UNCONSTITUTIONAL? Changes to California Stem Cell Program May Require State Vote

By Don C. Reed

It was just a small office conference room in the city of San Francisco, with clean white tables and simple chairs.

But on every table was a microphone.

And what was decided between the hours of 10:00 and 11:30 AM, on July 16th, 2009, could affect the lives of millions of suffering human beings.

Seated at the front table were Bob Klein, Art Torres, and Jeff Sheehy. Attending by phone were Duane Roth, John Reed, Joan Samuelson, Claire Pommeroy, Susan Bryant, and Francisco Prieto, and maybe one or two others I did not type fast enough to catch.

This was the legislative subcommittee of California’s stem cell program.

Today they would decide how to respond to an 84 page report from the Little Hoover Commission (LHC), a catalog of criticisms and suggestions for changes in the law. The report was titled: “Stem Cell Research: Strengthening Government to Further the Voters’ Mandate”. (Please note that word “Further”– it will be important later on.)

The meeting began with a shock. Bob Klein relinquished the chairmanship of this important committee, passing the baton to vice-chair Art Torres.

Former California Senator Torres is of course no stranger to the politics of hope. He has fought for people’s rights for decades, including work with Cesar Chavez and the United Farm Workers.

But nobody knows the stem cell program like Bob Klein. True, he would retain the chairmanship of the larger governance board, the Independent Citizens Oversight Committee (ICOC), but why give up this small but crucial responsibility?

Four words: “my wife’s health challenges” was all he said, but the room went still. Danielle Guttman-Klein works on her environmental programs with the same enthusiasm and dedication her husband brings to stem cell research. When you meet her, vibrant, athletic, a smile like the young Doris Day– it is hard to believe she is battling cancer.

New chairman Torres said he had not yet voiced his opinions on the report, and would hold his comments till after everyone else had their say.

Bob continued. Some of the Little Hoover Commission suggestions were intriguing, he said, worthy of careful consideration. Others “should not be on the table at all, or they might sweep everything away”.

CIRM Attorney James Harrison spoke. This is the man who helped Bob Klein write Proposition 71, so he knows it backwards and forwards. He works with Remcho, Johansen & Purcell, one of two law firms associated with Proposition 71 since it began. The other is Nielsen, Merksamer, Parrinello, Mueller & Naylor. Both firms provided documents.

There were three sets of changes suggested. In the 90-minute meeting, we could only discuss one, the most serious. Enacted into law, these changes would:

1. Cut our board of directors in half, from 29 members to 15.

2. Reduce board members’ terms to 4 years, instead of the current 6 or 8.

3. Let the Governor choose most of the board: 11 of 15 members.

4. Eliminate the Chair and vice-Chair’s statutory powers.

5. Allow the new board to elect the chair and vice chair only from its members.

How serious are these changes?

According to a public letter from California State Senator Dean Florez, Senate Majority Leader, these changes would “essentially re-write Proposition 71.”

They may also be unconstitutional.

Article II, section 10 (c) of the California Constitution sets guidelines for changing an initiative like Prop 71, the California stem cell program.

“The Legislature may amend or appeal…an initiative statute by another statute… only when approved by the electors unless the initiative statute permits amendment or repeal….” –emphasis added.

So they have two options:
1. set up another initiative to change the first, including a new vote of the people;
2. use whatever guidelines for change exist in the original law.

Option 1 is difficult. To “re-do” an initiative, the legislature has make up another initiative with the changes they want, get it approved by Assembly and Senate, (possibly the Governor? I am not sure) and finally present it to the voters—who may not appreciate this flouting of their will.

Option 2 is to use guidelines for amendment already in the initiative.

Does Proposition 71 have provisions to allow such changes? Yes, but with conditions.

“…Proposition 71 can only be amended by the Legislature “to enhance the ability to further the purposes of the grant and loan programs created by the measure”…(Section 8.) Amendments that do not further the purposes of the grant and loan programs created by Proposition 71 can only be adopted by another vote of the people.”—Nielsen, Merksamer, et al.

Remember that word “Further” in the title of the Report? That is a politically loaded term, since any new laws affecting Prop 71 must “further the purpose” of the initiative.

Would the first group of changes meet that standard, and “further the purpose” of the initiative?

In a word, no.

Proposition 71’s purpose was to make grants and loans to advance stem cell research, in a non-political way. That is clear from any reading of the Proposition 71 language, ballot materials, campaign literature, and the non-partisan legislative analysis provided by the state.

California voted for our program to be set up in a very specific way: so politics would not interfere with research for cure. Our families deserve the best medical treatments science can provide—not what is ideologically acceptable.

In Proposition 71 the power of selecting the governing board was spread widely, to prevent any individual from imposing political domination over the research.

Some of the LHC suggestions would politicize our program.

For example: on their suggested new and smaller board of directors, 11 of 15 members (73%) would be chosen by the next Governor.

What happens if that Governor was against embryonic stem cell research?

California has been fortunate in Governor Schwarzenegger’s steadfast support of the research. He has stood by our stem cell program again and again, even when that was not politically easy. In the history of medicine, he has earned a place of honor.

But another Governor might oppose the research. Last year’s national Republican platform called for the criminalization of embryonic stem cell research. A governor who supported that extreme position could easily “stack the deck”: choosing board members who would push the research into a direction not intended by the voters. Or, the new Governor might decide our state “can’t afford it”. With the power of the board, they could deliberately slow down the program–or reduce our funding, as was suggested during the LHC hearings.

The conversation began. (My comments, as always, are taken from memory and notes; if I mischaracterize anyone’s position, I hope they will straighten me out on the matter.)

To fight, or not to fight; that was the question, it seemed to me. Should the legislative subcommittee accept or reject these five most serious LHC suggestions?

Board member Jeff Sheehy appeared to regard the Little Hoover Commission as an opening position, details to be worked out later. He credited the California program as something wonderful, which should be continued on a long-term basis, and that meant having the flexibility to adjust along the way. He seemed willing to consider some of the LHC recommendations.

He also saw a need for change right now. For instance: patient advocates on the board cannot have substitutes, which wreaks a hardship. Joan Samuelson, for example, has Parkinson’s disease. It is sometimes difficult for her to deal with the condition as well as the work; she and other patient advocates should be allowed a substitute for board meetings when the need arises.

That is perfectly reasonable. But do we need to revamp the entire program to accomplish it? We could do what our governing board usually does, “agenda-ize” the problem, put it on the official calendar for discussion, and then work out an answer. That is what the ICOC is all about.

Jeff Sheehy questioned the large size of the present board, pointing out that it can be difficult to get the “quorum”: enough eligible folks to make an official vote.

Some meetings do have a little frantic scurrying around to get enough folks in the room. These are top executives, all with crammed schedules, and it is not always easy to get them together. But they cooperate, and it works out. I doubt there have been more than three or four votes that had to be rescheduled; this inconvenience seems a small price to pay, compared to the benefit of having some of the best minds in the nation working together. (To see the caliber of our board, go to www.cirm.ca.gov, and look up their short bios; I guarantee you will be impressed.)

Bob Klein spoke on the positive aspects of a large board of directors. Our 29-member board was patterned after the similarly-sized (26 members) University of California board of Regents. Our board setup allows a broad diversity of opinions, virtually guaranteeing better outcomes. Also there is a lot of work to be done; a smaller committee might not accomplish all the chores. As it is, the board’s ten patient advocates are spread thin. They must be represented on several committees, and are overworked; to cut their number in half would aggravate the situation.

Dr. John Reed noted that any changes should be considered carefully, because sometimes what seemed like even a common sense alteration could have devastating consequences.

That made sense to me. For our program, the ICOC board is like the hull of a ship, on which everything else depends; weakening that would be like drilling holes in the hull.

Major changes also meant possible lawsuits. Joan Samuelson, an attorney herself, reminded us how lawsuits delayed our program before, draining our resources, slowing us down almost two years. The opposition’s lawyers were sure to go over any change “with a magnifying glass”, as she put it. They would search for the smallest detail which could work to their advantage, any foot-hold that could allow them to challenge us in court, to delay or deny our research.

We had a telephone call from Spain, where CIRM President Dr. Allen Trounson had been speaking at the International Stem Cell Research convention. He spoke with delight of the reception the California effort was receiving from the world. “Unprecedented level of support,” he said, and the smile in his voice came through, even over the static crackle of the phone.

Finally, Chairman Art Torres spoke. He said he had worked with the Little Hoover Commission before; they had the luxury of proposing all manner of changes, after which they could “wash their hands of the matter.” But we could not do that. Whatever changes were made, we would be stuck with. In regards to allowing the next Governor to appoint 11 of the 15 board members, Art was not in favor of giving such power to one person. As for the size of the board, Senator Torres had served on many boards, all different sizes, from as small as 3 members to as large as 75—more than double the size of ours. His thoughts on the ICOC? A highly successful board, he said; it had vigorous discussions, made solid, well-grounded decisions—“and at the end of the day, you guys still manage to genuinely like each other!”

And now a motion was needed, to be followed by public comment, and the vote.

Bob Klein made the motion: that the legislative subcommittee should reject this group of changes on grounds they might be unconstitutional, or require another ballot measure. A suggestion was offered by board member Dr. Claire Pommeroy, that the words “on the basis of information received from counsel” be inserted into the motion. This was accepted by the maker of the motion as a friendly amendment.

Then it was public comment time.

David Jensen of the California Stem Cell Report noted that the position of the law firms cited (that the LHC proposals could be unconstitutional without a state-wide vote) was only a legal opinion; other law firms might study the same information and come to a different conclusion.

Fair enough: anyone who listened in on the Sotomayor hearings can vouch for the difference of opinions possible in any interpretation of law.

On the other hand, both of these law firms have been connected to the stem cell program since its inception. It is their business to keep track of every detail of any argument which might affect our stem cell program. Their arguments are backed up by solid legal precedent.

When it was my turn, I quoted Winston Churchill, who said:

“Democracy is the worst form of government, except for all the others”.

There is room for improvement in everything, from democracy itself to our stem cell program.

But it must be admitted the California Institute for Regenerative Medicine is doing a terrific job.

Even the Little Hoover Commission report begins by acknowledging the California program as the “envy of the world… The institute…has directed more than $700 million toward scientific exploration, in the process leveraging an additional $900 million in private and institutional money that has built new facilities, lured scientists to California and spurred growth in the state’s life sciences industry.”

In other words, Prop 71 has done exactly what it promised to do—only better. Not only did it advance stem cell science and the biomedical industry, but it even brought in an unexpected bonus of $900 million dollars!

Why should major changes be imposed on such an outstanding program?

Does the doctor say to a healthy patient, “Okay, you are in great shape—let’s do major surgery?”

As the old saying goes, “If it ain’t broke, don’t fix it!”

At last, everyone had had their say. A roll call vote was taken.

The first group of changes was rejected: 8-0, with one member abstaining.

What happens next?

August 6th is the next legislative subcommittee meeting, to discuss more aspects of the Little Hoover Commission’s report. As always, you are invited; see www.cirm.ca.gov for information.

On August 19th and 20th, there will be a meeting of the full ICOC, where the recommendations of the subcommittee will be discussed, and our governance board will take a position.

I will have to miss that meeting. Gloria and I are celebrating our 40th wedding anniversary by going to Paris. It is financially foolish, we can’t afford it, but we are going anyway. So while you folks are working, I will be in the city of lights, eating French pastry, and trying to work up my nerve to ride that rickety elevator up the most beautiful building in the world, the Eiffel Tower.

But in my suitcase will be the LHC report. I will study it every day. And, to steal a line from America’s favorite stemcell-supporting body-builder/moviestar/Governor: “I’ll be back.”

I would not want to miss the coming battle over the Little Hoover Commission’s proposed changes; it will be a long fight, perhaps our most difficult. The LHC report has gathered many (if not most) of the criticisms that have been thrown at us since 2004, seemingly accepting them all as gospel, and turned them into recommendations for change—to be imposed by law. This next stem cell battle will be like facing all the previously defeated challenges, again.

It is a trifle irritating. After more than a year’s hard work, Proposition 71 won the election. After almost two years in court after that, we beat the lawsuit challenges, including appeals all the way to the California Supreme Court. Since then, our program has survived who knows how many audits, investigations and oversight procedures—not to mention the seven bills previously offered to “improve” us– and now, another one, potentially combining elements from all the others?

Unfortunately, that would appear to be the situation. The LHC-begun law may not happen right away, but it seems to be well into the planning stages.

At a recent committee hearing for another bill (the excellent stem cell education bill, SB 471, from Senators Gloria Romero and Darrel Steinberg) Senator Elaine Alquist spoke about using one of her bills (probably the half-completed SB 343, which is presently about stem cells and intellectual property) to carry some or all of the Little Hoover Commission changes.

What does that mean for us, the patient advocacy community?

We will do as we have always done: study the bill when it comes, discuss it with friends, decide if it is a threat to the California research program– and then take part in the democratic process.

A Little Hoover Commission member told me that one of our options was simply to ignore them; I told him we would never be so rude—nor can we afford to be.

For this is no philosophical debate. This is binding law, intended to permanently alter our shining stem cell program.

The California Institute for Regenerative Medicine offers hope to all who suffer chronic disease and disability.

This is about people we love: like Danielle Guttman-Klein and my sister Barbara, both of whom have cancer, and my son Roman, who is paralyzed, and our little friend Pranav, four years old, who has spinal muscular atrophy—and millions of other folks, your relatives and mine, our friends, our neighbors, ourselves—this is for everyone.

The California program is worth every effort to defend.

P.S. Available at the meeting was an open letter from California Senator Dean Florez, Senate Majority Leader, and a member of the Little Hoover Commission. Portions of it follow below.

Senator Florez states:

“… I would like to note, for the record, my concerns regarding the (Little Hoover) Commission’s report on the California Institute for Regenerative Medicine (CIRM)…

“…the report recommends reducing the size of CIRM’s governing board from 29 members to 15 members and concentrating the power of appointment to the Governor, who would be responsible for appointing 11 of 15 members. The report also recommends stripping the power of the Lieutenant Governor, the Controller, and the Treasurer to make appointments eliminating the statutory duties of the chair and the vice chair….

“…the recommendations, if adopted by the Legislature, would essentially rewrite Proposition 71. (emphasis added, DR) In adopting Proposition 71, the voters specified the governance structure they desired and limited the Legislature’s ability to amend the law. Under Proposition 71, the Legislature may only amend the law to enhance CIRM’s ability to further the purposes of its grant and loan program. The Commission’s recommendations appear to be inconsistent with the voters’ intent and therefore could only be accomplished by proposing another ballot measure…

“…the Commission’s recommendations appear to lack a firm foundation. For example, when I asked (at an earlier meeting—DR) why a 15 member board was inherently better than a 29 member board, Commission members responded that an academic expert on non-profit governance had testified that the ideal board size was seven to nine members, but the expert himself stated that he did not have sufficient knowledge of CIRM’s operations to opine about the ideal board size for CIRM…

“…I am also concerned about the Commission’s attempt to shift power over the agency to the Governor. … CIRM was designed to be an independent agency. Proposition 71 therefore dispersed appointment authority to the Governor, Lieutenant Governor, the Controller, the Treasurer, the Legislature, and UC Chancellors. By concentrating appointment authority in the Governor, the Commission would undermine the careful and deliberate balance struck by Proposition 71. In a controversial area like stem cell research, such a change would threaten the independence that CIRM needs to ensure the success of its mission.

“Finally, I am concerned about the Commission’s apparent rush to conclude its report. As one member said at the meeting, five minutes and a sandwich is not adequate time for Commission members to absorb the information that was presented. While I appreciate the substantial effort that Commission members and staff put into drafting the report, I am concerned that due to its rush to approve the report, the Commission gave disproportionate weight to CIRM’s critics and did not consider a broader range of views on the complex issues that are the subject of the report…”

Dean Florez, Senate Majority Leader, State Capitol, Sacramento, California

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