tag:theconversation.com,2011:/us/topics/mike-dewine-47990/articlesMike DeWine – The Conversation2020-04-06T19:41:47Ztag:theconversation.com,2011:article/1355992020-04-06T19:41:47Z2020-04-06T19:41:47ZDemocratic governors are quicker in responding to the coronavirus than Republicans<figure><img src="https://images.theconversation.com/files/325507/original/file-20200405-74198-1gq03dw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Florida Republican Gov. Ron DeSantis, who did not issue a stay-at-home order for his state until April 1, 2020.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/florida-gov-ron-desantis-attends-a-news-conference-in-the-news-photo/1215749962?adppopup=true">Joe Raedle/Getty Images</a></span></figcaption></figure><p>While the coronavirus pandemic is a national and international concern, state and local officials find themselves on the front lines of the public health battle. </p>
<p>Governors, in particular, have been in the spotlight in recent weeks. New York’s <a href="https://www.washingtonpost.com/health/2020/03/24/coronavirus-strategy-economy-debate/">Andrew Cuomo</a> has been praised by news outlets for his leadership at the epicenter of the U.S. outbreak, while <a href="https://www.cnn.com/2020/04/02/politics/brian-kemp-ron-desantis-donald-trump-coronavirus/index.html">others</a> have been criticized for slow responses.</p>
<p>A clear partisan gap has emerged in how quickly governors have declared emergencies and issue stay-at-home orders. Democratic governors have issued orders three to four days sooner than Republican governors, on average.</p>
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<h2>Timing pivotal</h2>
<p>We study state governments, including their interactions with the federal government. Our previous work on <a href="http://www.birkdalepublishers.com/index.html#politics-intergovernmental-relations">federalism</a> and <a href="https://academic.oup.com/publius/article/49/3/540/5490316">state politics</a> has identified partisan conflict between national, state and <a href="https://journals.sagepub.com/doi/full/10.1177/1087724X19834563">local government</a>. Federalism is the distribution of power and authority across levels of government, and partisan conflict involves disagreements and competition between political parties. Partisan conflict over policy is nothing new. </p>
<p>But the coronavirus has put some governors in an ideologically compromising position. Republicans, who traditionally advocated for states’ rights, now find themselves deferring to the federal government. </p>
<p>Meanwhile, Democrats are <a href="https://www.nbcnews.com/news/us-news/some-u-s-governors-have-stepped-during-coronavirus-others-not-n1170706">leading the nation</a> on pandemic responses and <a href="https://www.politico.com/news/magazine/2020/04/01/coronavirus-state-governors-best-worst-covid-19-159945">reaping the political rewards</a>. They are also pushing for more federal coordination efforts, especially in <a href="https://www.nytimes.com/2020/03/31/us/governors-trump-coronavirus.html">obtaining high-demand medical supplies</a>.</p>
<p>Although the same policies are being used across the country, the timing of decisions is likely to prove pivotal in mitigating how hard COVID-19 hits communities, as experiences in <a href="https://www.cnn.com/2020/03/16/opinions/south-korea-italy-coronavirus-survivability-sepkowitz/index.html">South Korea and Italy</a> suggest. <a href="https://www.brookings.edu/2020/04/02/the-early-days-of-a-global-pandemic-a-timeline-of-covid-19-spread-and-government-interventions/">Earlier emergency declarations and stay-at-home orders increase the chances</a> of a better outcome for the health of people in the state. </p>
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<span class="caption">President Trump’s early discounting of the danger of the coronavirus may have stalled action by Republican governors.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-donald-j-trump-with-vice-president-mike-pence-and-news-photo/1206910692?adppopup=true">Jabin Botsford/The Washington Post via Getty Images</a></span>
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<h2>A trend – with exceptions</h2>
<p>Based on a review of emergency declarations, we found that the median date for instituting a state of emergency for Democratic governors was March 10, and for Republican governors, March 13. </p>
<p>Although stay-at-home orders have only been <a href="https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html">issued in 41 states</a> as of April 4, a similar trend is emerging there. </p>
<p>So far, all 24 Democratic governors have issued such an order with a median date of March 24. On the other hand, only 17 of 26 Republican governors have, and of those the median date is March 30. </p>
<p><a href="https://finance.yahoo.com/news/coronavirus-hitting-democrat-communities-more-than-republican-ones-143813828.html">Some argue that states led by Republicans were hit by COVID-19 later</a> or not as hard as states led by Democrats. Yet based on data from the <a href="https://docs.google.com/spreadsheets/u/2/d/e/2PACX-1vRwAqp96T9sYYq2-i7Tj0pvTf6XVHjDSMIKBdZHXiCGGdNC0ypEU9NbngS8mxea55JuCFuua1MUeOj5/pubhtml">COVID Tracking Project</a>, there was little difference in the number of cases in each state when governors announced these orders. </p>
<p>Most governors used boilerplate language citing public health experts in their announcements. But some evidence shows that Republican governors were responding to leadership from President Donald Trump, who largely <a href="https://www.nytimes.com/2020/03/15/opinion/trump-coronavirus.html">downplayed</a> the severity of the pandemic for weeks, which discouraged governors from taking actions that contradicted the leader of their party. <a href="https://www.nytimes.com/2020/03/15/opinion/trump-coronavirus.html">For instance</a>, on March 7, he said “I’m not concerned at all,” and on March 10 he claimed “it will go away. Just stay calm.” </p>
<p>Additionally, nearly half of Republican governors declared emergencies on the same day – March 13 – that the president declared a national emergency, and a few have explicitly cited Trump as a reason behind their decisions. </p>
<p>Georgia Republican Gov. <a href="https://www.gainesvilletimes.com/news/health-care/gov-kemp-declares-georgia-public-health-emergency-effective-march-14/">Brian Kemp</a> said, “Based on President Trump’s emergency declaration, I will declare a public health emergency.” </p>
<p>Florida’s Ron DeSantis, a Republican who had <a href="https://khn.org/news/under-pressure-florida-governor-finally-orders-residents-to-stay-home/">resisted issuing a stay-at-home order</a> despite mounting pressure from public health officials and the media, cited the shift in Trump’s <a href="https://www.cnn.com/2020/04/01/politics/desantis-florida-coronavirus/index.html">tone and demeanor</a> as the signal it was time to issue a stay-at-home order to contain the pandemic in his state. </p>
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<span class="caption">Michigan Democratic Gov. Gretchen Whitmer declared a state of emergency on March 10.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Virus-Outbreak-Michigan/e295ec51822b4852b148f2f4fd4824b7/15/0">AP Photo/David Eggert</a></span>
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<p>Other Republican governors acted earlier. One factor in those cases is Trump’s approval ratings: <a href="https://morningconsult.com/tracking-trump-2/">Republicans in states where the president is unpopular moved more quickly</a>.</p>
<p>Trump’s net approval – the portion of survey respondents approving of Trump’s job performance minus the portion disapproving –
in states with Republican governors that declared emergencies before March 13 averages +1; in Republican states declaring emergencies on or after March 13, it averages +8. For Democratic states, Trump’s net approval averages -9 before March 13, and -10 on or after March 13. Clearly, Trump’s net approval is important to the Republican governors.</p>
<p>Ohio’s <a href="https://www.bbc.com/news/world-us-canada-52113186">Mike DeWine</a> was the first governor to call for a statewide closure of schools on March 12, and Maryland’s <a href="https://www.nytimes.com/2020/04/03/us/politics/maryland-coronavirus.html">Larry Hogan</a>, who has been vocal in criticizing the White House’s leadership, was the first Republican governor to declare an emergency, on March 5. Trump’s net approval in Ohio is 0 and in Maryland, -24.</p>
<h2>Partisan conflict evident</h2>
<p>In contrast, Democratic governors have advocated for more aggressive response efforts at both state and federal levels. </p>
<p>In addition to Andrew Cuomo, who has become a key figure in recent weeks, Michigan’s <a href="https://www.wilx.com/content/news/President-Trump-and-Gov-Whitmer-569155591.html'">Gretchen Whitmer</a> has traded jabs with the president. New Jersey’s <a href="https://www.cnn.com/2020/04/02/politics/new-jersey-governor-coronavirus-postmortem-cnntv/index.html">Phil Murphy</a> has called for a “postmortem” on the federal response to understand why it has gone so wrong. </p>
<p>While conflict between political parties is usually most visible in Congress, the coronavirus has put partisan conflict between the president and governors on full display as federal and state governments try to contain this pandemic.</p>
<p>[<em>Get facts about coronavirus and the latest research.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=upper-coronavirus-facts">Sign up for The Conversation’s newsletter.</a>]</p><img src="https://counter.theconversation.com/content/135599/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>When US governors declared a state of emergency is likely pivotal in mitigating how hard COVID-19 hits their states. And it turns out that one party’s governors made those decisions more quickly.Luke Fowler, Associate Professor and MPA Director, Boise State UniversityJaclyn Kettler, Assistant Professor of Political Science, Boise State UniversityStephanie Witt, Professor of Public Policy, Administration and Political Science, Boise State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/963252018-05-09T03:31:32Z2018-05-09T03:31:32ZOhio voters make conservative choices in governor’s primary – picking DeWine, Cordray<figure><img src="https://images.theconversation.com/files/218214/original/file-20180509-34006-1c7y3ha.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">It's DeWine versus Cordray in the Ohio governor's race.</span> <span class="attribution"><span class="source">AP Photo/John Minchillo</span></span></figcaption></figure><p>Ohio politics is shifting to the right.</p>
<p>As a <a href="https://scholar.google.com/citations?view_op=list_works&hl=en&user=5GMIqMwAAAAJ">political scientist</a> at Ohio State University, that’s my takeaway from seeing Mike DeWine and Richard Cordray win overwhelming victories to secure their parties’ nominations in the primary for governor on <a href="https://www.cnn.com/election/2018/primaries/ohio/all/democratic">May 8</a>.</p>
<p>It could be the sign of things to come in Ohio. </p>
<h2>Red</h2>
<p>Republican candidates spent most of the primary rejecting their party’s incumbent. Term-limited John Kasich is <a href="https://www.realclearpolitics.com/epolls/approval_rating/governor/oh/governor_kasich_job_approval-3503.html">popular statewide</a>, but his approval among Republicans is a <a href="http://www.surveyusa.com/client/PollReport.aspx?g=b21c66fb-ba89-4b8c-9171-30457f6997d2">fairly tepid 55 percent</a>. </p>
<p>Kasich’s attempts to make the national Republican Party more moderate during a lackluster presidential run in 2016 may have endeared him to independent voters, but it’s clearly cost him support on the right in his home state. Republican candidates Attorney General DeWine and Lt. Gov. Mary Taylor spent most of the race fighting over <a href="https://www.cincinnati.com/story/news/politics/elections/2018/05/05/ohio-primary-election-2018-governor/569220002/">who could be the most conservative</a>. At one point, a DeWine allied SuperPAC targeted Taylor with a mailer suggesting Ohio <a href="https://www.buzzfeed.com/henrygomez/supporting-john-kasich-has-become-an-attack-line-in-ohios?utm_term=.cu2ygpeVQ#.bjEYGlmwL">“can’t afford a third Kasich term”</a> – a stunning attack on a leader of his own party. Both candidates promised to rescind Kasich’s acceptance of the Medicaid expansion. </p>
<p>In spite of her attempts at repudiating him, Taylor’s association with Kasich, who endorsed her, led Republican primary voters to DeWine, who was perceived as a purer conservative. DeWine cruised to victory with a 19-point margin. </p>
<h2>Blue</h2>
<p>By selecting Richard Cordray, the former Ohio attorney general and former director of the embattled Consumer Financial Protection Bureau, Democratic voters made a moderate choice. Cordray is a mainstream Democrat who has pushed moderately progressive proposals while emphasizing his ties to <a href="https://youtu.be/_qTPrmd74RE">former President Barack Obama</a> and the need to fight the state’s opioid <a href="https://secure.cordrayforohio.com/page/content/on-the-issues/">crisis</a>. </p>
<p>Cordray will likely have more appeal to moderate voters than second-place finisher Dennis Kucinich, whose more radical <a href="https://kucinich.com/the-issues/">platform</a> rested on creating a statewide single-payer healthcare system. Though the former mayor of Cleveland has been a player in Ohio politics for decades, Kucinich may simply be too liberal for a statewide election in 2018 Ohio. Cordray won over 60 percent of the vote.</p>
<p>Both parties made choices that may reflect the future of Ohio politics. While it has long been considered a swing state, <a href="https://theconversation.com/voters-in-texas-north-carolina-ohio-and-florida-are-changing-the-swing-state-map-67920">Ohio’s demographics have been trending rightward</a>. President Trump won the state by nine points in 2016. Democrats may hope that result is an aberration, but Ohio’s primary results suggest the state could see more centrist Democrats running against hard-line conservative Republicans.</p><img src="https://counter.theconversation.com/content/96325/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nathaniel Swigger does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In this Speed Read, a political scientist from Ohio State University ponders an ideological shift in the May 8 gubernatorial primary.Nathaniel Swigger, Associate Professor of Political Science, The Ohio State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/894262018-01-05T03:04:00Z2018-01-05T03:04:00ZWhen charities let telemarketers gouge donors<figure><img src="https://images.theconversation.com/files/200864/original/file-20180104-26157-1q0sb8o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Some telemarketers retain nearly all of the charitable dollars they solicit.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/closeup-businessman-holding-telephone-receiver-about-269439785">Gajus/Shutterstock.com</a></span></figcaption></figure><p><a href="https://content.govdelivery.com/accounts/OHAG/bulletins/1c7fd02">Ohio Attorney General Mike DeWine</a> recently called Ohio Cops for Kids a “purported charity” when he sued the group for allegedly defrauding donors in his state.</p>
<p>The complaint claims that the <a href="http://www.cleveland.com/metro/index.ssf/2017/11/cops_for_kids_a_sham_that_gave.html">group spent merely 2 percent</a> of the money raised on its behalf on efforts related to its official mission of helping children whose families were victims of crime. Telcom Enterprises, a for-profit fundraiser the charity hired, kept 79 percent of those funds, and the nonprofit spent the rest on its salaries and overhead, according to DeWine’s lawsuit.</p>
<p>This alleged racket may sound like an isolated case of extreme malfeasance. But the Ohio Cops for Kids case is only the latest example of for-profit telemarketing companies <a href="https://www.publicintegrity.org/2017/12/13/21395/charities-employ-controversial-telemarketers-tug-heartstrings-and-loosen-purse">accused of turning</a> donations intended to support good causes into private gold mines.</p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/bxHDuKoE7WE?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Cleveland’s News 5 reported on an Ohio-based charity claiming to work ‘hand in hand’ with law enforcement agencies across that state but is being accused of bilking over $4.2 million from thousands of donors.</span></figcaption>
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<h2>Telemarketing trouble</h2>
<p>While researching the finances of charities and the for-profit fundraisers they hire, I have noticed two related problems with the practice of farming out fundraising.</p>
<p>One is legal: <a href="https://www.urban.org/sites/default/files/publication/84161/2000925-State-Regulation-and-Enforcement-in-the-Charitable-Sector.pdf">State</a> and <a href="https://theconversation.com/the-irs-targeting-scandal-was-fake-but-irs-budget-woes-are-a-real-problem-85310">federal authorities</a> have a limited ability to regulate charities and their fundraisers.</p>
<p>The other is cultural: Charities fight new regulations, <a href="https://www.philanthropy.com/article/Opinion-Independent-Sector/228239">arguing that they can police themselves</a>. Yet, they are reluctant to call out their peers who abuse the <a href="https://www.philanthropy.com/article/The-Overhead-Debate-Charities/154087">public trust</a>.</p>
<p>Paying for-profit companies to fundraise for charities isn’t inherently problematic. Because outsourcing gives nonprofits room to focus on work donors really care about, it can be more efficient than hiring in-house staff. This is especially true when there are <a href="http://www.sciencedirect.com/science/article/pii/S0167268117300598?via%3Dihub">high upfront costs</a> for fundraising campaigns.</p>
<p>But more often than not, charities that rely on contractors for telemarketing campaigns wind up raising less money for the charity’s operations than they do for the telemarketers, especially when they <a href="http://journals.sagepub.com/doi/abs/10.1177/0899764098273002">pay fundraisers on a commission</a> basis.</p>
<p>New York State Attorney General <a href="https://www.charitiesnys.com/pdfs/pennies-for-charity-2017.pdf">Eric Schneiderman’s office</a> examines regional and national professional fundraising campaigns. In 2017, it found that telemarketing companies pocketed more funds than they passed along to the charities they worked for more than two-thirds of the time.</p>
<p>More shockingly, 18 percent of the time, telemarketers <a href="https://www.charitiesnys.com/pdfs/pennies-for-charity-2017.pdf">charged charities more in fees</a> than they ended up collecting in donations, leaving the nonprofits worse off than had they not sought donations in the first place.</p>
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<h2>Call me never</h2>
<p>Whatever their track record, telemarketers have become increasingly reliant on charitable fundraising, if only because other options are being precluded.</p>
<p>The national <a href="https://www.donotcall.gov">do-not-call registry</a>, adopted in 1991, gives Americans the option of blocking most telemarketer calls. But this does not extend to solicitations <a href="https://www.ftc.gov/tips-advice/business-center/guidance/qa-telemarketers-sellers-about-dnc-provisions-tsr#exemptorgs">on behalf of charities</a>. That loophole means that <a href="https://www.lexology.com/library/detail.aspx?g=b5f41129-078d-4cff-821f-ff73f1b1c0d8">for-profit companies</a> may legally dial the more than <a href="https://www.ftc.gov/news-events/press-releases/2017/12/ftc-releases-fy-2017-national-do-not-call-registry-data-book-dnc">229 million</a> registered numbers with charity-related pitches. </p>
<p>Charities must maintain and <a href="https://www.charitynavigator.org/index.cfm?bay=content.view&cpid=224">honor their own</a> do-not-call lists, however.</p>
<p>Perhaps unsurprisingly, as the number of people who have registered their “do-not-call” preferences has risen, <a href="http://countingoncharity.blogspot.com/2014/02/the-do-not-call-list-and-charity.html">so too has solicitation</a> by telemarketers-for-hire on behalf of charities.</p>
<p>What’s more, with telemarketers <a href="https://www.revealnews.org/article/one-donation-to-charity-telemarketer-spawns-more-solicitation-calls/">amassing their own donor lists</a> and charities <a href="https://www.nytimes.com/2015/12/02/your-money/before-giving-check-out-charities-and-their-policies-on-privacy.html">selling data about their donors</a>, repeat offenders are assured. Once donors give through these fundraising companies, they risk getting other telemarketing appeals for years to come.</p>
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<a href="https://images.theconversation.com/files/200866/original/file-20180104-26151-61etld.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/200866/original/file-20180104-26151-61etld.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/200866/original/file-20180104-26151-61etld.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/200866/original/file-20180104-26151-61etld.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/200866/original/file-20180104-26151-61etld.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/200866/original/file-20180104-26151-61etld.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/200866/original/file-20180104-26151-61etld.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/200866/original/file-20180104-26151-61etld.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Charities and telemarketers working on their behalf are not subject to the do-not-call list.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-vector/no-mobile-phone-206777542">Butterfly Hunter/Shutterstock.com</a></span>
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</figure>
<h2>State investigations</h2>
<p>One typical defense of the profits earned from charitable telemarketing is that paying telemarketers big bucks is worth it if they make obtaining charitable dollars easier in the future. But do they?</p>
<p>After combing through data collected by state attorneys general serving in <a href="https://oag.ca.gov/charities/cfr">California</a>, <a href="http://www.michigan.gov/ag/0,4534,7-359-82916_81983_47203-408953--,00.html">Michigan</a>, <a href="https://www.charitiesnys.com/pdfs/pennies-for-charity-2017.pdf">New York</a> and elsewhere, I have seen <a href="http://countingoncharity.blogspot.com/2013/07/does-charity-telemarketing-pay-in-long.html">little evidence</a> that telemarketing campaigns generate more donations at a lower cost over time.</p>
<p>Meanwhile, many of the charities that hire the most egregious professional fundraisers continue to grow despite <a href="http://www.tampabay.com/news/nation/americas-50-worst-charities-rake-in-nearly-1-billion-for-corporate/2339540">occasional public relations debacles</a>.</p>
<h2>Guardrails</h2>
<p>A natural response to this menace is to pursue <a href="http://unitedwaysuncoast.org/floridas-top-charity/">legal remedies</a>. However, the <a href="https://www.charitynavigator.org/index.cfm/bay/content.view/cpid/351.htm">Supreme Court</a> has ruled that laws capping the share of money telemarketers may pocket violate the charities’ <a href="http://www.chicagotribune.com/news/watchdog/ct-charity-telemarketers-met-20150828-story.html">free speech rights</a>.</p>
<p>Enforcement cases like Ohio’s are rare, partly because they can <a href="http://www.illinoisattorneygeneral.gov/pressroom/2017_11/20171106.html">take years</a> of dogged efforts, as Illinois Attorney General Lisa Madigan’s prosecution of telemarketer Safety Publications and the <a href="http://peoriapublicradio.org/post/rockford-based-vietnow-dissolved-fraudulent-fundraising-activities#stream/0">Rockford, Illinois-based VietNow charity</a> demonstrated. </p>
<p><a href="http://www.nytimes.com/2003/02/02/us/with-a-lawsuit-pending-charities-are-divided-over-disclosure-to-donors.html">Charities have even helped defeat</a> efforts to require telemarketers to tell donors how their gifts are spent.</p>
<p>This leaves the authorities unable to to target abusive telemarketers unless they <a href="http://www.chicagotribune.com/news/watchdog/ct-charity-telemarketers-met-20150828-story.html">intentionally deceive donors</a> about how much money they will retain.</p>
<p>Cash-strapped budgets further <a href="https://www.philanthropy.com/article/187-Million-Fraud-Case-Puts/230567">hinder enforcement efforts by state regulators</a>. </p>
<h2>Follow the money</h2>
<p>Another complication is that charities face few disclosure requirements. One exception is that they must file annual financial reports with the IRS, including the cash their <a href="https://www.jstor.org/stable/30245363?seq=1#page_scan_tab_contents">outsourced fundraisers collect from donors</a> and how much of it their contractors retain.</p>
<p>Done right, this mandate should let donors figure out how much of their money the charities spend on this service. But the data is not reliable.</p>
<p>When <a href="https://www.jstor.org/stable/30245363?seq=1#page_scan_tab_contents">accounting researchers from Boston College and the University of Alabama</a> compared charity IRS filings with the professional fundraising reports their telemarketers filed in several states, they found that <a href="https://www.jstor.org/stable/30245363?seq=1#page_scan_tab_contents">more than 70 percent</a> of the charities failed to accurately report how much they paid professional solicitors.</p>
<p>Even charities that follow proper reporting practices can exploit a <a href="https://www.charitywatch.org/charitywatch-articles/tricks-of-the-charity-trade-donors-unknowingly-pay-to-receive-more-solicitations/125">little-known rule</a> to treat some payments to telemarketers as “<a href="http://fasb.org/jsp/FASB/Document_C/DocumentPage?cid=1176156442680&acceptedDisclaimer=true">programming costs</a>” when their pitches help satisfy public education goals.</p>
<p>This makes it difficult for even the most diligent donor to know precisely how much money telemarketers retain, unless they hear about it from <a href="https://www.publicintegrity.org/2017/12/13/21395/charities-employ-controversial-telemarketers-tug-heartstrings-and-loosen-purse">the media</a> or watchdogs like <a href="https://www.charitywatch.org/charitywatch-hot-topic/donor-alert-39-aclj-39-is-two-charities-dominated-by-one-family/74">Charity Watch</a>.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"941656292736847872"}"></div></p>
<h2>Donor beware</h2>
<p>Absent aggressive enforcement, the charitable sector has <a href="https://www.philanthropy.com/article/187-Million-Fraud-Case-Puts/230567">struggled to regulate itself</a>.</p>
<p>The <a href="http://countingoncharity.blogspot.com/2013/05/the-big-three-of-professional.html#more">biggest offenders</a> often work on behalf of nonprofits doing <a href="https://www.publicintegrity.org/2017/12/13/21395/charities-employ-controversial-telemarketers-tug-heartstrings-and-loosen-purse">heartstring-pulling</a> work like <a href="https://theconversation.com/want-to-support-veterans-4-tips-for-finding-good-charities-77921">serving veterans</a> and supporting <a href="https://www.theatlantic.com/business/archive/2015/05/are-you-donating-to-charity-or-lining-someones-pockets/393725/">people with cancer</a>. </p>
<p>The <a href="http://www.cleveland.com/metro/index.ssf/2017/11/cops_for_kids_a_sham_that_gave.html">Ohio Cops for Kids</a> case shows the potential for aggressive action by state authorities. However, the fact that the offenders in extreme cases may profiteer for years without suffering consequences also highlights a <a href="https://nonprofitquarterly.org/2013/11/14/six-problems-third-in-a-series-on-the-wapo-nonprofit-asset-diversion-database/">festering accountability crisis</a>.</p><img src="https://counter.theconversation.com/content/89426/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brian Mittendorf does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>For-profit fundraisers often keep more of the money they collect on behalf of nonprofits than they should but Ohio’s attorney general is accusing a charity of serving as an accomplice to a crime.Brian Mittendorf, Fisher College of Business Distinguished Professor and Chair, Department of Accounting & Management Information Systems (MIS), The Ohio State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/793222017-07-04T23:01:51Z2017-07-04T23:01:51ZA look inside Ohio’s lawsuit against opioid manufacturers<p>Ohio made headlines when it became the second state to <a href="https://www.nytimes.com/2017/05/31/us/ohio-sues-pharmaceutical-drug-opioid-epidemic-mike-dewine.html?_r=0">file a lawsuit against opioid manufacturers</a> on May 31.</p>
<p><a href="http://www.npr.org/sections/thetwo-way/2017/05/31/530929307/ohio-sues-5-major-drug-companies-for-fueling-opioid-epidemic">The suit names</a> Purdue Pharma, Endo Health Solutions, Teva Pharmaceutical Industries and subsidiary Cephalon, Johnson & Johnson and subsidiary Janssen Pharmaceuticals and Allergan.</p>
<p>Ohio’s legal theory is based on a straightforward and compelling argument: The state and its citizens have suffered significant harms from the opioid epidemic, which was caused in large part by drug companies’ calculated scheme to overstate the benefits and downplay the risks of opioids. </p>
<p>Reactions to the lawsuit have been mixed. <a href="https://www.washingtonpost.com/opinions/ohio-is-right-to-sue-opioid-manufacturers/2017/06/05/24a3d928-47c4-11e7-bcde-624ad94170ab_story.html?utm_term=.49ae0dcf7b88">Some commentators</a> heralded the move as a way to address opioid manufacturers’ allegedly fraudulent conduct. Meanwhile, others <a href="https://www.theatlantic.com/business/archive/2017/06/lawsuit-pharmaceutical-companies-opioids/529020/">characterized it as a political attempt</a> to gain reputation points or shake down deep-pocketed drug companies. </p>
<p>Indeed, the timing of Ohio’s lawsuit is noteworthy. Shortly after filing the case, Attorney General Mike DeWine announced that he was <a href="http://www.cleveland.com/open/index.ssf/2017/06/mike_dewine_makes_run_for_ohio.html">running for governor</a>. DeWine, 70, a well-known Republican in the state, served two terms in the U.S. Senate before being unseated by Sherrod Brown in 2006. Going after opioid manufacturers is certain to be a prominent talking point during DeWine’s campaign. </p>
<p>Putting politics aside, however, does the case have a legal leg to stand on? Being a professor of law and public health at Ohio State University, I was curious to unpack the legal theories of the case. </p>
<p>The lawsuit is likely to be closely watched across the country, as many communities have been devastated by the opioid epidemic. In 2015, <a href="https://www.cdc.gov/drugoverdose/data/statedeaths.html">opioids killed more than 33,000 in the U.S.</a> Public health officials estimate that <a href="https://www.drugabuse.gov/about-nida/legislative-activities/testimony-to-congress/2016/americas-addiction-to-opioids-heroin-prescription-drug-abuse">over two million Americans are abusing the drugs</a>. <a href="https://www.ems1.com/opioids/articles/243092048-8-U-S-regions-hit-hardest-by-the-opioid-epidemic/">Rural communities</a> have been hit especially hard.</p>
<h1>A public nuisance</h1>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/176271/original/file-20170629-16069-1bu7f57.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/176271/original/file-20170629-16069-1bu7f57.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/176271/original/file-20170629-16069-1bu7f57.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/176271/original/file-20170629-16069-1bu7f57.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/176271/original/file-20170629-16069-1bu7f57.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/176271/original/file-20170629-16069-1bu7f57.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/176271/original/file-20170629-16069-1bu7f57.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Johnson and Johnson, Purdue Pharma and Teva Pharmaceutical Industries are among the companies implicated in the lawsuit.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/moscow-russia-april-2017-johnson-logo-635798789?src=99TfODwEivrVZzP6mGuxgA-1-0">Alexander Tolstykh/Shutterstock.com</a></span>
</figcaption>
</figure>
<p>Ohio’s first contention is that drug companies have caused a “public nuisance.” That, in general terms, is when an entity engages in conduct that substantially threatens society’s health, safety or welfare.</p>
<p>The state grounds this claim on a state statute, the <a href="https://assets.documentcloud.org/documents/3761767/Ohio-opioid-drug-lawsuit.pdf">Ohio Product Liability Act</a>, and on common law principles. Common law principles are legal doctrines that are not codified in a statute but rather have evolved over time from court opinions. </p>
<p><a href="https://assets.documentcloud.org/documents/3761767/Ohio-opioid-drug-lawsuit.pdf">Ohio alleges</a> the companies “misrepresented the benefits of opioids for chronic pain and fraudulently concealed, misrepresented, and omitted the serious adverse effects of opioids, including the addictive nature of the drugs.” In turn, Ohio argues that drug companies knew or should have known their actions would cause substantial and unreasonable harm to the public. </p>
<p>These harms include lost lives, increased demand for emergency services and health care, increased crime and need for law enforcement, broken families and unrealized economic productivity.</p>
<h1>Health care fraud</h1>
<p>Ohio also has several claims related to health care fraud, though each rests on the contention that the drug companies acted deceptively to downplay risks and inflate prescriptions. </p>
<p>For example, Ohio turns to a state consumer fraud statute, the <a href="https://assets.documentcloud.org/documents/3761767/Ohio-opioid-drug-lawsuit.pdf">Ohio Consumer Sales Practices Act</a>. Under this statute, it is illegal for a company to make false or deceptive statements that cause a consumer to buy a product that they otherwise would not have. </p>
<p>The complaint notes that Ohio’s citizens spent <a href="https://assets.documentcloud.org/documents/3761767/Ohio-opioid-drug-lawsuit.pdf">over US$200 million on opioids between 2006 and 2016</a>. The state alleges that many of these purchases would not have been made had the manufacturers not made false or deceptive statements. </p>
<p>The lawsuit also contends that the conduct of the drug companies implicates <a href="https://assets.documentcloud.org/documents/3761767/Ohio-opioid-drug-lawsuit.pdf">Ohio’s Medicaid fraud statute</a>, which prohibits conduct that causes doctors to submit claims for Medicaid payment for drugs that are not medically necessary. </p>
<p>Ohio’s Medicaid program spent <a href="https://assets.documentcloud.org/documents/3761767/Ohio-opioid-drug-lawsuit.pdf">nearly $175 million on opioids from 2006 to 2016</a>. Furthermore, the state <a href="https://assets.documentcloud.org/documents/3761767/Ohio-opioid-drug-lawsuit.pdf">has spent millions</a> treating opioid-related side effects and addictions.</p>
<p>For the Medicaid fraud claim, Ohio alleges that the manufacturers’ false and misleading statements caused doctors to overprescribe opioids and induced the state to pay for the unnecessary prescriptions. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/176275/original/file-20170629-26970-qrxwjo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/176275/original/file-20170629-26970-qrxwjo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=422&fit=crop&dpr=1 600w, https://images.theconversation.com/files/176275/original/file-20170629-26970-qrxwjo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=422&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/176275/original/file-20170629-26970-qrxwjo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=422&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/176275/original/file-20170629-26970-qrxwjo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=531&fit=crop&dpr=1 754w, https://images.theconversation.com/files/176275/original/file-20170629-26970-qrxwjo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=531&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/176275/original/file-20170629-26970-qrxwjo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=531&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Paul Wright, who receives treatment at Neil Kennedy Recovery Clinic in Ohio, shows a picture of himself after a near-fatal opioid overdose.</span>
<span class="attribution"><span class="source">AP Photo/David Dermer</span></span>
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</figure>
<p>Finally, the lawsuit alleges a claim based on Ohio’s <a href="https://assets.documentcloud.org/documents/3761767/Ohio-opioid-drug-lawsuit.pdf">Corrupt Practices Act</a>. This claim is analogous to a conspiracy charge, whereby the defendants are alleged to have worked together to improperly inflate their profits. The state alleges that four opioid manufacturers – Purdue, Janssen, Cephalon and Endo – engaged in a joint marketing enterprise to mislead the public about the benefits and risks of opioids. </p>
<p>In part, the state argues, this marketing scheme involved paying physicians to promote opioids and downplay the risks.</p>
<h1>Challenging questions</h1>
<p>A key thread running through each of the claims is that the drug companies concealed or downplayed the risks of opioids. </p>
<p>In their defense, the companies certainly will point to the warnings that accompany opioids and to the state of medical knowledge regarding best practices for when opioids should and should not be prescribed.</p>
<p>As to the warnings, <a href="https://supreme.justia.com/cases/federal/us/555/555/">the U.S. Supreme Court has ruled</a> that manufacturers of brand name drugs have a legal obligation to update warnings once new information is obtained. This obligation applies even if the new information is based solely on a new analysis of previously known data. The companies do not need to seek FDA approval to strengthen the warnings. So, key questions will be whether drug companies knew of additional risks or failed to disclose risks in a timely manner. </p>
<p>Another key question will be whether the companies caused overprescription of the drugs. And, if they did, does the law hold drug companies accountable when an individual uses opioids in a way that their doctor did not prescribe them? Moreover, are drug companies responsible when a physician prescribes a drug for a condition for which it was not FDA-approved? </p>
<p>As to the latter issue, the court must examine closely how drug companies marketed opioids. In particular, the court will analyze whether the companies endorsed the use of opioids for conditions other than those for which the drugs were FDA-approved. In many circumstances, it is <a href="https://www.fda.gov/downloads/drugs/guidancecomplianceregulatoryinformation/guidances/ucm537130.pdf">illegal for a drug company to promote</a> its drug for off-label uses. At the same time, however, <a href="https://www.fda.gov/forpatients/other/offlabel/default.htm">physicians</a> are free to prescribe drugs for conditions (or at dosage levels) other than that identified on the drug label.</p>
<p>In 2007, Purdue Pharmaceuticals, one of the drug companies named in the lawsuit, <a href="http://www.cnbc.com/id/18591525">settled a case</a> where it was alleged to have misled regulators, physicians and the public about the risks of Oxycontin, an opioid pain medication. Purdue and other opioid manufacturers have also settled <a href="https://www.theatlantic.com/business/archive/2017/06/lawsuit-pharmaceutical-companies-opioids/529020/">similar cases</a>.</p>
<p>These settlements, however, can cut both ways. The cases represent examples where drug companies hid the ball on risks. However, the settlements also bring into the public sphere the fact that opioids are addictive and carry serious risks. </p>
<p>As lawsuits similar to Ohio’s are being filed across the country – for example, by the <a href="http://www.cleveland.com/metro/index.ssf/2017/06/dayton_lorain_to_sue_opioid_ma.html">city of Dayton</a>, <a href="http://www.clarionledger.com/story/news/2017/06/11/mississippi-sets-tone-opioid-drugmakers-face-rising-tide-lawsuits/346518001/">state of Mississippi</a> and <a href="http://www.reuters.com/article/us-ohio-opioids-lawsuit-analysis-idUSKBN18T1H4">counties in New York and California</a> – opioid manufacturers will be mindful of the implications of settling before a court rules on the legitimacy of the underlying legal theories. As these nuanced legal issues play out under different state laws, the winner of the disputes may vary.</p><img src="https://counter.theconversation.com/content/79322/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Efthimios Parasidis does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The state of Ohio filed a lawsuit against opioid manufacturers. Will their legal arguments hold up in court – and what will it mean for other cities and states going after big pharma?Efthimios Parasidis, Associate Professor of Law and Public Health, The Ohio State UniversityLicensed as Creative Commons – attribution, no derivatives.