‘Deep Pockets’ Controversy : Prop. 51 Ads, Pro and Con--Is Voter Being Misled?

As both sides in the Proposition 51 “deep pockets” initiative campaign concede, it is extremely difficult to accurately compress the arguments over the highly complex issue into 30-second television commercials.

But millions of dollars is being spent on such commercials by the two sides, and in their wake there is an angry controversy about whether the voters are being misled.

It mostly centers on the anti-Proposition 51 ads, financed mainly by members of the California Trial Lawyers Assn., although there are also suggestions that the pro-51 commercials, financed by doctors, insurance companies and other business interests, have occasionally been deceptive.

The use of a new commercial over the weekend in which Candy Lightner, the founder and ousted president of Mothers Against Drunk Drivers, charges that passage of Proposition 51 would “let the guilty off the hook,” including toxic polluters and drunk drivers, has stirred up new recriminations.

The proponents have been charging for weeks that the opponents have been confusing criminal law and civil law, distorting the consequences of the measure and blackening the names of the proposition’s backers in a scare campaign designed to defeat the initiative by confusing the electorate.

Now, in an unusual twist, even one of the most vocal Proposition 51 opponents--Atty. Gen. John Van de Kamp--has confirmed that in making earlier anti-51 commercials, he refused to use a sentence that the drafters of the commercials have since placed in Lightner’s mouth, because he considered it misleading.

It is the clinching sentence in the new Lightner commercial: “Don’t let the guilty off the hook.”

Under California liability law now, each party at fault is held to be 100% responsible for all damages, and the actual payments are often parceled out according to each defendant’s ability to pay. If Proposition 51 were adopted, that concept would remain for all economic losses, medical expenses and lost wages, for example, but for “pain and suffering” such as lasting emotional effects, each party would be liable to pay only up to their percentage of actual fault. So if a defendant were judged 40% at fault, he could be made to pay no more than 40% of the pain and suffering losses, even if no other party at fault had the wherewithal to pay.

‘Did Not Want to Mislead’

Van de Kamp said that after going over the campaign coordinators’ suggested language for his commercial “line by line,” he had refused to use the “Don’t let the guilty off the hook” phrase to summarize this change “because I believe that what I said should be accurate and I did not want to mislead.”

“That particular sentence concerned me because of two phrases, ‘guilt’ and ‘off the hook,’ ” Van de Kamp said. “I relate the word guilt to a criminal law proceeding. I wanted to avoid an implication that this issue applied to the criminal law. I came up with the line that ‘Californians are fed up with letting wrongdoers off easy.’ ‘Off the hook’ bothered me because it would mean that people could get off scot-free. In fact, there would be reduced liability, so we substituted that line about letting them off easy.”

Van de Kamp said Lightner, not being a lawyer, might not have been as alert as he was to the distinction that should be drawn between criminal and civil matters.

Strongly Implied Rebuke

As careful as the attorney general’s language was, it amounted to a strongly implied rebuke to his own side for going ahead and using language that he had construed as misleading. Carl D’Agostino of the Berman-D’Agostino campaign organization, the firm that drafts the language of the anti-51 commercials, responded that Van de Kamp, as attorney general, “adheres strictly to legalese.” D’Agostino said he doesn’t “see the distinctions” that Van de Kamp does, and that the Lightner commercial is merely using “laymen’s language” in which “guilty” and “off the hook” have wider meanings.

Van de Kamp’s expressions of concern about campaign proprieties, meanwhile, did not overly impress the other side, the Woodward and McDowell campaign organization waging the pro-51 campaign. Coordinator Jack McDowell said that notwithstanding Van de Kamp’s professed desire not to be misleading, the attorney general’s commercials were very misleading.

In Van de Kamp’s first 30-second television commercial, which has aired for weeks, the attorney general says: “Some people say that criminals aren’t responsible for the harm they cause. It’s society’s fault, an unhappy childhood. . . . It’s my job to see that murderers and rapists are punished and that toxic polluters are stopped. But the chemical companies behind Proposition 51 say that toxic polluters who cause cancer shouldn’t be held fully accountable. Californians are fed up with letting wrongdoers off easy.”

Simplifications, Distortions

In his statement taking exception to the “Don’t let the guilty off the hook” language of the new Lightner ad, Van de Kamp said of his own commercial: “We’re not saying this is a criminal matter. . . . I did not want to mislead.”

“Well, I think he certainly did mislead,” McDowell rejoined. “No doubt about it. He misled the voters of California when he sought to connect the support of, and the supporters of, Proposition 51 with murderers, rapists and polluters. If that were not his intent, what other reason did he have for mentioning it?”

There have now been at least seven 30-second commercials aired on each side, and within many there are simplifications and at least arguable distortions.

For instance, one of the pro-51 ads drafted by Woodward and McDowell starts with the narrator saying, “Attempting to steal from a school, a burglar falls through a gymnasium skylight and sues the school for his injuries.” It then has Assemblyman Alister McAlister (D-Fremont) saying: “I wrote a law to stop ridiculous lawsuits like that, and who were the only opponents to my law? The California trial lawyers. And now they’re at it again. They want to stop Prop 51.” The narrator winds it up: “Proposition 51 is a fair, common-sense approach to help put an end to ridiculous lawsuits. Tell the trial lawyers they can’t get away with it. Vote yes on Prop 51.”

‘A Ridiculous Thing’

When Harvey Rosenfield, a coordinator of the anti-51 campaign, pointed out that the lawsuit mentioned in the commercial was not the kind of case that would be affected by Proposition 51, McDowell answered:

“We didn’t say that it was. The only reason we used it was that Alister McAlister carried a bill that would have ruled out such a suit and the trial lawyers blocked it. . . . This was a very ridiculous thing, where a burglar sued a school he was trying to burglarize.”

The exchange pointed up a feature of the Proposition 51 advertising campaign--that various symbolic associations are being made in the 30-second spots while more central issues of the initiative often go undiscussed.

One feature of the Lightner spot, for instance, is the implication that in opposing the initiative she is representing Mothers Against Drunk Drivers (MADD). But, in fact, MADD has voted to remain neutral on Proposition 51, and its national president, Norma Phillips of Escondido, said last week that Lightner has nothing to do with the organization now.

“I find the ad misleading because of that factor,” Phillips said. “Many people have been calling me. They are misled. There should have been disclaimers that she was not authorized to represent MADD.”

Acerbic Rivalry

In the background of the battle of commercials is the increasingly acerbic rivalry between the insurance industry and plaintiffs’ attorneys. Both sides have produced ads blaming the other for trying to put one over on the public.

For instance, another Van de Kamp commercial has the attorney general saying: “Californians are fed up with insurance companies taking them for a ride. . . . The insurance companies behind Proposition 51 say they’re losing money. Last year, nationwide, they made billions of dollars. Now, they’re backing 51 so they can make even more money, without being required to reduce your insurance rates one penny. Don’t let the insurance companies take you for a ride. Vote no on 51.”

McDowell has said that in the first reporting period for financial contributions to the campaign, the insurance companies gave only 18.7% of the total amount, while doctors and other businessmen contributed the lion’s share. But, in any event, D’Agostino said last week that he doubts he will use this Van de Kamp commercial all that much.

Resentment Against Both Sides

D’Agostino said he has concluded that commercials in which the lawyers and the insurance companies attack each other simply build public resentment against both groups. He complained facetiously that he gets “3,000 to 4,000 calls from lawyers each day” urging him to launch a stronger assault against the insurance companies, but he said he has become convinced that the commercials associating the initiative with toxic polluters are far more effective.

McDowell and his partner, Dick Woodward, said they have been polling, and the toxic polluters argument “isn’t going to fly.”

Nonetheless, McDowell and Woodward have taken the precaution of preparing a commercial that states: “Proposition 51 is fair. Injured victims will still get full payment of awards for all medical bills and lost earnings. But other awards, like emotion distress, will be paid only according to fault. A city 5% at fault pays only 5%. A business 60% at fault pays 60%, and a toxic polluter 100% guilty pays 100%. Prop. 51 protects victims and it won’t let anyone off the hook. Vote yes on 51.”

Offbeat Arguments

In short, the pro-51 campaigners have already taken the anti-51 phrases “guilty” and “off the hook” that Van de Kamp questioned and tried to turn them back on the opposition.

The Berman-D’Agostino firm has succeeded in the past in finding offbeat arguments that appeal to the electorate. But both the firm’s leaders and Van de Kamp aides contest the proponents’ view that Proposition 51 has far more to do with relieving local and state government of excessive liability judgments and thereby saving the taxpayers money than with any relief of toxic polluters.

“It could have a devastating effect on toxics,” said Van de Kamp aide Michael Strumwasser. “They may not have intended that when they drafted this, but it could. We don’t know how many will be affected or how many plaintiffs are out there. But we know there are significant numbers.”

Ironically, in light of Van de Kamp’s opposition to the initiative and his focus on these toxic claims in his first commercial, it was Van de Kamp’s own office that prepared the official title and summary for the initiative that appears in the ballot pamphlet issued by the secretary of state’s office. This concludes, “Approval of this measure would result in substantial savings to state and local governments. Savings could amount to several millions of dollars in any one year, although they would vary significantly from year to year.”

‘Most Severe Problem’

D’Agostino said that as far as he is concerned, this statement “is the most severe problem we have to contend with in this campaign.” Recently, he produced a commercial using consumer advocate Ralph Nader in which Nader states:

“It’s a fraud. The bureaucrats say Proposition 51 can save money, but it won’t. . . . Bureaucrats want to get off the hook when they don’t do the job you paid them to do, like keeping your drinking water safe. That’s why 51 is so wrong. City governments must take full responsibility when toxic chemicals seep into California drinking water. Fifty-one will not reduce taxes, but it will cost you plenty. Vote no on 51.”

McDowell responded that the commercial seems to be saying that Van de Kamp is perpetrating a fraud. “It is just indicative of a campaign that is crazy and mixed up, without focus, because they do not have credible facts on their side,” he said.

Both sides, meanwhile, indicated that the spots released so far will not be their last. Both said “another flight” of 30-second spots will hit the voters before election day.

THE PROPOSITION 51 ADS Here is a sampling of television advertising claims both for and against Proposition 51:

Anti: (Atty. Gen. John Van de Kamp): Some people say that criminals aren’t responsible for the harm they cause. It’s society’s fault, an unhappy childhood. (Narrator): Atty. Gen. John Van de Kamp against Proposition 51. (Van de Kamp): It’s my job to see that murderers and rapists are punished and that toxic polluters are stopped. But the chemical companies behind Proposition 51 say that toxic polluters who cause cancer shouldn’t be held fully accountable. Californians are fed up with letting wrongdoers off easy. Vote no on 51.

Pro: (Narrator): Five youths speed 60 miles an hour down city streets, go out of control and collide with a light pole. Beer is found at the scene. An injured passenger sues the driver, the shopping center, the utility company, the light pole installer and the city of Antioch. Though only remotely at fault, the city has to pay hundreds of thousands of dollars. The ridiculous deep-pocket law allows this to happen. It costs taxpayers millions. Change the unfair deep-pocket law. Vote yes on 51.

Pro: (Narrator): Attempting to steal from a school, a burglar falls through a gymnasium skylight and sues the school for his injuries. (Assemblyman Alister McAlister): I wrote a law to stop ridiculous lawsuits like that, and who were the only opponents to my law? The California trial lawyers. And now they’re at it again. They want to stop Prop 51. (Narrator): Proposition 51 is a fair, common-sense approach to help put an end to ridiculous lawsuits. Tell the trial lawyers they can’t get away with it. Vote yes on Prop. 51.

Pro: (Narrator): Prop. 51 is fair. Injured victims will still get full payment of awards for all medical bills and lost earnings. But other awards, like emotional distress, will be paid only according to fault. A city 5% at fault pays only 5%. A business 60% at fault pays 60%, and a toxic polluter 100% guilty pays 100%. Prop. 51 protects victims and it won’t let anyone off the hook. Vote yes on 51.

Anti: (Ralph Nader): It’s a fraud. The bureaucrats say Proposition 51 can save money, but it won’t. (Narrator): Consumer advocate Ralph Nader against Proposition 51. (Nader): Bureaucrats want to get off the hook when they don’t do the job you paid them to do, like keeping your drinking water safe. That’s why 51 is so wrong. City governments must take full responsibility when toxic chemicals seep into California drinking water. 51 will not reduce taxes, but it will cost you plenty. Vote no on 51.

Anti: (MADD founder Candy Lightner): My daughter was killed by a drunk driver. The killer spent 16 months in jail. (Narrator): Candy Lightner against Proposition 51. (Lightner): I founded Mothers Against Drunk Drivers because I wanted justice for wrongdoers. But if Proposition 51 passes there will be no justice because many wrongdoers won’t be held fully accountable for the harm they cause. A slap on the wrist is not enough for toxic polluters or drunk drivers. Don’t let the guilty off the hook. Vote no on 51.