Two California Propositions Written By Trial Attorneys That Voters Should Reject

As of Wednesday, almost 800,000 Californians have voted by mail, representing 9% of total registered vote-by-mail voters and possibly about 17% of total 2014 ballots. With the election rapidly taking place, it is important to remember that Californians are not just voting on candidates, but also ballot initiatives.

Two weeks ago, I examined the four propositions on the 2014 ballot (Propositions 1, 2, 47, and 48) that are important to pass. As noted, all six of California's 2014 propositions are boring because none have a large and vocal voter constituency on both sides, making the campaigns either non-existent or one-sided. Today, I'll explore the two remaining propositions that are important to reject.

Proposition 45: "Public Notice Required for Insurance Company Rates Initiative (2014)"

Proposition 45 gives new powers to the State Insurance Commissioner to set and regulate health insurance premiums, just like 1988's Proposition 103 did for car and homeowners insurance. It, despite its title, has little to do with requiring public notice of health insurance rates. This proposition, like Prop 103, was written and largely supported by a group called Consumer Watchdog - a trial attorney group - who via the appeal systems set up in Prop 103 (and replicated in Prop 45) stands to make millions of dollars.

Why it is boring: While Consumer Watchdog and many of California's top Democratic leaders are behind Prop 45, the financial battle is massively lopsided; the "no" side has almost 38 times as much money as the "yes" campaign. More importantly, polls show that this isn't a toss-up race with just 41% of likely voters approving of Prop 45 as of early September.

Why it is important: This proposition was written before the implementation of the Affordable Care Act (aka: "Obamacare") and despite California embracing the ACA's state-based healthcare exchange provision - Covered California negotiates, monitors, and largely controls health insurance premiums - Consumer Watchdog and incumbent Insurance Commissioner, Dave Jones, decided to push ahead with the outdated initiative anyway. This proposition is superfluous given the current regulatory environment and would only add complicating factors to an already overly-complicated industry and regulatory system. The fact that Consumer Watchdog and Commissioner Jones are pushing ahead prove one thing: Prop 45 is only about special interest money and power.

Proposition 46: "Medical Malpractice Lawsuits Cap and Drug Testing of Doctors (2014)"

In 1975, the state legislature passed and Jerry Brown signed the Medical Injury Compensation Reform Act (MICRA), which capped non-economic medical malpractice damages at $250,000. Because the cap was not pegged to inflation, many have argued that the $250,000 level is too low today. Proposition 46 would increase the cap to $1 million (and peg it to inflation) and also includes sweeteners: require drug and alcohol testing of doctors, require publicly disclosed suspension for doctors who tested positive, and require consultation of a state-run prescription drug database before scripts are written.

Why it is boring: Proposition 46 may be the least-boring of the six 2014 ballot propositions, but the fight is still massively one-sided with the "no" side garnering massive monetary (raising 9 times as much money as the "yes" side), editorial, and organizational support. More importantly, voters appear thoroughly unimpressed with Proposition 46: just 34% of likely voters approved of the initiative as of early September.

Why it is important: California's proposition system is notoriously inflexible; the only way to amend or repeal voter-passed propositions is by another voter-passed proposition (or if it's found unconstitutional by the courts). Therefore, propositions should be narrow in focus and rigorously debated to highlight any flaws or red-flags. Proposition 46 has numerous flaws and red-flags: all of the focus-grouped sweeteners - drug testing, suspension, and prescription database consultation. There is no reason these provisions, which have logistical (and possibly, constitutional) problems, should be included with the MICRA cap increase. There is a valid argument that the MICRA cap is too low, but to immediately jump 300% would increase medical malpractice insurance, meaning either higher healthcare costs or healthcare providers going out of business.

Propositions 45 and 46 - both written and heavily support by trial attorneys - use California's initiative system to only benefit their supporters, and subsequently create new policy problems. And while the perfect is the enemy of the good, both Prop 45 and 46 are not even close to being good.