ~ lproblems m d the CMA's support of di~ercionchad been the g o \ e r n o r ' ~best defenses for d ~ v e r t ~ nthe g P r o p o s ~ t ~ o99n momes.

29-4

Doing It D~tferently

Scott emphasized the importance of the CMA t o the success of previous diversion efforts, saying, I don't necessarily believe that you're going t o find secret c o m r n n n i q ~ ~ ebes tn.ee11 the tohacco industr!- and Stevc Thompson [the CLIX's chief lobbyist] or anyhody with the California Aledical Association. I don't think that there is direct c o n t x t and I don't think there n.as intentional collaboration. Rut \vh,lt you had was a sort of a symbiosis \vhich \vac acquiesced to by the I l e d i cal Association because it furthered their goals. As this relates t o Prop 99, !-OLI h,td the hledical Association that w m t e d more money tor direct n i e d i c ~ ~serl vices, specificall!- CHDP. You had the tohacco ~ n d u s t r ythat n.,is only too happy t o let that h,~ppen.The hlcdical Association in the minds of the lcgislators w h o want to support the tohacco industry becomes their a s t r o r ~ ~ rtheiif, front. They say. "\Veil, I'm just following the \ ie\vs of the C,llitornia hlcdical Xssoci,~tion, which has always hccn very strong 011 tohacco issues, cosponsors of Propositiim g g , C O - s p o ~ i w rofs AB I j." Whatever else !.ou n m t to say 'lbo~ltthein as 1' special interest, you can't impugn their reputation o n tohacco. You could, hut for a legislator \vho is inclined t o \ore tobacco's w ~ y , that gives them convenient cover.i

In fact, there n as n much more nctli e , ~ n dd ~ r e ceng,igement t between the ChIA and the t o b ~ c c o~ n d u s t nthan Scott bellmed (see ch,lpters 3 - 7 ) . A11 m q m r t m t le'~dershipchange in the ChIX helped t o shift the C M X awa) from it5 ,igglessl\e opposition t o the ~ntl-tob'icco eduintion m d rese'irch p r o g r m u . In 1995 Dr. ]XI\ Lewin n . ~ appointed s as the ne\v executlTc \ice pres~dent,r e p l a c ~ n gRobcrt Elsner. L e n m h ~ headed d the p u b l ~ chealth d e p ~ r t m e n in t H a n nil prior t o his C h l h 'lppolntment and \\as personall) s) rnpathetic t o t o h ~ c i oi o n t ~ o lWhen . asked ,lhout findmg Proposition 9 9 o n his agenda almo5t i n m ~ e d ~ a t e Lh ,e n ~ nsaid, As I arrived o n the scenc. I \vai controntcd ~ v i r h, ~ l l e g ~ ~ t i ofrom n s Dr. Glantz and others, \vho told me that C I l A h ~ i been i far from ,l proponent of antitohacco efforts and reall! had thwarted those efforts by \-irtue of its collusion with the t o b ~ s c omdustry ,lnd man!- other nefarious scenarios. I line\\ from my discussions with the leadership, the doctors ot the association, that nothing could he further from the truth. And while I n-as eread!- concerned, I knew that there had t o he some complex relntionship in the competition for f ~ u i d s or in government relations or in strategies and tactics, where you have compering agencies in ,I \er! awkward sratc of:\vorking against each other instead of with each other.'"

At the tlme, of course, Lewin \ \ a s not n n x e of the secret t o b ~ c c oindustry memos documenting ~ t relat~onship s w t h the C MA. (These memos \\ere not made puhlic until 1 9 9 8 1'5 part of the State of M i n n e s o t ~ ' sl ~ w -

s u ~ at g a n s t the tobacco ~ n d u s t r \ . L ) e w n recogn~zedt h ~ the t CMA's hlst o r r o n tobacco control \\as 1' problem. H e went on to sa), In the hack of the histor>-o f told Heart that the1 couldn't hare ~t both w ~c.\ . . . And ANR, of course, has t h e ~ r 0n.n stvle, the ~ , i rthe1 d o thlng5."' Beerline went to on t o sCl\ that ~f AHX n c n t off to u o l k n i t h ANR m ANR's st\le, then AHA could not he p x t ot the old ~ o a l i t ~ o n . Ji'h~lenot will~ngto be confrontat~ondl,XCS \\,is pl,inn~ngto climge ~ t ts~ i t i c sfrom the p s t . The o r g m ~ z ~ ~planned t ~ o n t o detote staff t o coo r d ~ n a t ~ na ggi m r o o t s canp'ltgn and t o h ~ r 1e' protess~onalp u b l ~ creLtlons firm to help ,ittr,ict med1~1 'lttentlon to Proposition c)c) and ,lrl m g e meetmgs with ed~tori,dboards.

THE " H A L L OF S H X h l E " ADVERTISE.hIENT The core ot the , i K R / X H L i strateg? t v ~ sto b r ~ n gthe Issue ot Proposlt mfoimed tlon 9 9 back hcfore the public, n ~ t hthe e.ipect,it~on t h ~ 'm and engaged eleitorate n o d d force the politmans to ~inplementPropod to slew s ~ t ~ oyc) n the n a r the loter5 ~ntended.The media h ~ come ~ ~ more fight oxer morle\ In Sacranlento. So the P r o p o s ~ t ~ oc)c) n as I L I one filst step In a c c o m p l ~ s h ~ ut gh ~ goal s n a s getting the m e d u mterested in the Issue h\ puhl~shing3 ier\. strong ad1 ert~sement111 the Sactanzento Bee attacking Go\ernor W ~ l s o nand CXlX l o h b 1st ~ \te\e Thompson for the11 roles In the P r o p o s ~ t ~ o9n9 d1\er51ons. T h ~ sad\ert~sernent,mhich '~ppearedon J J I I L I ~3~0), J 9 9 6 , teatured photographs of G o ~ e r n o W11r son 'ind Stexe T h o ~ n p ~ oJ Sn the inock noinlnees tor the "Tobacco Industr, Ha11 ot Shane" (figure T 6 ) . The ,ld\ertisement '~ttractedThompson's attention. Nancl h l d l e ~of the lam firm H\ de, Miller & Omen wrote B o w e r , objecting t h x "X o u r political ' l d ~ e r t ~ s e m e nist person,dl\ and profess1011a11\1 d x n C ~ g m to g 311. Thompson. H e n o u l d l ~ k ea r e t l x t l o n of the dcirnag~ngand ~ n a c ctuate statements in an ,ld of equal slze placed 111 the Sacimnento Bee '1s soon '1s poss~hle.H e is lequestmg ~ p p r o \ a of l the l,ltlgu,lge of such m

Nominated* for the

TOBACCO INDUSTRY

3

n?

If you believe these

Tobacco Industry Heroes Belong in a

HALL OF SHAME instead: 11:

C w ~ s e m c C :' (916) 44LCZR41 Tdl htm to enforce the law we pawed

Figure 16. "Hall of Shame" newspaper advertisement. Americans for Nonsmokers' Rights and the American Heart Association ran the advertisement in the Sacramento Bee on January 30, 1996, to indicate that the rules of the game on Proposition 99 had changed. (Courtesy of Americans for Nonsmokers' Rights)

ad."'} S t e l e T h o m p s o n t o l l o w e d t h ~ letter s w i t h o n e o n ChlX l e t t e r h e a d t o Bon ser t h ~ re'ld: t The issue of whether the Child Hcalth [and] Dis,lbility I'revent~on program should be funded in p x t xvith Prop. c ) ~ )health education funds goes back t o initial implementat~onof the initiative. While members of the initial Prop. 9 9 coalition disagreed on this issue, J compromise was reclched t o fund CHDP from health education to ensure enactment and maintain a common front against the t o h ~ c c oindustry \vliose ~ m j o objective r ~ v a to s elimin,lte the television advertising p r o g r a n . This initi'll agreement occurred t\vo years prior to 1117joining ChIA. As a legislative staff person at the time, I supported the agreement hecause the threat t o thc advertising program was very real. . . . As tobacco tax revenues declined as a result of the m,ln!- successful efforts i o l l o ~ the ~ ~enactment ~~g of Proposition 99 . . . indeed, including efforts of the Heart hssociatmn . . . competition for fewer dollars became intense. and what w x once considered a compromise became ,In "illegal raid" o n the tobacco education account. . . . Through legal co~msel.I requesteci (in addition t o Dr. Lenin's request), that you apologize for !-our untrue advertisement. As the ,~ttachmentsindicxe, you h,lr-e n o intention of doing so. In tact, while litigation was never mentioned in hls. lliller's letter t o you. >.outhreatened to counter sue ("slap-suit") if I chose to pursue the issue legall!-. Outside of fulfilling a n enormous e m tional need . . . \vhich nil1 stick in my cran for a long time to come. . . . I don't believe litigation will result in civilizing this dehate. 1 believe you've done your cause an enormous disserv~ceand hope you rcilecr o n the value a n d ethics of your current t,~ctics." T h o m p s o n a l s o d e f e n d e d CJo\ei-nol WIiIson, ho, i n his 1iem, " W J S a l s o u n f a i r h s m e a r e d i n \ o u l ,id." A d a m s \ \ a s s ~ l i tc h ~ ht e r n e v o i f e n s e~ U ~ a s g o i n g to g e t h e r o r g a n i z a t i o n s u e d , ,ilthough Bolt s e r s h l u g g e d otf t h e T h o i n p s o n lettei '1s bluster. C a r o l a n d G l a n t z p l s s e d t h e t h r e , ~ t e n ~ nletter g o n t o t h e Carz Frmc~sco Chro7zrilc 'ind ~t m a d e n e w s :

''

Ddrts, not h e x t s , ,Ire tl!-ing this V,llentine's 1 ) ~ ybetn-een the American Heart Associ,~tionand orgmized medicine: The nonprofit group claims that Cnlifornia doctors have run of \\,it11 Governor \\"ilson and the tobacco industry. The latest sp,1t-i~1sty even by S'lcramento srnndariis-hegan two weeks a go when the California ofice of the American Heart Association signed 3 n e w y a p e r ad\-ertisement "nominating" \\"ilson m d the California hIedical Association lobbyist Stew T h o ~ n p s o nt o the "Tohncco Industry Hall ot Fame." . . . RTilson ~ v nor ~ samused h! the ,?d. And Thompson-one of the most prominent figures in the state capital-had his personal Lln-yer fire otf a cifm a d for a retraction.

Doing It Differently

305

Dr. Jack Lewin, executive director of the California Medical Association, called the name-calling "unconscionable" and "slanderous" in a letter to the heart association and threatened legal action if more advertisements appear. "The heart association will print no retraction," said Mary Adams, chief lobbyist for the California charity. Adams said that the association will forge ahead with a publicity campaign that challenges doctors' roles in the battle over anti-smoking programs. "This is a diversion from the American Heart Association's way of doing business, but that just underscores the importance we attach to this," said Adams. "It's time to get this issue out in the open."l6

The media was finally paying attention to Proposition 99 again. The fact that AHA had allied itself with the "radicals" at ANR also interested the media. Steve Scott of the Califovnia Journal observed, The Heart Association's participation was crucial to the credibility of those ads. ANR is a wonderful organization. They do a lot of good stuff but they are viewed by the Sacramento press, which winds up covering this, as kind of the radicals. They're the ones who are beating the drums. When the Heart Association came on, then all of a sudden you had this group that is perceived as "centrist," one of the moderates. So one of the moderates had gone over to the other side and all of a sudden you had a situation where the voluntaries couldn't claim unanimity. Lung and Cancer couldn't say, "Oh well, ANRthey're just out there on the fringes.""

Thompson also apparently mobilized support from other medical groups. The California chapter of the American College of Emergency Physicians, the California Association of Obstetricians and Gynecologists, the California Society of Plastic Surgeons, and the California Society of Anesthesiologists all responded to the "Hall of Shame" advertisement by writing an open letter to the California senators and Assembly members to lampoon the same "hit list" of projects that they had lampooned in 1994 during the hearings on AB 816. The letter from the specialist groups made it sound as though the same old fight about money was about to surface again. CMA lobbyist Elizabeth McNeil was unhappy with the advertisement, not only because it attacked the CMA but also because she felt it would make Wilson more intransigent: The first ad was pretty devastating as far as moving anything politically, and we thought that shut the door completely to doing anything. . . . I think that turned off a lot of people, not only in the Capitol but around here. I think it was a very stupid move politically. I think it hurt his kids, hurt his family, and he's been someone who has always fought for kids' programs and health pro-

grams. . . . But it just dug the governor in. The governor called up Steve and said, "Forget it, I'm not going to compromise on this and all conversations are off, basicall!."'The XHX and X N R shrugged off these crltlclsms. The) purposeh had des~gnedthe ad to get people's attentloll, bel~evlngthat ~t\vas better than bemg Ignored. Isenberg thought the 1996 a d ~ e r t ~ s ~c na gm p a p had ialue, and he also ionfilmed that ~t emaged Thompson: "Thompson \\as beside h~mself.God, he was so m ~ d hlx . w ~ f took e . . . the one M ~ t h Steie in ~ t She . altered ~t a 11ttle b ~ and t scud, ' S t e ~ eThompson, drug dealer' [laughter]. Xn\waj, Steve dldn't thlnk that was \er! funn!. Well, ~ t ' sl ~ k em e n thmg else 111 pol~tlcs,~t escalates the battle. It c e r t , m I ~lrntated W ~ l s o n ag~tated , the C a l ~ t o r n ~Mae d ~ c a X l s s o c ~ a t ~ oD n . I ~t~have some ~ m p a c t ?M ~ g h have t had some Impact, together w ~ t hthe second ia\vs~llt." T H E WELLNESS G R L I N T In hlarch the C,ll~fornla\Y7ellness Foundatmn, h ~ c hhad financed the \oter e d u c a t ~ o ncmlpalgn about P r o p o s ~ t ~ oIn8 8, g a e~the AiXRIAHX m e d ~ astrategT a h ~ i g eshot 111 the arm: a $250,000 grant to run a series of ad~ertisementson the status of the Proposit~on99 Health E d u c a t ~ o n and Research p l o g r a n ~ sand t h e ~ rImportance. The campaign was not des~gnedto l o b b ~tor an\ part~cularplece o f legislat~on,but rathe1 to educ'1te and ln\ol.re the p u b l ~ cIn the debate oker the tuture of PropoSltlOll 9 9 . 3 The Hall ot Shame a d had attracted the attention of Herb Gutither, d ~ r e c t o or f the P u h l ~ cVedra Center In San Francisco, n h ~ c hhad run the nonpartisan ad\ e r t ~ s ~ n campaign g on P r o p o s ~ t ~ oJ n88 w ~ t ha Slant from the Wellness Found,lt~ona hear earl~er(see chapter I I ) . Gunther had been mterested In h e l p ~ n grestore the IntegntJ of Proposlt~on99 but had not met an\ cred~bleplar ers w t h I\ horn to n o r k . The het that the AHA had ,~doptedsuch a n aggresslLe approach mpressed Gunther, ,ind he arr m g e d a meeting henteen cl ant^ and K7ellness Foundat~onpres~dent Gark Yates to d~scussP ~ o p o s l t ~ o99. n G l a n t ~later descr~bedthe nieetlng 111 a n Inter\ leu :

Gary haicall! s a d , "1 kno\v \vhst you \cant. YOLI\vant some money to r u n ads about Prop i ) c ) m d I had thought it over and decided not to do it." I had pitched the idea to him a t the meeting after a n adequate amount of wine, and my whole idm of engaging the public. They had just come off this victory in [Propos~tionlI 8 8 ;ind really shown a whole new Ivay foundations could play

Doing It Differently

307

J I ) O S I ~ I \ C~ o l e III p u h l ~ chealth. I h ~ ~ ~u c ~ ~\he d l wanted l ~ to do w m e t h ~ n g l ~ k ethe I X X c,lmpLllgn and t h ~ the t H e x t Assoc~,monn ,l$ shon ~ n gsome guts. And ~tturns out that Wrellness had been klnd of \\.c,tch~ng.Tobacco ~ s n ' t one o f their pr1o11t~,lreas, but the\ 'd been \vatch~ngProp q q , w,lntlng t o d o somethmg t o help a n d not s e e ~ n g,In\ place t o put the mane\, hecause the1 looked ~t ~t '1s the s'lme old same-olds, m ~ k ~ the n g \ , m e old mistakes. And the\. had n o t ~ c e dthe IHd1 of 511,lrnel x i , too And the\ h,id sten the article ,ibout the thre'its from the C\lA, too, ,lnd mele ~mprcsscdh) t h ~ t . And n e r e ~mpreswcithat the H e a t Assoc~atlon\ z ~ s\zilllng t o d o ~ t A. h R had a \er\ good repntatlon with them to1 some o t l i e ~p1 olects the\'d heen In\ ol\ ed \\ lth. And In the end Yxes sald, "Oka\, I'm mterested In d o ~ n gthls." And he looked ~t G ~ m t h eand ~ he sm3, " H o w mac11 mane! 15 t h ~ sgoing t o t,lke?" i n d Herb \,lid, "A hundred thous,~ndciollars." And then \r,ites looked ~t me. I riie'ln. that was mole nione\ than I h x l thought n e had neecied ~t the heglnnlng. And then Yxes looked ,lt me m d he ss\ \, "You k n o n , l o u don't take on the C R l h ~ i i dthe gorernor 'lnci low. Horn much d o ~ o need u to m ~ n Can i \ ou \\ III to1 ,I hundred t h o u s ~ ~ dollars?" id And I s ~ ~ "I'm d , prettl sure " 4 n d hc scud, "I don't n 'lnt t o be prett! sure. 1 w ~ n tto he sure. Ho\v much cto \ OLI need t o be sute?" And I thought for ,I mmnte, took J deep b r e x h , m d s d , "X q ~ l a l t e ro f a m i l l ~ o ndollx,." And he looked ~t me and he said, t h ~ swas n ~ g h t ,m d he s a \ \ , "I w m t ,I gr'lnt o n IJIJ about nine-th~rt\ o n J T11~1rsd~l~ deik b\ f i ~ o'clock e T u e d i \ i n o ~ ~ l l nf go $~ 2 ~ O , O O IOn. a n t A K R F o n n d a t ~ o n to he the f i s c ~ l'Igent. And \ O L I \cork ~t out \ \ ~ t hthem a i d He,lrt and the PubI K 41ed1a Center " S o n e had one 11) s t e r ~ c ~weekend il of puttlng t o g e t h c ~this proposd.

The resulting grant t o ANRF paid tor '1 series of ,~dvert~setiients t o he de\eloped by the P u b l ~ ch l e d ~ aCenter In concert w t h G l a n t 7 , ANR, and XHA. The ads \\.ere t o appear In major Cal~forniancwsp,ipers and d ~ s cuss Issues s u r r o u n d ~ n gProposit~oil99. In a d d i t ~ o n ,there were fund? for p u b l ~ co p m o n pollmg and grassroots educatron. Gunther knew the h a r d - h ~ t t m gadvert~sements~ v o ~ i 1~ l d o ~ i ot f c h a r x t e r for the v o l u n t x y health agencies: " O u r side invariably thinks the only \vay you win is by b a n g mce, and the voluntar~esare mto that. I mean certa~nlyaround tobacco Issues, ~ t ' sbeen ahout, 'Oh, I O U know, I hope my back isn't hurtmg the heel of > o u r shoe, G o ~ e r n o rTie . really appreciate \ o u r st'lnd~ng o n us In thls \\,l!. Let us know what else \ve c m d o t o i i ~ k )e ou e\en more comfort,tble.' And t h ~ t ' sthe a p p r o ~ c hthe r o l u n t m e s h , ~ \ eh d . " " X C a n d ALX t o a meetlng ~t the P u b l ~ cM e d ~ aCenter Larol i n \ ~ t e d( t o d ~ s c u s sthe strategy , ~ n dencourage t h e ~ pnrtlcip,~tlon. r Beerline, however, had very little interest in Glinther's approach:

3 08

Domg It Differently

our differences on ho\v \ve \va~iteclto run the campaign and basic,~llym h ~\ve t agreed upon at that point in time [was] that there was 110 way that we could come together on this. So ANR and Heart would wage their campaign, we would wage ours. me \vould keep each other informed. The!- felt very c o n fortahle ahout the type of' campaign thar they had in mind and we dubhed it the "black hat." . . . \Ye said, "Okay, but n~e'renot going to do it and \ve can sec that this m ~ g h present t some political problems in Sacramento and we're going to have to distance ourselves from you." . . . But there was just no other xvay that Ive could reconcile it hecause of the extreme difference in the way that \ve lvere planning to run our campaigns."

While XCS and XLX tried to work within the exlsting power structure ( w h ~ c hincluded the ChIX), AHX, XIVRF, Glantz, and Gunther started tr\ ing to change ~ t Thew . first goal \vas neuti-al~ziilgthe CMX. T H E ChlX H O U S E O F DELEGATES M E E T I N G XHX and XNRF bel~e\edthat the CMA's p r o - t o b x c o position orlgiilated with its political leadership and did not enjoy particularly broad support among its physician members. To force the issue, they ran a fullpage ad in the C:aliforilia edition of the N e w York Times o n February 2 9 , 1996, during the ChIX's annual House of Delegates meeting. The advertisement was an "open letter" signed by former surgeon general C. Everett I h o p and other physicians and scientists telling the CMX, "It is tlme to change" (figuie 17). The adxert~sementhelped st~mulatea major floor fight over CMX's pos~tionon Proposit~on99. Roger Kennedl, a n ho also served 'IS chair of his local p h v s ~ c ~ airon1 n Santa C l x Count\ ~ d retobacco control c o a l ~ t ~ o \v,is n , ~ n x o l \ e d111 the floor fight ~ n later called, "It r e d h hec'ime clear that \ve mere not going to win based on the resolution, which n as 1' 1 er) definite statement that the ChlX should change ~ t posltlon s . . . but I think t h ~ vt e got what we could. In retrospect, I'm sorrv I d ~ d n ' push t h x d e r . . . . I thmk that golng down t o flaming defeat In the face ot the public IIICI! hd\e ,~ccomplishedmore in the long run. . . . There's no questlon that the leadership of the C M X \vas Figure I 7 (opposite). Newspaper advertisement designed to change the C,\IX's pro-tobacco position. The American Heart Association m d the American Konsmokers' Rights Foundation ran this advertiwnent in hlarch 7 9 9 6 during the ChIX's annual Hou5e of Delegates meeting to stirnulate discussion of the ChIA's stance on tobacco issues. It helped precipitate a vigorous floor debate that marked the beginning of changes in ChIA policy. (Courtesy of American Nonsmokers' R~ghtsFoundation)

not golng to take 1' firm posltlon that the! mould absolutelv oppose an\ reallocation of funds." XLA w,is w o r k ~ n gthrough its own doctors who u e r e ChIX members to get 1' resolut~onsupporting full fund~ng.AccordIng to Nalet-a, "We took tlm t o the public to make it a p u b l ~ cdebate ,lt the House ot Delegates. X7e I ~ t e r d horganized a public debate tor M hat I \\ould sal was the first tlme on the floor oi the board, of the House of Delegates for C hlA."' The e\entu,d ChIX resolut~on\\,IS less than the public h e d t h ,ld\oa t e s nanted. O n hlarch ;, ~ 9 9 6 the , C M A House of Delegates loted t o support full fundlng of Proposlt~on99's Health Education and Kes e x c h programs ~fthe golernor 'ind Legis1,lture u e l e \\llling to fund the "challenged p ~ o g r a m s "hmm the state General Fund.>' If the governor and Leg~slaturerefused to use the Gencrd Fund, the ChIA \xould contlnue to ,lccept Proposition y ~tu~icis ) foi these progrxns, decp~tethe court rulmgs. The ChlA retused to n ~ t h d l ~~ ut bend s of the court b r ~ e t sIn support of the gm einor's positlon on A B 8 T 6 and SB 39 7 . But in Aprd I 996 the ChIA d ~ rele'ise d ,I statement announcing ~ t oppos~tion s t o the governor's propo5ed budget concerning the use of the H e d t h E d ~ u t m n m d Research Accounts to fund med~calsex\ ices. >' Le\\ ~nsaw the House of Delegates vote '1s ieplesentmg a "tairlb dr,imat~c"change: I think that the changc was besLiuseI'm a ne\v leader and I was able to go directly t o the doctors in the ( M A and ask them what they wanted, what they helieved in. ;\nd it wa\ very clear that they \\.ere quite ndling to support education and research as \\-ell as indigent health c x e m d that the!. hadn't been asked the question in that Lvay, that they d ~ d n ' tthink you should undermine education for indigent he,llth care. But t11t.j- didn't think y o u s l ~ o u l dcut indigent health care t o e n h m c e education. Their strateg! was that ,111 of these things \vere too important and t h t the state had enough resources t o d o all three of these things and d o them wrll.lL'

The CXIX l o ~ n e dthe AC5/ALAA'sC o ~ l ~ t i oton Restore Proposit~on99, J d e c ~ s ~ othat n had the effect of ~solatingthe gmernor. Xccold~ilgto h1A l o b h ~1st E l ~ ~ , ~ b LlcNe~l, eth the C h l X '1ction not o111\ ~solatedthe go\ernor but also " s h o \ ~ed them [the administration] and all these other groups, ne're golng R ark for somethi~igelse m d that ~soldtedthem, w h ~ c hmade ~t difficult for them. In some \\,IT s made ~tmore d~fficultfor us t o b r ~ n gthem round hecause the\ n e r e a l~ttleupset 1 ~ 1 tUS h abo~lt that." '- The CXlA's changed posltlon made ~t less I~kellthat the goveinor and tobacco ~ n d u s t rcould ~ use m e d ~ c ~necess~t) d as the excuse for guttlng the Proposit~onc)q Health Educat~onand Resexch programs.

Doing It Ilifferently

ZI I

THE I'HILIP M O R R I S MEMO One of Wilson's major responses to the criticism that he was pro-tobacco had always been that he took no direct c m ~ p a i g ncontributions from the tobacco industry. T h ~ cs l a ~ mignored the tact that the tobacco indusa P'lrt) tr) \vas a m~ljorsource of mane) for the C a l ~ t o r n ~Republican $165,727 in the 199 j -1996 election cycle '"-and that Wilson was the political leader of California Republicans. In any event, Wilson's defense hit a major snag when ANR obtained a March 4, 1990, internal memo between tkvo Philip Morris lobbyists in Washington reassuring company esecutivcs that Wilson's act of returning some campaign contributions from the company did not mean that he was anti-tobacco. The Philip Morris lobbyists reported: Wilson is only sending about r h K of the IOOK he collccted. This I hK only includes checks he received either from a tobacco company or anyone working for a tobacco company, i.e., Harnish Maxwell ICE0 and chairm,~nof the Philip hlorris Executive C:ornmittee], hlrs. Ehud [wife of Ehud Houniincr, CEO of Philip Llorris USA], Kill Murray [former president of Philip h'lorris]. Apparently, he has also done this with other "controversial" industries 5~1i.11 as lumber, chemicals, and others. The decision to do this was Wilson's alone, and in rexponse to a wave of negative campaigning in California that not only attacks the candidates, but those hvho give to them as well. \ ~ J I /wil/ be pleased t o knutt, t / ~ P& t called H ~ m i s ht o explain t h t 1 4 ~doing s this to p ~ o t e c tHarnis/~as z ~ ~ eas l l himself: 17024 z ~ ~ ialso l l be pleased to k n o w t / ~ uPcte t is still "pro-toh;rcco. " '' [emphasis added]

\Vilson first saw the memo when he was b a n g mterviewcd on camera b) correspondent Peter J e ~ m n g sfor an ABC news spec~alon tobacco. W11son did not immediately say the memo n7asa lie, which limited what his staff could say later. (To the disappointment of many California tobacco control advocates, the exchange Lvas not included in the final broadcast.) The memo, and the fact that the $84,000 retained hy Wilson came from a Tarlet\ of a d ~ e r t ~ s ~~lgencles, ng law firms, and others who worked tor the tobc~ccoi n d u s t r ~ ,rece~vedd e ined~dcoverage.+3ANRF , ~ n dAHA also featured the memo m their first full-page adsertlsement ' ~ t t a c k ~ nWilson g f o ~d~vertingProposit~onc)c) 'intl-tob,icco m o n q Into ined~cals e n ices, u hich rdn o n April r 6 In the N e u ~York Tltizes, and Inter In the Yacrmzento Bee and Los Angeles T m e s (figure 1 8 ) . The advertisen~entreprinted the o r ~ g ~ n memo al and asked the questlon "Is t h ~ swhy Go\ernor Pete Wllson IS gutting P r o p o s ~ t ~ o n anti-tolmxo education and research programs?" The ad also posed this

11.5 T l M t T O ASK T H f C O V F R N O R W H O H I Q I A L L V W O R K S F O R TWI P I O P L f O F CALIFORNIA

OR T H I TOBACCO COMPANII