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Texas Impact
People of Faith Working for Justice

“It's not only what we have inherited from our father and mother that walks in us. It's all sorts of dead ideas, and lifeless old beliefs, and so forth. They have no vitality, but they cling to us all the same, and we can't get rid of them.”

― Henrik Ibsen, Ghosts

Dear {name},

This week, the Texas House of Representatives has been experiencing a COVID outbreak. This accounts for some of the absences from the House floor throughout the week. Meanwhile, the members who were not out sick passed legislation to require Texas pharmacists to dispense ivermectin without a prescription.

Also this week, the House passed HB 7 and SB 8.

HB 7 is intended to prevent abortion drugs from being used for non-emergency abortions. SB 8 is intended to force agencies and entities of state and local government to require trans Texans to use public restrooms that match their sex at birth.

Although HB 7 and SB 8 address different policy areas, they both use the same enforcement mechanism: the “qui tam” (kee-tam) lawsuit. In recent years, this form of law enforcement has gained traction in state legislatures, with Texas in the vanguard.

“Qui tam” is shorthand for a Latin phrase that means to bring a suit on behalf of yourself as an individual as well as the government. A person who brings a qui tam lawsuit is called a “relator;” that person typically does not need to be directly injured by the behavior the suit alleges; and the relator receives part of whatever settlement occurs if the court awards one.

A common use of qui tam is in identifying Medicaid fraud, or “false claims.” For example, the Texas Medicaid Fraud Prevention Act (“TMFPA”) allows whistleblowers to file qui tam lawsuits for false claims for payment from the state’s Medicaid program. A defendant found to have violated the Texas Medicaid Fraud Prevention Act may be liable for a civil penalty. A relator, or whistleblower, may be entitled to a share of the award, whether or not the state intervenes in the case.

In the case of Medicaid fraud, the state has a clear financial interest in preventing and punishing fraud. It seems fair to provide compensation to private individuals who help identify fraud because those individuals may risk their jobs by coming forward if, for example, they work for the firm committing the fraud.

But beginning in 2021, the Texas legislature embarked on a new qui tam regime that differs significantly from the Medicaid fraud model. The legislature’s new model has these characteristics:

The offense of which the defendant is accused need not have created a financial cost to the government or caused harm other than “breaking the law.”
Thus, the financial award if the relator prevails is an arbitrary amount set in law.
The government does not receive any of the award: the relator gets the whole amount.
An offense need not actually take place for the relator to bring a suit.

Watch: Rep. Zwiener and Rep. Leach discuss the disposition of lawsuit awards under HB 7

The Texas model is characterized as a “bounty hunter” or “vigilante” model of law enforcement: it relies on private individuals, who may or may not have an actual connection to the case, to sue the defendant, and it awards the spoils of a successful lawsuit to the relator. The point from the government’s perspective is not to recoup losses, but to prevent the unwanted behavior by scaring potential offenders with the threat of severe financial consequences—delegating the executive branch’s job of law enforcement to the whole world.

This crowdsourced model of law enforcement is the operating principle of HB 7 and SB 8. It is riddled with perverse incentives and vulnerable to abuse. These laws represent a policy roadmap, as Rep. Vincent Perez explained in his speech against HB 7.

Watch: Rep. Perez speaks in opposition to HB 7

This strategy is not exclusively a conservative tool: California, for example, has adopted a qui tam law modeled on Texas’ Heartbeat Law to enforce firearm regulations. But the term “private cause” speaks volumes: the qui tam strategy leverages political polarization and personal passion to extract compliance. A recent Columbia Law Review article summarizes:

[Qui tam] laws are often responding to contentious political debates. The laws discussed so far have dealt with access to abortion care, gun safety, transgender rights, and critical race theory. Each has a more pronounced political dimension than other government regulations like food safety or utility rates. Michaels and Noll argue that these recent enforcement regimes are the latest invention of a surging Christian nationalist movement that has previously transformed federal statutory protections for civil rights and installed reactionary conservative judges throughout the federal judiciary. But one does not have to believe that these laws are part of a larger right-wing plot to acknowledge they almost exclusively touch on culture-war flash points.

President Lyndon Johnson, whose birthday we celebrated on Wednesday, said, “You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered.” HB 7 and SB 8 will do harm even if “properly” administered. The risks these bills pose if they are overzealously administered is incalculable.

At its core, this special session has been animated by ghosts: those irrational prejudices, unfounded fears, and imagined indignities that motivate lawmakers and their constituents to punish adversaries and pursue dominance, instead of seeking peace and prosperity for all people. It’s going to take all of us working together to dismantle the haunted systems and structures keeping Texas from making progress.

Love,