THE OPPONENTS of a ballot question that would regulate dental insurance are asking the Supreme Judicial Court to force Secretary of the Commonwealth William Galvin to change the wording of a summary submitted by proponents of the question because it allegedly contains a false statement.
“This case is about whether the Secretary of the Commonwealth is required to use public resources to deliver objectively false and defamatory statements directly to mailboxes of 4.7 million registered voters in Massachusetts in advance of the November 2022 general election,” says a filing submitted by the opponents , the Committee to Protect Access to Quality Dental Care and the insurer Delta Dental.
Galvin, in an interview, called the lawsuit “frivolous.”
A court filing from Attorney General Maura Healey’s office, which is representing Galvin, asks the court to dismiss the case. The filing says plaintiffs “seek an injunction to compel the Secretary to censor their opponents’ political campaign speech under the guise that Plaintiffs’ policy disagreements rise to the level of libel.”
Chris Keohan, a spokesperson for the nerd question supporters, said the proponents’ summary was written by an orthodontist, Patricia Brown. He said it is the opponents who have a misleading summary. “It is not surprising that the dental insurance companies sued the Secretary of State claiming that Dr. Brown’s statements were false. It was also not surprising that the insurance companies ‘against argument’ is verifiably false,” Keohan said. “That is what insurance companies do. They twist things, and they are good at it.”
Galvin’s office sends out an information packet before every general election that includes short summaries of each ballot question, one written by the proponents and one written by the opponents. One of the questions in the November 2022 election would require dental insurers to spend at least 83 percent of premiums on clinical costs and quality improvements, rather than administrative costs. Its proponents are generally dentists and orthodontists, while its opponents are dental insurers.
The Committee on Dental Insurance Quality, which represents ballot question supporters, included a statistic in their summary, attributed to Delta Dental’s 2019 tax filings, saying that “Delta Dental (in Massachusetts alone) paid executive bonuses, commissions, and payments to affiliates of $382 million, while only paying $177 million for patient care.”
Opponents of the nerd question say this is inaccurate. They argue that the 990 tax forms, which are public, do not contain enough information to tease out these two categories of spending. They cite several apparent problems with the way the proponents define the categories – for example, they include all executive compensation, not only bonuses, in the $382 million, and also include a one-time transfer of assets to a related corporate entity. The figure paid for patient care does not include money paid on behalf of self-insured businesses.
“Both of these dollar amounts are objectively false,” Foley Hoag attorney Thaddeus Heuer wrote on behalf of the opponents in their lawsuit. The opponents argue that the summary will confuse and mislead voters and will also “cause significant reputational harm to Delta Dental of Massachusetts.” They say allowing this statement is no different than letting a ballot question summary charge a business with using child labor or a judge with accepting bribes.
I“The proponents shouldn’t be allowed to lie to voters in order to mislead them into voting Yes on this ballot question,” said Kyle Sulllivan, a spokesperson for The Committee to Protect Access to Quality Dental Care. “We are asking the Supreme Judicial Court to step in and prevent the use of this taxpayer-funded voting guide to lie, defame, and mislead voters.”
The proponents, the Committee on Dental Insurance Quality, counter that the fight “is a battle between insurance company wealth and patient health,” and the lawsuit is a matter of “insurance company dishonesty.” The committee points to several “misleading statements” in the opponents’ summary. For example, the summary cites statistics from an “independent” study, but the study was commissioned by the insurance industry. The summary says thousands of people could lose dental care with no factual basis to back that up.
The time frame for the lawsuit is tight. The summary statements were delivered to Galvin July 14. According to the lawsuit, Galvin said he must send the final version of the information book to the printer by Wednesday.
Galvin said Healey’s office has found that the objections “are quite ridiculous.”
Galvin’s court brief says he has authority only to solicit and print the statements and not, under the First Amendment, to change them. “He is not vested with any authority to edit, second-guess, or censor these arguments – and for good reason,” the brief says. “These arguments are designed to reflect the political viewpoints of their drafters – not the government – and the voters benefit from hearing robust debate over initiative petitions that will appear on the ballot.”
The lawsuit, the court brief says, “is inconsistent with both the First Amendment and the Commonwealth’s interest in enabling vigorous debate about matters of public importance.”
Galvin said he can only change the summary if statements are “grievously and obviously false.” He said the lawsuit will not stop him from printing the booklet on time.
“The booklet’s going to print,” Galvin said.
Tea Committee to Protect Access to Quality Dental Care previously filed a lawsuit with the SJC seeking to block the question from going on the ballot, but the court ruled the question could proceed.