12. The End of
By the beginning of 1994, California's tobacco control movement had
become a national and international model of how to use community-based programs and media
to reduce tobacco consumption and exposure to secondhand smoke: 334 communities had passed
local tobacco control ordinances, and the Legislature was close to 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 implementing the anti-tobacco
program, there was no longer any question about the effectiveness of Proposition 99's
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 no longer as obvious as it had
been when AB 75 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 99 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, Assembly Member Phil Isenberg
(D-Sacramento), who had chaired the conference committees that crafted AB 75 and AB 99,
referred to the unspent $21 million 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 to
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 (and thus a growing confidence in those who 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 to rely on all three. But 1994 was a bad year
for tobacco control advocates to be dedicating either staff or funds to a campaign to
preserve Proposition 99. They were stretched thin by the spring battle over AB 13 and the
looming fall battle over Proposition 188. Despite the inability of the health groups to
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 Isenberg.
Reauthorization was to be another insider deal.
The Governor's 1994-1995 Budget
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 to 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 43 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)
and other local programs would be hit even harder by any Section 43 reductions. Following
caseload adjustments and diminishing revenues, the governor's budget cut LLA funding from
$20 million in 1993-1994 to $15 million in 1994-1995, competitive grants were dropped from
$15 million to $10 million, 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 the initiative. In one of
the few instances in which the Public 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 (AIM), 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
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 in 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 when the Legislative Analyst reviewed the governor's proposal for AIM. The analyst
noted that AIM, 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 MediCal. 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 switch from AIM to
MediCal would have saved $74 million dollars, more than was being diverted out of the
Health Education Account. Thus, changing programs 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).
The Creation of 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,
Phil 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 do 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-making.
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,
We had lots of meetings with Tony [Najera] and John [Miller], the
hospitals, us, and the Western Center about Prop 99 reauthorization. At the time, we
all felt going in that pretty much trying to do status quo and make sure it was
reauthorized was kind of the program. And later on, the Lung Association and others
decided no, they didn't want to fund CHDP. They wanted it out and they wanted increases
for their programs. So we do feel like that was not the plan that we all went in with when
we asked Isenberg to sponsor the bill. That's strongly how I felt about where we went in.
¦I don't know if there was miscommunication. It wasn't articulated strongly where
his groups were really coming from. I think he [Najera]'s sensitive too because he was
part of the group that authorized the original CHDP expenditure and was criticized for
doing that, and I think was really feeling that criticism. So the tune changed and it was
a problem amongst all of us. [emphasis added]
The ALA's name appears with the CMA, California Association of
Hospitals and Health Systems (CAHHS), and the Western Center for Law and Poverty as
supporting the version of AB 816 that the Senate and Assembly voted into the Conference
Committee. The bill extended the sunsets for both the program authorizations and the
program appropriations to July 1, 1996, and also authorized the expenditures from the
Research Account. Senator Diane Watson (D-Los Angeles), the
longtime champion of the Health Education Account and John Miller's boss, voted for AB 816
at this stage.
According to Najera, he and Miller had agreed to a quiet strategy of
letting the Legislature make its decision and then taking the issue to court. He said,
We were not demanding [full] 20% [funding for Health Education] initially. We
were prepared to do what we had to do in order to get it out of here and take it to the
courts, and let the battle be there and not in here.  The
voluntaries hoped that Wilson would not win reelection and that a new Democratic governor
would be more sympathetic, ignoring the fact that opposition to the anti-tobacco education
and research programs in the Legislature was spearheaded by Speaker Willie Brown, a
Democrat. In any event, Wilson won reelection later that year.
Objections to CHDP
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 constituency that Proposition 99 had
spawned. The Sacramento-based lobbyists were not used to considering the grassroots in
their thinking. The Sacramento lobbyists were used to compromising in the Legislature
whereas local grassroots activists were used to winning pitched battles with the tobacco
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 recommendations for the Legislature regarding
reauthorization. Four major recommendations emerged from this conference: (1) 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 Account
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 was a strong feeling that Najera and the chair of the Tobacco Education
Oversight Committee (TEOC), Carolyn Martin, who argued against 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 20 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
commissioned by the Department of Health Services (DHS) to examine the structure of the
Proposition 99 program. The committee preparing the study was
chaired by Dr. Thomas Novotny of the federal Centers for Disease Control and Prevention
(CDC) and the School of Public Health at the University of California at Berkeley. The
central conclusion of the report was that the greatest threat to the tobacco education
program was 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 Kimberly BelshÃ© 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 ALA's position on Proposition 99 hardened. In an Action Alert sent
by ALA on February 16, 1994, ALA urged recipients to write the members of the Conference
Committee and request the following:
- the removal of Section 43.
- the removal of CHDP funding.
- removal of the requirement that 1/3 of LLA money go to perinatal funding.
- full 20% funding of health education.
The boards of the ALA and the California Thoracic Society (a related
medical association) adopted motions that they would not accept less than 20 percent
funding for the Health Education Account.
But taking a firm stand did not necessarily translate into an effective
strategy. Paul Knepprath, who was working for ALA-Sacramento/Emigrant Trails during the
1994 fight, was advising the state-level ALA on media strategies and was urging them to be
more public and confrontational. On March 18 he wrote to Miller and Najera to alert them
that time is running short on our opportunity to generate media on the Health
Education Account. Knepprath continued, Taking the offensive is
critical. To do so, we need to create some waves, and plant the seed in the minds of
conferees and other members that `hey something's going on with that tobacco tax
conference committee.' ¦It may not be comfortable, but we have got to raise a stink if
we want anyone to pay attention. Without the controversy, we don't have much hook and all
the letter-writing will fall on deaf ears (emphasis added). In spite of Knepprath's advice, ALA did not pursue a more
aggressive public stance. Mary Griffin, a contract lobbyist who had been at the state
Health and Welfare Agency during the debates over AB 75 and was paid by Americans for
Nonsmokers' Rights (ANR) to monitor the 1994 process, criticized this approach. When asked
about the failure to stop the diversions in AB 816, she replied, Dragging
their briefcases through the Capitol building does not constitute lobbying. Sitting in a
legislator's office saying, `Well, we really want this and blah, blah, blah,' it doesn't
do it. Let me tell you, it doesn't do it. You need to lobby. That means using every
resource at your command. It means getting your folks to give. Don't put out a letter and
think your alert is going to go drum up the word. It doesn't work that way. 
As the process proceeded, the health groups began to vigorously object
to CHDP and the other diversions from the Health Education Account. They were, however,
hampered by their previous agreements to divert funds out of Health Education and into
medical services. When asked about the CHDP compromise, Cathrine Castoreno, a lobbyist
with the University of California, made the distinction between the CHDP compromise and
other compromises that are typically done in the legislative arena:
Precedent is a powerful thing. ¦There are some cases where you
compromise on stuff that you care about and it presents no tremendous risks. But they
weren't just compromising the program, they were compromising the integrity of that
statute. And once you agree to disregard the law, you're sucked in because there's no one
who has greater disregard for the law than the legislators. And it's impossible for you
with any credibility to go back and say, Well, I agreed to break the law last
year, but I don't want to do it this year. 
Isenberg was perceived by many parties to have been more hostile to the
Health Education and Research Accounts in 1994 than in prior years. In a 1997 interview,
Isenberg said that what really irritated him in 1994 was that representatives of the
voluntary health agencies tried to argue that they had never supported the diversions into
The part that I found most objectionable from the non-profits is they
¦said, We never agreed to the first allocation, we didn't agree to the second
allocation. You did it over our dead bodies. That is not true ¦and one of the
problems with that posture, which has served them politically in many ways, ¦is that
¦this was not a case of a fifteen-year-old memory where nobody was left. This is where
all the active participants were still there, and goddamn it, they were so angry, so
bitter, so disappointed that they were misrepresenting the fact they signed off on the
first deal. Well, in retrospect, they shouldn't have signed off on the first deal,
although they would have been ignored had they not participated. There would have been
other undesirable consequences that flowed from that. ¦If everybody knew then what
they know now, that fight would have been exactly that issue.
The voter mandate of specific allocations to the Health Education and
Research Accounts was no longer an issue. It was all about who was willing to deal.
Other key players also had some opinions about why Isenberg seemed so
much more hostile in 1994. ANR's Robin Hobart observed,
He historically ¦had been very supportive of the health education
efforts and then just totally turned about and was furious. And I really believe it's
because he thought he had made a deal with Tony [Najera], that they were going to make
that appropriation that way. Tony probably thought it was okay because it was going to be
short term until the budget got better. And then when it turned out Tony couldn't really
speak for the rest of the now many many players out in the field who were saying,
This is not acceptable, I think Isenberg was just furious. He felt a
deal had been made and now it wasn't being delivered on.
Peter Schilla, the lobbyist for the Western Center for Law and Poverty
whose priority was finding money to pay for health services for poor people, continued to
be an extremely influential lobbyist working against the tobacco control programs.
Although his organization did not give campaign contributions, Isenberg listened to
Schilla. According to John Miller,
Somebody asked [Isenberg] in all the conflicting claims of the
different sides on this dispute who did he believe. He said, Peter Schilla is
who I believe. And Peter was a very credible figure, very highly regarded
around here in the health care field. And CMA moves huge muscle on these things and I
think I, in [AB] 816, underestimated who was driving this thing. I believed it was the
tobacco industry with the medical providers along for the ride. And I think it was just
the opposite now. But while the CMA has huge weight with certain members, Peter's
influence was greater. CMA couldn't have moved Phil, but Peter could. ¦Most
politicians understand that when the industry comes to them and asks them to do something,
that it's in the interest of that industry. But when the Western Center, good
guy/consumers'/poor peoples' defenders, comes and says this is the right thing to do, they
tend to do it.
In the face of a hostile Isenberg and concerted and talented
opponents, tobacco control advocates had a difficult authorization fight ahead. One of
Schilla's sources of power was his ability to both raise and solve problems, based in part
on his in-depth knowledge of health programs and budgets. The voluntaries' lobbying staffs
never developed the same level of expertise on these important technical details.
Isenberg was correct in pointing out that the voluntary health agencies
had acquiesced in the previous diversions of Health Education Account money into medical
services, including CHDP. They were now trying to change course five years into the
program, which meant that they needed to account for the shift. A May 9 memo from the ALA
Government Relations Office explained the change in ALA's stance: CHDP's costs
have grown so large that they now jeopardize the very existence of the Health Education
Program. We can now support CHDP only by sacrificing the anti-tobacco education effort.
Straight line projections indicate that the Health Education Program would be ineffectual
in two years and disappear entirely in four years if it is forced to sustain CHDP. We
simply have no choice but to insist that the Medical Services appropriation support CHDP
”not Health Education.  ACS's Don Beerline echoed
this philosophy when he was asked in 1996 why the voluntary health agencies decided to
refuse to accept diversions in AB 816: We said that this is destroying the
program at this point. In the previous diversions, the money did go to indigent care,
that's consistently where it went. But it was such a smaller percentage,
we felt that the programs could be carried out. But in '94-'95 that was obviously the
point where we felt that the programs were becoming ineffective. So that's the reason that
we decided to go along with drawing the line in the sand. 
But the tough stance in 1994 was about more than just the size of the
diversions from anti-tobacco programs to medical services. One of the reasons why the
Coalition came down so hard against the diversions in 1994 was that for the first time
they acknowledged how little was being done for tobacco use prevention within CHDP. When
asked about the decision to try to halt the diversions, TEOC chair Carolyn Martin
explained, The TEOC had worked very diligently to try and get information on
what was going on in CHDP and, believe me, it was not easy. Dr. [Lester] Breslow
especially and I were down there pounding on their door and eventually we figured out
there was nothing to give us because they weren't doing anything. So I think that made a
huge difference, plus the extent of the diversion. Suddenly we're talking about huge
percentages and big drops in programs. 
Martin was supported in several quarters on CHDP's lack of effectiveness
as an anti-smoking program. Bruce Pomer, executive director of the Health Officers
Association of California, wrote to Isenberg on June 21, 1994, protesting the planned
diversions. He specifically criticized the latest effort to put Health Education Account
money into CHDP:
Our concern is the deceptive nature of the proposal. The current
health provider protocols ($150 million in CHDP) have never had their effectiveness
assessed. The last assessment of medical anti-tobacco protocols found no demonstrable
effect what-so-ever from physician provided anti-tobacco advice. We find it ironic that
the medical industry now proposes expanding physician assisted anti-tobacco education,
which has been found to be largely ineffective. Likewise, it should give one pause that
these amendments are supported exclusively by the medical industry and that not a single
health education organization considers the suggestion to have any merit.
The California Tobacco Survey, the large survey of tobacco use in
California conducted by John Pierce of the University of California at San Diego for DHS,
failed to demonstrate any impact on smoking by CHDP. In
contrast, the survey found large effects from much smaller programs, such as the media
campaign and the creation of smoke-free workplaces.
The Hit List
The passage of Proposition 99 and the infusion of millions of dollars
into anti-tobacco education gave public health advocates in California the means to embark
on a comprehensive public health program that
was far more aggressive than previous anti-tobacco campaigns. Instead of running
cessation classes that emphasized the health effects of tobacco use, DHS and the county
LLAs funded innovative programs that battled the tobacco industry in the arenas where it
pushed tobacco use. For example, since the industry targeted auto racing, DHS funded a
race car to carry the anti-tobacco message to the racetrack. This program disrupted
tobacco industry use of auto racing as a promotional medium and led patrons to demand
smoke-free areas at racetracks. A grant to the Kirkwood Ski Foundation was used to counter
tobacco sponsorship of and advertising at ski events over a period of two and a half
years. The project hosted athletic magnet events that included both competitions and
tobacco-free presentations and ultimately displaced tobacco sponsorship. Another program
sought to reach poor women by sponsoring smoke-free baby showers. According to Carol
Russell, who oversaw these programs for TCS, We're going where the companies
are and they hate us for it.  And the program was showing
results. Tobacco use in California declined faster than it did in the rest of nation and
at a rate three times faster than it had in California prior to Proposition 99.
The tobacco industry peppered the program with public records act
requests to collect detailed information on every aspect of Proposition 99, then used this
information to prepare a hit list of unconventional Proposition 99
programs that distorted and ridiculed these programs.
Californians for Smokers' Rights (CSR), an organization fostered by RJ Reynolds and headed
by Bob Merrell, objected to the programs as frivolous. He also accused the state of
building and operating a statewide political organization that
illegally spent tax dollars to lobby. The CMA distributed a
similar list to the Legislature and journalists. And the
promoters of the hit list were successful in getting their message out. Conservative San
Francisco Chronicle columnist Deborah Sanders echoed the list's message with this
jibe: Pretend for a minute that you are a legislator ”just for a minute,
I'll try not to make this too painful. You are given a choice. You can spend $175,000 on
prenatal care, or you can spend $175,000 on a `Ski Tobacco-Free' weekend at Kirkwood
Meadows in Tahoe.  A highly innovative,
two-and-a-half-year program was, with the stroke of a pen, reduced to a boondoggle
weekend. Another list made fun of some projects funded by the Research Account, such as a
study of smoking and facial wrinkling in women. These lists became major tools for the
tobacco industry and its allies in the 1994 reauthorization fight.
A similar hit list turned up in Massachusetts in 1992 and Arizona in
1994, where the tobacco industry was fighting initiatives modeled on Proposition 99.[31-35]
The ANR-SAYNO Lawsuit
Two players entered the debate over the future of Proposition 99 with
the explicit goal of forcing the debate out of the Legislature and back into the public
arena and the courts: ANR and the new organization Just Say No to Tobacco Dough (SAYNO).
ANR was increasingly critical of the approach that the voluntary health
agencies were taking in Sacramento, which ANR viewed as gutless. ANR director Julia Carol
described the voluntaries' AB 816 reauthorization effort this way:
Nobody was willing to fight. They're all still asking nicely.
¦the CMA was still eagerly grabbing the money and none of the voluntaries were willing to
publicly slap their hands about it or to use any sort of clout. You know, in advocacy you
have two tools. You have a carrot and you have a stick. The really good advocates figure
out when to use which and how much, and whether you use both. What the voluntaries were
using mostly was the carrot. They said they were doing an aggressive fight, but they
didn't really know what that meant. ¦I think it means [to them] that every now and
then they write a sort of tough letter that they don't publicize in any way. And that they
speak up kind of boldly behind the scenes in closed-door sessions.
If ANR was to get involved, it would be outside the Legislature's back
Attorney A. Lee Sanders, who had been executive director of California
Common Cause in the 1970s, wanted to do something to discourage politicians from taking
money from the tobacco industry. He had just formed SAYNO to encourage candidates for
office in California to refuse such contributions. When he contacted Stanton Glantz for
information on campaign contributions by the tobacco industry, Glantz expressed
frustration that none of the health groups had sued to restore the integrity of
Proposition 99. When Sanders expressed interest, Glantz put him in touch with ANR, which
joined with Sanders because of the organization's belief in the power of outside
strategies. On February 2, 1994, SAYNO and ANR sent formal
demand letters to the California State Treasurer and Controller, asking for the return of
funds already diverted from the Proposition 99 Health Education Account and threatening to
sue if the money was not returned. ANR invited ALA and the other voluntary health
agencies to join their effort, but they would have nothing of it at the time.
On the morning of March 23, just hours before the Conference Committee
was scheduled to meet to consider AB 816, ANR and SAYNO held a press conference in
Sacramento to announce that they had filed a lawsuit against the governor, the
Legislature, and others seeking restoration of the $165 million that had been diverted
from the Health Education Account into medical services under AB 75 and AB 99 and
attempting to stop future misappropriations. The lawsuit (ANR et al. v. State of
California, Sac. Super. Ct. No. 539577) derailed the plan for a quick passage of AB
Najera and the other lobbyists were furious. They believed that the ANR
lawsuit made the AB 816 fight more difficult because the legislators did not separate ALA
from ANR. Najera tried to distance himself from the suit, and an April 8 ALA press release
announced that the American Lung Association of California is not currently a
party to, or involved in any way with, a lawsuit filed by Americans for Nonsmokers' Rights
(ANR) and Just Say No to Tobacco Dough (SAYNO).  Najera
was still hoping for success at the inside game that ANR was disrupting.
The Conference Committee Hearing
The Conference Committee held its hearing on AB 816 on March 23, but
most of the program advocates observing the process thought that they had little ability
to affect the outcome. Isenberg used the hit list that CSR and the CMA had prepared and
widely circulated (without attribution) to ridicule the program. According to Miller,
those who wished to protect the Health Education Account were not given much of an
opportunity to do so:
It was a fairly perfunctory hearing. ¦I mean, after berating
us, they didn't take any evidence. Then Phil announced the findings that he intended to
move the money out of Health Education into these other programs. And I remember Ken Maddy
[Republican minority leader] was sitting next to him and Ken turned to him and said,
But we all agreed that that was not possible. And Phil said
something to the effect that things are different now. And I
realized that that was the first Maddy knew they were going to go for four-fifths and that
they were going to change it. It was a Democratic initiative, 816 was. ¦Maddy
quickly realized what was going on and got on board in a hurry.
Supporters of the health education programs were surprised to find
that Isenberg was a leader in attacking the programs. Isenberg sought to paint the health
advocates who were seeking to protect Proposition 99 as being just another special
interest now addicted to public funding. Isenberg pointed out to a Los Angeles Times
reporter that many of the same groups who were now fighting the use of Health Education
Account funds for health screening and prenatal care programs had agreed to this use in
the past. According to Isenberg, these groups have taken on the garb of a
religious crusade. 
Martin, responding on behalf of the ALA, wrote that they were
shocked by Isenberg's comments. She pointed
out that Proposition 99 funds distributed to ALA represented less than 4 percent of ALA's
budgets from around the state of California and was only .001 percent of the 1993-1994 tax
revenues. She argued that the appropriation should be made, not only because it was a
voter mandate but also because the program had demonstrated its effectiveness. She pointed
out that criticizing a few programs cannot erase the tremendous total impact
of this complex prevention program. Neither ACS nor AHA took Proposition 99
The University of California had generally been quiet about the Research
Account, reflecting its position as a public body whose board of regents is chaired by the
governor. This stance sometimes frustrated the university's allies. For example, in 1992
AHA officials had written to University of California president Jack Peltason to express
their disappointment at the university's failure to oppose diversion of the Research
Account funds and the hope that the University of California will take a
leading role in opposing such attempts.  Put to the test
again in 1994, the university would again play a cautious role.
UC lobbyist Cathrine Castoreno was frustrated trying to protect the
Research Account in the 1994 hearings. University representatives testified on behalf of
the Research Account ”but without drawing any lines in the sand ”and, in fact,
worked to accommodate Isenberg. According to Castoreno,
I gave explicit testimony about what was most definitely illegal
versus what they might possibly be able to do. This is a point in the proceedings towards
the end of the Conference Committee on 816 where it was clear that there was going to be a
diversion of Research Account monies. The issue was how much and how. We were pretty well
beat up by that time ¦so, in an effort to try and keep the program from being completely
defunded and to keep them from making a move that would be wholly illegal, I worked with
our counsel and Dr. [Cornelius] Hopper [UC's vice president for health affairs] to put
together an analysis of 99 and see, given their goal to divert money, how they might do
it legally. ¦We made it very clear that simply using the money straight out of the
Research Account for health services or any other purpose was obviously and clearly
illegal and challengeable in court. And they thanked us very much for that [laughter].
The university even provided a written proposal on how the Research
Account might legitimately be used for other purposes, such as by explicitly amending the
initiative to put the diverted money into the Unallocated Account instead of directly
funding medical care from the Research Account. The university's official position on
reducing the Research Account from 5 percent to 3 percent was neutral. 
The schools were also subjected to a harsh review by Isenberg, who was
frustrated by the lack of tobacco programming there. By March 1994, after the program had
been running for four years in the schools, the evaluation conducted for the California
Department of Education (CDE) by Southwest Regional Laboratory reported that 41 percent of
youth in grades 7 through 12 reported at least one tobacco lesson and activity event. This finding also meant, of course, that 59 percent did not,
despite the fact that the schools had received a total of $147 million in Proposition 99
funds in the 1993-1994 fiscal year. Through the spring of 1994
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 definition of the model and its components in order to standardize and focus
prevention and reduction efforts targeting school youth. 
The health groups generally agreed with Isenberg's criticisms of the schools.
In 1992 Steve Thompson, who had served as Assembly Speaker Willie
Brown's chief of staff and the head of the Assembly Office of Research, had moved to the
CMA to become its vice president and head lobbyist. This job change put him in a powerful
position from which to continue to advocate for the diversions out of the Health Education
Account into CHDP, a program 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 CMA 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
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 work.
Soon after 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 Research Account
projects. She declined to speculate about who had prepared them and went on to say,
Research by far got the most criticism and they didn't do a good job
at defending themselves ¦and they [the Conference Committee] took those dollars to
balance the budget basically and fund some kids' health programs that I have to say are
very worthy. And that was a tough call, but we did support the overall dynamics because of
the political pressures on getting the budget and with budget deficits and the importance
that we place on some of these indigent programs and when there was some frivolous
research projects going on perhaps. ¦We really didn't support that shift being
made, but in the end we supported the whole deal, felt like it was the best compromise we
were going to get.
Steve Scott of the California Journal reported, however, that
he got the list from the CMA. More important, he saw CMA's support of the diversions as
important to getting them through the Legislature:
The California Medical Association got successively more brazen in its
approach and its willingness to kind of undermine the tenets of the education fund. I
remember in the Conference Committee meetings on [AB] 816, Assemblyman Isenberg started
rolling out the horror stories about the Research Account and how the Research Account was
being used for these ¦ridiculous grants. And I got a list of those ridiculous grants from
the California Medical Association. It was leaked to me through the CMA. ¦You talk
to their lobbyist and she'll deny that they were openly advocating the diversions, that it
was an unfortunate necessity that they had to agree to the diversions to make the
tradeoff. But in truth they were right in there pitching subtly on the whole question of,
and not so subtly, increasingly less subtly, on the issue of the problems with the
Research Account. ¦So a lot of the pushing against the Research and Education
Account, or in favor of more money going to direct medical services, was coming from the
California Medical Association.
In addition to attacking the Research Account, a May 1994 CMA report
justified the use of Health Education Account monies for CHDP due to the
anti-smoking education component of the program.  It
reported that the administration offered education representatives
a compromise ”capping CHDP at $30 million a year ”but were turned
down. The report comments that some questionable `education' projects,
such as anti-tobacco sponsorship of a ski program ($175,000), a race car
($200,000), and a high school rap contest ($175,000), led many
conferees to believe that there was adequate funding of both the Health Education Account
and CHDP. The projects that the CSR and the CMA used as examples of frivolous expenditures
were some of the most innovative programs spawned by Proposition 99.
Physician Roger Kennedy, a CMA member who worked throughout the
nineties to get the CMA to support health education and the chair of Santa Clara County's
tobacco control coalition, believed that the doctors had talked themselves into a bad
When the diversions occurred, I had a number of discussions with some
very highly responsible people that I respect and have known for a long time ¦people who
were in significant roles, people on the board, who were of the view that this money was
so crucial to provide care for the kids in California. ¦But I think they fooled
themselves into thinking that they couldn't take care of kids without this money.
¦This allowed them to overlook the fact that AIM program was, by everybody's analysis,
extremely inefficient and was money that could have been covered in another way; MediCal
would have been a much better way.
Kennedy believed that the CMA should have been willing to call
Wilson's bluff and saw two key reasons for the CMA's unwillingness to spend political
capital on this issue. First, the CMA needed the governor's support on other important
matters and did not want to alienate him on this issue. According to Kennedy,
It was the easier path to go that didn't require pushing Wilson and angering Wilson.
The CMA leadership wanted to work with Wilson on other issues, and they felt that to push
him on this would compromise their ability to work with him. At this point, he really had
his heels just dug in. So they felt he wouldn't move on this or, if they forced him to
move on this, it would harm them in other ways.  Second,
the CMA gives priority to the pocketbook issues of its members. As Kennedy
explained, The CMA has already been in trouble for a number of years in terms
of membership because doctors' incomes are dropping and they don't see the value. So if
the CMA isn't using its political clout to ward off the optometrists and instead is going
along with making sure that the money from Prop 99 goes to fund tobacco education instead
going into doctors' pockets, the CMA is going to look like they're not really supporting
their members.  Thus it was in the CMA's interests to
support the same agenda that the tobacco industry had: further diversions of Proposition
99 anti-tobacco Health Education and Research money into medical services.
Last-Minute Efforts to Stop AB 816
There were some last-minute efforts to attract publicity to the
Proposition 99 reauthorization fight. On June 2 the Coalition had a press conference
featuring Senators Art Torres (D-Los Angeles) and Tom Hayden (D-Santa Monica) and
Assembly Member Delaine Eastin (D-Fremont) to expose the budget `smokescreen'
being used by opponents of the successful community-based anti-tobacco education.  It attracted little coverage. A June 6 Action Alert, issued in both
English and Spanish by the Coalition to Save Proposition 99, tried to generate pressure on
the Legislature. On July 6 Joe Holsinger, a deputy
superintendent at CDE, wrote a letter cosigned by representatives of a variety of
education organizations and school districts to Assembly Speaker Willie Brown and Senate
President pro tem Bill Lockyer, asking for their help in stopping the diversion of funds. ALA issued a press release containing a statement from Spencer
Koerner, the chairman of the board of ALA, 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 by
diverting money earmarked by the voters for education (20% of the revenues of the tobacco
tax) into medical care programs. This in spite of the fact that over 70% of the
Proposition 99 revenue is already being spent on medical care. Organized medicine
represented by the California Medical Association and California Association of Hospitals
& Health Systems, and community clinic providers led by the Western Center on Law
& Poverty has successfully hijacked California's tobacco education funds as well as
the five percent designated for research. [emphasis added]
ALA wrote members of the Legislature urging them to vote against AB
816, warning that with the passage of AB 816, California's popular
anti-tobacco research and education program will die a slow, painful death. 
The governor personally intervened to kill the tobacco research program.
According to Castoreno, she was abruptly ordered to halt the lobbying efforts:
I was busily conveying the university's opposition to the measure along with the
voluntaries. The director [of the university's Sacramento lobbying office], Steve Arditti,
came running into the hallways with a look on his face like somebody vital had died. And
it shot a pain through my heart and he conveyed that the governor had just called the [UC]
president ”Peltason, at the time ”to say that AB 816 was part of the budget
package. It's absolutely important to him, he wanted it and we needed to stop opposing
it.  The CMA wrote legislators supporting the bill and
presenting its passage as a routine extension of the status quo: Except for
the cuts to the research account, which were part of the
overall state budget agreement, the bill distributes Prop 99 funds much the way they
have been apportioned since the inception of Prop 99. 
The Floor Fight
The tobacco and medical interests could control when AB 816 would be
heard in the Legislature. ALA anticipated they would schedule the hearing just before the
summer recess, when Legislators were eager to return home and unlikely to think much about
proposals before them. 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 be tobacco control's best ”indeed only
”chance against the allied tobacco and medical interests.
Isenberg took up AB 816 in the Assembly on the day before the summer
break, describing the bill as a routine fiscal bill necessary to balance 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 Mike Thompson (D-Santa
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 was 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 dramatic legislative conflict.
The three voluntary health agencies, public health officers, public
schools, and the independent universities had stunned the multi-billion-dollar tobacco and
medical industries in a remarkable upset. Watching the defeat on television in Senator
Diane Watson's office, the dozen or so Proposition 99 proponents could not believe their
own success. Minutes after the defeat of the bill, the Democrats withdrew from the floor
for a closed caucus. Watson returned to her office 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
AB 816 immediate reconsideration and another vote. More than fifty
lobbyists spread through the Capitol building with promises or threats or demands of
support from the senators. On the floor, a passionate debate was underway, pitching the
interests of the ill and enfeebled against the obligation of the Legislature to honor the
will of the voters.
In a remarkable political event, Governor Wilson left his office (which
is also located in the Capitol building) and met with Senator Marion Bergeson (R-Newport
Beach), a conscientious Mormon and the only Republican determined to resist the
tobacco-medical coalition. This incident was the first and only time during his tenure
that Governor Pete Wilson left his office to influence a vote on the floor of the Senate.
Senate Republican minority leader Ken Maddy demanded that every member of the Republican
caucus support AB 816 and refused to permit any Republican to exit the caucus without a
commitment. The speaker of the Assembly, Willie Brown, appeared on the Senate floor with
Phil Isenberg and pressured senators to vote for AB 816. Bill Lockyer, a Democrat, moved
from desk to desk demanding Democratic votes for AB 816. For three hours, the contest
continued as other business was carried out on the floor. Slowly, gradually, inevitably,
the governor, legislative leadership, and county and medical lobbyists moved vote after
vote. A core group including Senators Art Torres (D-Los Angeles), Diane Watson (D-Los
Angeles), Tom Hayden (D-Santa Monica), and Nicholas Petris (D-Oakland) refused to
compromise. With only one necessary vote remaining, Lockyer and Maddy threatened to fly in
Senator Bill Craven (R-San Diego), who was seriously ill with lung disease, to conclude
the contest, and a last holdout conceded, giving AB 816 the necessary four-fifths vote.
The Final Bill
The governor signed the bill, which contained cuts in anti-tobacco
health education and research that were approximately what he had originally proposed
(figure 15). Over the two fiscal years 1994-1995 and 1995-1996, AB 816 appropriated only
$94 million for anti-tobacco education (as opposed to the $157 million required by the
initiative) and $8 million for research (as opposed to the $44 million required by the
initiative, plus the $21 million left unexpended from the previous year).
AB 816 brought the total amount of diversions from the Health Education and Research
Accounts to medical services to $301 million since Proposition 99 had passed, or about 34
percent of the total allocated by the voters to anti-tobacco education and research.
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.
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 816. 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
diversion of [Health Education] funds is regrettable, if seemingly unavoidable, but the
gains against cigarette smoking ¦need not be lost. The best strategy, in our opinion, is
passage of AB 13, which would make smoking illegal in most workplaces throughout the
AB 816 contained three significant program changes. First, more controls
were put on the schools. Schools would receive money based on Average Daily Attendance
only for grades 4-8, while high schools would have to apply for competitive grants. In
addition, evaluation of their programs would be conducted by evaluators in the DHS Tobacco
Control Section (TCS), and the deadline for becoming tobacco free was moved from 1996 to
1995. Miller was less critical of Isenberg's stance on the schools than of his stance on
the health departments and the Research Account. According to Miller, The
kinds of changes which had been proposed, indeed what Phil proposed for the schools, I
think were long overdue and appropriate. I would still have an in-school program ¦[and]
restrict it to those schools which express an interest. 
Second, public policy research was added as a priority area for the Research Account
funding because it was an area of compelling interest to the
Legislature. Third, the Tobacco Education Oversight Committee had oversight of the
Research programs added to its mission and was renamed the Tobacco Education and Research
Oversight Committee (TEROC). These changes were all consistent with positions the health
groups had been advocating.
While the Health Education and Research Accounts took heavy hits from
the Legislature, the governor's proposal to redirect some of the funds from the Public
Resources Account was dropped, so this account again got more than its required minimum of
5 percent of the Proposition 99 dollars. According to Miller, the Legislature
gave about ten minutes to thinking about ripping off the mountain lion money and
walked away from that because the environmentalists will kick
their ass.  The CMA's lobbyist, Elizabeth McNeil, had
a similar response: I think ¦fighting the environmentalists was a whole other
realm, and a whole other fight, and I think that a lot of people made the assumption that
that was a fight that was not even winnable. And that here was an arena where you had all
health care organizations, who you could hope could help prioritize health care interests.
 There were important lessons here for the tobacco
control advocates. The Public Resources Account was able to resist raids on its funds, and
its advocates apparently had to do very little to protect it because everyone knew they
were willing to kick your ass.
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
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.
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.
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