TennesseeThe Journal The weekly insiders newsletter on Tennessee government, politics, and business Vol. 46, No. 9 February 28, 2020 Will Bloomberg gambit pay off in Tennessee on Super Tuesday? Tennessee is hardly uncharted territory when it $114,000 by Biden, and $37,000 by Pete Buttigieg. Klo- comes to receiving attention from presidential hopefuls, buchar had rallies scheduled for Nashville on Friday but over the last several cycles it has been Republicans and Knoxville on Saturday, while surrogates made who have made the bigger effort to court primary voters appearances for other candidates. They included in the state than Democrats. Atlanta Mayor Keisha Lance Bottoms campaigning in This time around, Tennessee has become a top prior- Nashville for Biden on Friday. Earlier in the week, Sand- ity for one candidate in particular: Democrat Mike ers’ wife, Jane, visited Nashville and actress Ashley Judd Bloomberg, who is making his latest visit to the state on campaigned for Warren in Nashville and Memphis. Friday, his fourth since entering the race. The former Early indicators. This year’s early voting turnout New York mayor has spent $7.8 million through the was 13% below 2016 levels, a decrease attributable to middle of this week on broadcast TV, cable, digital, and the 90,000 fewer Republicans who cast ballots in a pri- radio ads in Tennessee, according to Advertising Analyt- mary in which President Donald Trump faces no serious ics. Bloomberg has also hired more than 40 staffers and opposition. Democrats trying to influence the wide- opened seven campaign offices around the state. open presidential nomination contest saw an increase of Bloomberg has been rolling out a series of blast- 41,000 voters, a 30% jump over 2016. from-the-past endorsements, including from former While Republicans outvoted Democrats by a 33 per- U.S. Reps. Harold Ford Sr. (D-Memphis) and John Tan- centage point margin four years ago, the GOP advantage ner (D-Union City), along with former mayors Randy was eliminated this time around. Democrats made up Tyree of Knoxville and Jon Kinsey of Chattanooga. 50.3% of the early vote and represented a majority of Those endorsements are likely aimed at undercutting the turnout in 14 counties, compared with just four the narrative of former Vice President Joe Biden having counties in 2016. a lock on the state’s Democratic establishment. Without reliable polling, it’s not immediately clear The Bloomberg campaign has focused on under-the- which Democratic candidates might benefit most from radar states that could net a strong haul of delegates on the early voting higher turnout. But perhaps historical Super Tuesday. The primaries in Alabama, Arkansas, performance will serve as a guide. Oklahoma, and Tennessee, where Bloomberg has Democrat Hillary Clinton won the state with 66% of focused much of his efforts, have a combined 294 dele- the vote in 2016, enough to garner 49 delegates. Sand- gates on offer. That’s 66 more than Texas and 122 fewer ers, who is the leading Democrat so far this year, than California, which also vote Tuesday. received 32% of the vote and 22 delegates four years While Bloomberg’s heavy campaign spending activity ago. President Donald Trump gained 39% in the GOP in Tennessee is unusual, it still pales in comparison with primary, winning 94 of 95 counties. Ted Cruz was sec- the barrage voters were subjected to in the 2018 U.S. ond with 25%, and Marco Rubio (who carried William- Senate race in which Republican Marsha Blackburn and son County) was third with 21%. her allies dropped a dizzying $29 million and Democrat Some of Tennessee’s early voting patterns appear Phil Bredesen and his supporters spent an eye-popping promising for Sanders. Democratic turnout has been $23 million. Given that experience, Tennessee voters substantially higher in counties where he did relatively may be numb to the occasional Bloomberg ad. well in 2016, such as in Washington — one of three Ad spending has been far more modest among the counties where Sanders beat Clinton that year — and in other Democrats: about $770,000 by Amy Klobuchar, Knox, where he fell just 3 percentage points short last $568,000 by Bernie Sanders, $563,000 by Tom Steyer, time around. Both are home to universities, where $446,000 by the pro-Elizabeth Warren Persist PAC, Sanders has strong followings around the country.

THE TENNESSEE JOURNAL (ISSN 0194-1240) is published weekly except for one week in June, one in September, and Christmas week by M. Lee Smith Publishers®, a divi- sion of BLR®,100 Winners Circle, Suite 300, Brentwood TN 37027, 615/373-7517 or 1-877-826-5297. Periodicals postage paid at Franklin TN and at additional mailing offices. POSTMASTER: Send address changes to THE TENNESSEE JOURNAL, P.O. Box 5094, Brentwood TN 37024-5094. Copyright 2020 M. Lee Smith Publishers, a division of BLR. Photocopying or reproducing in any form in whole or in part is a violation of federal copyright law and is strictly prohibited without the publisher’s consent. Editor: Erik Schelzig ([email protected]) • Vice President/Legal: Brad Forrister • Editorial Coordinator: Savannah Gilman Clinton in 2016 trounced Sanders in Shelby and disfigurement, or injury to reputation. The statute also Davidson counties, the state’s most heavily Democratic limited punitive damages to double the compensatory areas, winning a respective 80% and 65% of the vote. damages or $500,000, whichever is greater. The latter Both counties had originally been expected to solidly has been found to violate the state constitution by the support Biden this time around, but his lackluster show- 6th Circuit U.S. Court of Appeals. ings in early primaries have contributed to flagging Critics of the federal decision argued the panel erred enthusiasm for the former vice president. by declining to ask the state Supreme Court to weigh in The Biden campaign is banking on a strong perfor- on Tennessee constitutional questions. But the nation’s mance in Saturday’s primary in South Carolina — the highest court in December declined to consider a chal- first contest featuring a major African-American popu- lenge of the ruling in Lindenberg v. Jackson National. lation — to turn the tide for Super Tuesday states casting This week’s state ruling is in response to certified ballots next week. But that will be too late for those who questions submitted by U.S. District Judge Eli Richard- have voted early — which was about one out of every son after a jury had awarded a California woman named three Democrats in the 2016 primary. Jodi McClay $930,000 in noneconomic damages — or Democratic surge? It was an unexpected develop- $180,000 more than the state cap — after a beverage ment for Democrats, a party grown accustomed to lack- cooler fell and crushed her foot at the Nashville airport. luster turnout at the polls, to outnumber Republicans in Bivins wrote in the ruling that juries are not informed early voting. But before Democrats get too excited about about the cap on noneconomic damages as they deliber- their 2,429-ballot margin through the 12-day period, it’s ate over awards. That extra step means plaintiffs have worth remembering that incumbent presidents have not lost their right to having juries decide the underlying inspired far more meager turnouts in the past. facts of cases, he found. Bivins cited state Supreme About 167,000 Republicans cast ballots in early vot- Court rulings in Alaska, Idaho, Ohio, and Maryland that ing this year, presumably the vast majority of them for came to similar conclusions upholding the constitution- Trump. That compares with just 99,000 Republican ality of caps on noneconomic damages. ballots, or 21% of all the votes cast, in the 2004 primary when President George W. Bush was seeking his second Clark wrote in her dissent that every version of the term. Bush nevertheless went on to carry the state over Tennessee Constitution since 1796 has declared “the Democrat John Kerry 57% to 43%. right of trial by jury shall remain inviolate.” The caps on damages amount to a “legislative usurpation of the Here’s a closer look at the top counties where Demo- jury’s constitutionally protected fact-finding function,” cratic turnout rose the most compared with 2016: she wrote, citing similar rulings by high court counter- County Dem GOP Total GOP Dem parts in Alabama, Georgia, Kansas, Missouri, and change change change % % Washington declaring that caps on damages violate Shelby 7,864 -7,710 154 22% 78% their respective constitutions. Knox 7,081 -8,744 -1,663 51% 49% Lee questioned the need for the caps when Tennessee Davidson 6,682 -9,698 -2,816 21% 79% doesn’t have a history of “runaway juries.” In the five Williamson 3,921 -4,259 -338 48% 52% years before the tort reform law, the annual average Hamilton 3,380 -3,686 -306 43% 57% award of economic and noneconomic damages was about $299,000. In the five years after the new law went Rutherford 2,227 -6,399 -4,172 46% 54% into effect, the average was nearly $373,000. Lee said Wilson 1,1612 797 2,487 66% 33% the judicial power to reduce jury awards is only permis- Washington 1,366 160 1,496 65% 35% sible under the state constitution because plaintiffs who From the courts disagree with the modifications can seek new trials. Supreme Court in 3-2 ruling upholds As for the disparity between the state ruling uphold- ing noneconomic damages and the 6th Circuit decision state cap on noneconomic damages throwing out the limits on punitive damages, Bivins A narrowly divided state Supreme Court has ruled stressed that federal decisions are not binding in state that a Tennessee law placing caps on noneconomic courts. He also declared the reasoning behind the Lin- damages in civil lawsuits does not violate the right to a denberg decision to be “unpersuasive.” But because the jury trial guaranteed by the state constitution. The deci- cap on punitive damages was not including in the pend- sion upholds a key component of the tort reform pack- ing case, “we express no opinion on this issue.” It age championed by former Gov. Bill Haslam and his appears to be only a matter of time before someone then-legal counsel Herbert Slatery, who is now the makes sure to put that question to the high court. Supreme Court-appointed state attorney general. Appeals court. The Governor’s Council for Judicial Justices Jeff Bivins, Holly Kirby, and Roger Page, Appointments has narrowed the field of 16 applicants to each Haslam appointees, formed the majority. The dis- succeed retiring Appeals Judge Charles Susano Jr. to a senters were Justices Cornelia Clark and Sharon Lee, panel of three for Gov. Bill Lee to choose from. The appointees of former Democratic Gov. Phil Bredesen. finalists are Chancellor Jerri Bryant of Athens, Circuit The law enacted in 2011 set a $750,000 limit for non- Judge Kristi Davis of Knoxville, and Circuit Judge economic damages — for such things as pain, suffering, Thomas Wright of Greeneville. Tennessee News Digest ● Explosives maker Accurate Energetic residents, the paper rated Jackson at No. ● The former home of The Tennessean Systems LLC announced a nearly $10 62, Clarksville No. 86, Chattanooga No. and Nashville Banner will not, as widely million expansion and modernization of 99, and Knoxville No. 114. Johnson City speculated, be turned into a parking lot. its 1,300-acre facility in Hickman and got the state’s worst ranking at No. 226. The Nashville Post reports it will instead Humphreys counties, creating 80 jobs. ● The Justin P. Wilson Cumberland serve as a staging ground for nearby con- ● Nashville has the country’s second- Trail State Park is getting a 6,229-acre, struction projects. hottest job market after Austin, Texas, or nearly 10-square-mile, addition. The ● The Joint Center for Political and Eco- according to the latest ratings by The acquisition will connect the Ozone Falls nomic Studies found Tennessee’s con- Wall Street Journal. Memphis ranked State Natural Area to the park. Plans call gressional delegation is the only one in 29th among the largest 381 metro areas. for the trail to run 300 miles from the Washington without a person of color Among cities with fewer than 1 million Cumberland Gap to Chattanooga. serving in a senior staff position.

Legislative roundup Beyond the lack of partisan enthusiasm for the plan Lee goes great guns over permitless (family leave proposals have traditionally been champi- oned by Democrats), Republican lawmakers also chafed carry amid uneasy GOP relations at the governor’s claim that the change wouldn’t come at Second-year Gov. Bill Lee has been keeping fellow any new cost to the state. The legislature’s fiscal note on Republicans in the General Assembly off balance with the policy change now pegs the cost at $15 million per his major policy initiatives. While many criticized his year, mostly to pay for overtime and temporary workers decision to keep Tennessee in the federal refugee reset- to cover for employees going on leave. tlement program, the stage was overflowing with GOP Certificates of need. New House Speaker Cam- supporters when he announced plans to file sweeping eron Sexton’s major priorities include an overhaul of legislation aimed at curbing access to abortions. what he sees as Tennessee’s overly cumbersome certifi- Muttering has been on the rise among Republican cate-of-need system for permitting new hospitals and lawmakers about Lee’s efforts to extend 12 weeks of paid medical facilities around the state. leave to state employees caring for a new child or ill fam- The Crossville Republican’s efforts are meeting resis- ily member. But the pendulum again swung toward the tance from the Tennessee Hospital Association, which political red meat Thursday, when Lee announced he prefers the current system. The THA this week launched will lead efforts to do away with requirements to obtain what it calls a campaign to “engage and mobilize” hospi- a state-issued permit to carry handguns in public. tal employees on healthcare issues in the state. The Lee was joined onstage by an overflow crowd of effort dubbed “We Care We Vote” is a not-so-subtle Republican lawmakers thrilled with his decision to take reminder to lawmakers that hospitals are top employers the lead on eliminating the permit requirements. The in many parts of the state. governor said the measure will also increase penalties Literacy initiative. Lee’s plan to spend $68 mil- and set mandatory sentences for stealing guns. The cost lion on a new literacy initiative was lauded by both sides of the proposal wasn’t immediately available. of the aisle when he first proposed it in his State of the The National Rifle Association is working closely State address earlier this month. But when the detailed with the Lee administration on the proposal. But the legislation was finally unveiled this week, the plan sud- effort was panned Shelby County District Attorney Gen- denly received some pushback from education groups eral Amy Weirich, a Republican, who said removing worried he was moving too quickly. permit requirements for open carry would create But Lee picked up an important ally in Sexton, with “incredible challenges for law enforcement.” whom he hasn’t necessarily seen eye-to-eye on other Tennessee’s longstanding handgun permit system education issues so far. The governor and the speaker requires background checks and eight hours of hands- toured a Nashville elementary school on Thursday, and on weapons training. About 653,000 Tennesseans, or Sexton told The Tennessee Journal afterward that he 12% of the state’s adults, were permit holders as of the was in “total agreement” with Lee on the literacy pro- end of last year. The state suspended or revoked 2,793 posal. Sexton cited its focus on phonics at the earliest permits and denied 2,326 applications in 2019. grade levels to promote reading proficiency. A law that went into effect on Jan. 1 created a two- Superintendents have also raised concerns about the tiered system. The old permits are now classified as legislation for proposing diagnostic testing for children “enhanced,” while the new “concealed-only” permits in kindergarten through second grade. Testing currently can be obtained through an online-only course. begins in third grade. Lee said assessments are neces- Family leave. Republican unease about Lee’s fam- sary to ensure the program is working. Sexton said he ily leave policy resulted in the governor withdrawing an expects the administration to make a “great case” to executive order that would have put the program into lawmakers about why the tests are needed. effect for state workers starting on Sunday. He’s now Search warrant. The FBI executed search war- pursuing legislation to write the policy into law for exec- rants on the home and nursing school owned by state utive, legislative, and judicial branch employees. Sen. Katrina Robinson (D-Memphis) last week. Tennessee Notes & Quotes ■ “Since I became governor, I’ve been to Korea, I’ve ■ “If we want to talk about safety, somebody should been to Japan, and I’ve been to, as I like to say, foreign amend this bill to say we need to ban drive-thrus. countries on the West Coast, recruiting companies to Because you cannot eat a taco well in a car.” — State locate their businesses here.” — Gov. Bill Lee at an Sen. Jon Lundberg (R-Bristol) about his failed bill to economic development announcement near Bucksnort. dial back a ban on using mobile phones while driving. ■ The University of Tennessee’s board of trustees has ■ “Not many people in my district trust the govern- planned a series of town halls to gather feedback on the ment and they don’t trust the insurance companies. And recommended appointment of Randy Boyd to a five- when you put the two together, you’ve got a double neg- year term in charge of the system after two years as ative.” — Sen. Frank Niceley (R-Strawberry Plains) interim president. The meetings are March 4 in Chatta- about the sale of driver’s license information. nooga, March 5 in Memphis, March 9 in Knoxville, ■ The revival of the Nashville Banner as a nonprofit March 10 in Martin, and March 11 in Nashville. online news organization is nearing its launch. Editor ■ “The two most despised names in Tennessee right Steve Cavendish announced reporters will initially now are Nancy Pelosi and Mitt Romney. The presi- focus on state and local government, education, busi- dent and I both talked about how we both supported ness, and criminal justice. Ex-WSMV anchor Deme- Mitt Romney back in 2012 to defeat Barack tria Kalodimos will serve as executive producer. Obama. And now it seems he’s become indistinguish- ■ Social media attention wasn’t the only thing state able from Barack Obama. It’s like it’s one.” — Republi- Rep. Kent Calfee got from a Tennessean photo show- can U.S. Senate candidate Bill Hagerty, the finance ing the Kingston Republican swigging from a Hershey’s chairman for Romney in 2008 and a national strate- chocolate syrup container he uses as a water bottle. gist for the Utah senator’s 2012 campaign. ■ The Hershey Co. apparently took note of the publicity ■ “She was totally biased.” — President Donald generated by Calfee’s unlikely turn as a viral sensation, Trump in a tweet about former Memphis school sending a case of its chocolate syrup to his office in board member Tomeka Hart, who served as jury Nashville. Seeking to avoid a potentially sticky situation, foreman in the trial and conviction of Roger Stone. Calfee said he got clearance to accept the gift from the ■ “Both the prosecution and defense knew she was a Tennessee Ethics Commission after it was confirmed former Democratic congressional candidate.... It is a the company doesn’t employ a lobbyist in the state. disgrace for President Trump and his allies to question ■ That doesn’t mean Hershey doesn’t have a presence her honest service as a juror.” — U.S. Rep. Steve in Tennessee. The company makes its Ice Breakers Cohen (D-Memphis), who defeated Hart in 2012. brand of gum and mints at a plant in Memphis. Which ■ Attorney Jim Gilliland, a co-chair of Willie Her- seems appropriate, as drinking from a chocolate syrup enton’s transition team after he won election as the bottle could also work as a sort of icebreaker. first black mayor of Memphis in 1991, has died at age ■ State Rep. Joe Towns’ boycott of the Tennessee 86. Gilliland later worked as general counsel to the U.S. Registry of Campaign Finance appears to be over. The Department of Agriculture and was an adviser to Al Memphis Democrat on Feb. 3 submitted seven overdue Gore for his 1988 and 2000 presidential bids. He also fundraising disclosures in which he detailed a total of hired Memphis Mayor Jim Strickland to his first job. $11,750 in itemized contributions. Amid his refusal to ■ “He was a great example of a lawyer who took leave file those and other reports, Towns has accrued from his private practice to serve this city and our coun- $65,000 in pending civil penalties. Candidates with try.’ — Strickland remembering Gilliland. unpaid campaign finance fines can’t run for re-election. ■ “I am applying for the position of former director.” — ■ Towns, who paid off $35,000 in previous fines to Ed Carter, the executive director of the Tennessee qualify for the ballot in 2012, told the Daily Memphian Wildlife Resources Commission since 2009, in his lawyer has been in talks with Attorney General Her- announcing his plans to retire in May. bert Slatery’s office to try to reach a settlement in time ■ This was Chris Walker’s last week as Gov. Bill for the Registry’s last meeting before the filing deadline. Lee’s communications director. Walker had initially ■ “I believe in miracles.” — Towns on his prospects of intended to depart the administration at the end of last striking a deal and qualifying for re-election. year but agreed to stay on to bridge the gap until the ■ A bill to allow a for-profit social club called The Reg- return of successor Laine Arnold from maternity ister to apply for a liquor license is headed for its last leave toward the middle of March. committee hearing before a House floor vote. The estab- ■ The Reporters Committee for Freedom of the Press lishment’s website touts “experience specialists” who has hired Adams and Reese attorney Paul McAdoo to can advise members on how to “buy a Lamborghini — direct legal support for enterprise and investigative with cash, credit card, or even the blockchain.” journalism in Tennessee as part of the group’s efforts to ■ Last week, we posited that the booze bill might better improve public records access and to challenge “overly be applied to the Registry. Joe Towns might agree, so broad” applications of law enforcement exemptions. long as he can pay off his fines with funny money, too.