Why I Oppose PDMP and Hope You Will Too

Dear Colleague:

According to the Supreme Court, the “right to privacy” is a “fundamental human right” and “the right most valued by civilized men.” Far from being a mere “emanation” or “penumbra,” the right to privacy finds explicit support in the First, Second, Third, Fourth, and Fifth Amendments to the United States Constitution.

The idea that there are vast spaces in our lives upon which government should not, and, by constitutional and statutory limits, cannot intrude is a fundamental principle of liberty and a quintessentially American idea.

In 1928, Supreme Court Justice Louis Brandeis warned that telephone wiretapping was just the first of many new technologies capable of invading the privacy of Americans:

The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts, and emotions. “That places the liberty of every man in the hands of every petty officer” was said by James Otis of much lesser intrusions than these. To Lord Camden, a far slighter intrusion seemed “subversive of all the comforts of society.” Can it be that the Constitution affords no protection against such invasions of individual security?

      Olmstead v. United States, 277 U.S. 438 (1928), 474, J. Brandeis dissenting.

Justice Brandeis was ahead of his time. The Court held that the Fourth Amendment did not protect telephone conversations intercepted by government wiretap.

It should not be surprising that Justice Brandeis was on the losing side. It often takes government decades to catch up with new technologies and understand their broader implications. 

Nearly 40 years later, Brandeis was vindicated in Katz v. United States, 389 U.S. 347 (1967), a case where the Supreme Court held in a 7-1 decision that warrantless wiretapping is prohibited by the Fourth Amendment. Just a year later, Congress passed the Wiretap Act to require a super-warrant before government could intercept a person’s communications. Then, in 1986, in a minor miracle, Congress got ahead of the computer technology curve bypassing the Electronic Communications Privacy Act, which was designed to give the same protections to electronic communications that already existed in statute for wire and oral communications.

The Wiretap Act and ECPA are just two examples of dozens of how American legislatures have taken action to protect privacy. As Congress put it in the legislative history to the ECPA:

[T]he law must advance with the technology to ensure the continued vitality of the Fourth Amendment. Privacy cannot be left to depend solely on physical protection, or it will gradually erode as technology advances. Congress must act to protect the privacy of our citizens. If we do not, we will promote the gradual erosion of this precious right.

Rather than pass legislation that intrudes on privacy, Congress and state legislatures have consistently enacted statutes to enhance privacy. To my knowledge (with two significant exceptions), federal and state statutory enactments affecting privacy have been almost completely one-sided.

I give you this history as background to why I oppose a dragnet prescription drug monitoring program and strongly believe you should too.

Under PDMPs, all painkiller prescriptions are monitored by government. The tracking occurs whether the Missourian is an innocent 82 year old grandmother with a broken hip or a three-time convicted drug dealer. Because you receive the prescription, government tracks you.

The PDMP logic tree works like this: because some people abuse prescription painkillers, government should track all people who use them – regardless of whether a person has done anything wrong.

When you take a step back, it should not take long to see how absurd this logic is. If it’s acceptable logic for prescription painkillers, why should we stop there? There are a host of public health risks more serious than prescription drug abuse to which the same logic could be applied.

For example, according to the CDC, nearly 2,000 Missourians die annually from alcohol-related deaths, significantly more than drug overdoses. The data are clear: Alcohol is a worse problem for society. If government simply put a tracker in every grocery store in our state, problem drinkers could be identified and deaths avoided. By the logic of trackers of prescription drug monitoring programs, you’re a technophobe if you wouldn’t support such a database. After all, lives are at stake!

How about junk food? Obesity and its related illnesses cost American taxpayers billions of dollars a year in Medicaid and Medicare. Its associated illnesses also kill more Americans than alcohol and drug overdoses combined. Junk food purchases are far less private today than prescriptions. Every grocery store tracks what you buy, and many provide the data to third-parties for internal (or perhaps external) marketing purposes. Because the data are maintained by third-parties and there’s no statutory protection, Americans have no privacy right in their junk food purchases at all. So why not enact a law requiring grocery stores to pass along their data on massive junk food purchasers? The Department of Health and Senior Services could use the information to aggressively target those Missourians who buy too much junk food.

Tanning beds? It took three years to pass legislation in Missouri just to require tanning bed proprietors to get parental consent before allowing a minor to tan. Yet, we also know tanning is a leading cause of skin cancer. It will literally kill you. So why not require proprietors to report the name of every person to use a tanning bed every time they use one? DHSS could use the data to bombard the most frequent users with anti-tanning messages, and we’d likely save some lives.

Smoking? Similar story.

Next, move beyond behaviors that can only harm a single person. If you buy the logic that government should track a law-abiding person’s behavior to save them from themselves, then you must certainly also agree that government should be able to track someone to prevent them from harming someone else. Just put the product into the same logic structure as the PDMP argument: some people will misuse X, therefore government should track all people who use X.

In this second category, government would start with guns. How would you feel if, instead of replacing X with “prescription painkillers,” we used the word “guns?” There may be some Democrats in the House who would be yes votes, but I doubt there’d be a single Republican. And yet, it’s the same argument.

Back to alcohol, some people misuse X and drive cars, therefore government should track all people who use cars. The technology is available to put a breathalyzer in every car. We could eliminate drunk driving accidents by requiring every driver to blow into a breathalyzer every time they started their car. If you’re for a PDMP, you should consider this as well.

PDMP proponents are well-intentioned. We all would like to reduce drug abuse and deaths in Missouri. But we should not do so in a way that treads upon the privacy rights of hundreds of thousands of Missourians who have done nothing wrong.

Until this year, it was PDMP or nothing. This year, however, there’s a better option available. House Bill 1922 protects the innocent and limits a prescription drug abuse database to those Missourians who have actually done something to create the reasonable suspicion that they are a drug abuser. It would work like the problem gambler’s list, and would capture a significant majority of those Missourians whose prescription drug use eventually puts their life in jeopardy.

PDMP proponents have reacted to this non-dragnet approach by arguing it would not be capable of identifying a potential drug abuser before they become one. That is true. But think about the implication of that argument? Do you want to live in a society where government tracks your activities so that it can stop you from doing something you haven’t yet decided to do? I’m confident algorithm-makers think computers can categorize people better than humans. But we’re each more than a computer program, and the thought that government might create a program designed with a “pre-crime” component is scarier than the tracking itself.

There’s also a second key difference that I believe illustrates the absurdity of the dragnet approach. HB 1922 provides that a person whose name is submitted for inclusion on the prescription drug abuse registry has the right to a hearing before being placed on the list. This is not in the bill merely because I think it’s a good idea to give a person the right to prove their innocence. Instead, it is necessary under the Constitution. Putting someone on a list to which a stigma would attach is something for which we must also give them the right to contest. The dragnet approach, on the other hand, does not require any hearing. In this case, when government violates the rights of everyone, it need not make any provision for procedural due process for those who object.

If you have voted no on PDMP in the past, I request that you remain steadfast in your opposition. If you have voted yes, I respectfully ask that you reconsider. You wouldn’t vote to create a government database tracking every alcohol, cigarette, tanning bed, junk food, or gun purchase. And you shouldn’t vote to create a government database for tracking prescription drugs either. Instead of the dragnet approach, signal your support for a targeted list of known drug-abusers. This will allow doctors to cross-check patients they suspect of pill-shopping. It will give recovering drug addicts a tool in their recovery. And it will protect the innocent.

Sincerely,

Rep. Jay Barnes

Serving at the Public Trust Should Require Foregoing Private Profits

Legislators, judges, public employees with decision-making purchasing authority, and members of boards and commissions are all prohibited under current state law from taking actions which might benefit them personally. The reason for the ban on self-dealing is obvious: those who serve in the public trust should not use their positions to make private profits.

Unfortunately, Gov. Nixon’s actions concerning the stadium revealed a hole in Missouri’s ethics laws. Under federal law, members of executive branch task forces are prohibited from self-dealing. Under state law, they are also covered by the Sunshine Law. (See AG Jay Nixon opinions 129-2004 and 143-2003 which he has ignored in his role as governor.) But they are not explicitly covered by the self-dealing statute.

House Bill 2226 closes this large hole in Missouri’s ethics laws. It applies the self-dealing prohibition to gubernatorial task force members charged with rendering advice involving spending your tax dollars. It requires the same task force members to submit personal financial disclosures. On Thursday, it passed the House by a vote of 157 to four. 

Show Us the Letter

Last year at this time, the Nixon Administration claimed it had a letter from bond counsel on which it was relying to justify Gov. Nixon’s belief that he could unilaterally agree to an unlimited amount of debt to fund construction of a new stadium in St. Louis. The Nixon Administration cited attorney-client privilege and refused to release the letter. Last year, I could understand why. The stadium “plan” was ongoing.

On Tuesday, the House Appropriations Committee for General Administration heard testimony on the state’s continuing debt for the Edward Jones Dome – and one of the first questions I asked was about that letter. Specifically, because the stadium plan is dead, I asked whether they would now release the letter which they claimed last year justified their position.

I was met with the same response. Different scenario. Same response. The project is dead. Nixon’s refusal to release the letter supports one of two inferences: either the letter doesn’t say what they claimed; or it doesn’t it exist. In short, I believe the Nixon Administration has misled the General Assembly and the public about the contents or existence of this letter from bond counsel. And, this being the Show-Me State, there’s one simple way to prove me wrong: SHOW US THE LETTER. 

Ethics Bills Move to Senate

On Wednesday, the House passed legislation to ban lobbyist gifts by a vote of 147 to 12. If this bill makes it through the Senate, the days of $500 steak dinners are done.

The vast majority of elected officials begin (and continue) their public service for the right reasons. They serve because they want to improve our state and their respective communities.

Power is a great test of character. Men and women in public service have decision-making authority on issues that affect billion dollar industries – on salaries that are fair, but nowhere near the impact they can have on others.

I don’t believe anyone’s vote has ever been bought for an average priced meal. But I do know of elected officials who have abused the current laws to extract extravagant meals and gifts from lobbyists. And I believe there are some elected officials for whom gifts helped cause them to lose sight of why they were in Jefferson City to begin with.

Elected officials serve at the public trust. We represent you – not ourselves. That’s why in the General Assembly we don’t even refer to members by their name, but instead only by their district or their county.

The same should be true of local elected officials. So this week we added an amendment imposing the same gift ban on every elected official in the state.

Combined, the seven ethics bills passed by the House and the rules changes on sexual harassment, which have already taken affect, will make our Capitol a better place.

Unlike past years, we kept ethics bills narrow this year. In the past, for efficiency, we likely would have rolled all seven of these bills together into an omnibus package. But that path led to failure every time it was tried in the past. This year we resisted the temptation to broaden the scope of each bill. A serious effort at ethics reform requires focused attention. I remain hopeful that the Senate will pass each of these seven bills quickly. 

Nixon’s Speech – The Good, the Bad, the Strange

Some days in the legislature feel like Groundhog Day – in the Bill Murray sense. For me, that’s the case with most Opening Day speeches and the State of the State address. This week, on Wednesday night, Gov. Nixon took the dais for his eighth and final address. I felt waves of deja vu. Gov. Nixon apparently felt this way too – as he recalled his very first SOTS address. , No surprise, he said a few things with which I agree, more with which I don’t, and a few that seemed misplaced.

The Good

Gov. Nixon’s proposed budget includes a two percent pay increase for state employees. And, unlike one previous example, it’s an increase for the entire year. Though I sound like a broken record – I’ll repeat – the key to getting out of the basement of national rankings is to have modest but steady raises.

Nixon also proposed to “expand family-friendly policies like parental leave for state employees.” In the words of Kris Kristofferson, the governor must be reading my mail. Just last week I filed House Bill 2228, which would allow state employees ten days of paid maternity or paternity leave. The House Committee on Government Oversight will hear the bill Monday afternoon.

The Bad

Nixon’s budget is built on a bed of straw. It includes hundreds of millions of dollars from proposed Medicaid expansion that is dead on arrival. He has also asked for $388 million in supplemental funding for Medicaid, which means we were nearly half a billion dollars short in last year’s budget estimates for Medicaid spending and Gov. Nixon is asking the legislature to make up the difference from last year before we even consider next year’s bill.

Nixon claimed that, when he took office, “a lot of talented entrepreneurs couldn’t get access to the capital they needed.” As governor, Nixon takes credit for changing all that. And this year, he’s proposed $10 million for the Missouri Technology Corporation to “help more entrepreneurs innovate and grow right here in the Show Me State.”

State government is not an investment bank – and shouldn’t operate like one either. Deciding which companies and entrepreneurs to favor with capital is something that private investors should do with their own money – or with money that people have entrusted to them. It’s not something that should be done with taxpayer dollars.

MTC has great intentions. It’s just not the proper role of government in a free society. We don’t and shouldn’t ever have Chinese-style “capitalism – with state-sponsored and favored enterprises. Even where there are the best intentions, the fact is that you’re taking taxpayer money, giving it to a group of unelected people, and requiring them literally to pick winners-and-losers. The right place to secure capital for a new business is a bank – not government.

The Strange

Gov. Nixon surprised everyone when he encouraged everyone to “work together to protect kids and consumers by reining in the billion-dollar daily fantasy sports industry.” Nixon says daily fantasy sports are unregulated gambling. If Missouri’s going to legalize it, Nixon says we need to regulate it.

I happen to agree with his legal analysis. Daily fantasy sports are far more a game of chance than poker – and poker is considered gambling. The strange thing is – if Nixon’s legal conclusion is right, then the General Assembly doesn’t have the authority to legalize it because our state’s prohibition on gambling is in our state Constitution, not our state statutes. If fantasy sports websites want certainty in Missouri, a question for the ballot is the only way they’re going to get it.

The Week Ahead

 

On Monday, the House Committee on Government Oversight and Accountability will hear my bill on parental leave for state employees. The Committee on Conservation and Natural Resources will hear  House Bill 1782, a bill that would require the Department of Natural Resources to sell land in Oregon County that it illegally diverted from counties in the lead belt that suffered environmental harm from the now bankrupt ASARCO. On Wednesday, the Committee on Health and Mental Health Policy will hear House Bill 1923, a bill nearly identical to one I sponsored last year but came up just short of passing as a result of the end-of-the-year filibuster.

In floor action, I anticipate the House will take up and pass three more ethics bills – a ban on lobbyist gifts, a prohibition against candidates using their campaign funds for exotic investments, and a bill to ensure that state laws against self-dealing also apply to members of executive task forces charged with recommending policies that involve spending your money.  

Ethics Package Must Include Nixon Too

In his opening remarks last week, Speaker Richardson pledged that the House would pass a package of ethics bills at the earliest opportunity. This week, we delivered. On Monday, the House Committee on Government Oversight and Accountability heard and passed four ethics bills. On Thursday, the House passed them on to the Senate.

The first two bills increase transparency by requiring additional financial disclosures by members of the General Assembly. Under current law, elected officials must disclose their outside employment and financial interests, as well as all honorariums, travel, and lodging paid for by a third party once a year. Examples of out-of-state travel and lodging include gubernatorial trips to foreign countries that include members of the General Assembly and are paid for by the Hawthorn Foundation, or a meeting of the National Conference of State Legislatures.

House Bill 1452, requires that personal financial disclosures must be filed twice annually. House Bill 1575 requires that out-of-state travel and lodging disclosures must be filed within 30 days of the travel. Both of these bills ensure timely public disclosures.

The late Auditor Tom Schweich explained that corruption was not limited to outright bribery or self-dealing. That the more pervasive form of corruption was the “short-circuiting” of the ordinary political process through undue or improper influence. You might call this “type-two” corruption. That’s the aim of the other two bills.

House Bill 1983 prohibits elected officials from working as paid political consultants for fellow members or statewide candidates. There are recent examples of powerful members of the legislature working for other members – for pay. These relationships drive the perception if not actual conflicts of interest.

Finally, House Bill 1979 closes the revolving door by requiring legislators to wait one year before working as a paid lobbyist. It also prohibits legislators from soliciting people for a lobbying job while they are still members.

These four bills were passed out of the House on the first possible day. In most years, there is little to no floor activity in the first, second, or even third weeks of session. This year, the ethics bills packed the schedule. And it’s only half-time.

Next Tuesday, my committee will hear its second batch of ethics bills. House Bill 2165 prohibits former legislators from working as lobbyists until they liquidate their campaign accounts – even with the one year waiting period. House 2166 bans lobbyist gifts. House Bill 2203, which I sponsored, requires that campaign funds be liquid – held in savings accounts or short-term investments, and may not be used to invest in businesses or hedge funds.

Finally, House Bill 2226, which I also sponsored, adds members of executive branch task forces and advisory committees created for the purpose of recommending public policy involving the spending of taxpayer money to the list of officials prohibited from self-dealing. Under current Missouri law, executive branch task force officials are covered by the Sunshine Law, but not§105.452‘s prohibition on self-dealing. Under federal law, executive branch task force members are prohibited from using their public position to make a private profit. If they violate the law, they are subject to five years in prison. See 18 U.S.C. § 208.

HB 2226 fixes this oversight. Regardless if one is a legislator, department director, board and commission members, or a specially designated member of a gubernatorial task force, no person in a position of public trust should ever be permitted to obtain a special monetary benefit from their public actions – whether directly from taxpayers or from any other source.

Though it didn’t make his list of ethics priorities, I am hopeful that Gov. Nixon would agree with this simple premise: when one decides to accept a public position, they must also forego any personal profit that might be derived from their public position. To do anything less would violate the public trust placed in them. HB 2226 ensures that this fundamental rule of government ethics applies to task force members empowered with the authority to make key recommendations on the expenditure of taxpayer funds.

Looking at all these bill numbers might make you feel like you’re reading a telephone book. Why so many? It’s a matter of legislative and legal strategy. If insanity is doing the same thing over and over again expecting a different result, then those interested in passing ethics reforms bills in Missouri would be insane to try to put them all together in a single bill. We know from past experience that’s how ethics bills die.

As for the legal strategy, several of these bills affect political speech and the right to petition government. As fundamental rights explicitly included in the First Amendment, they are protected by strict scrutiny analysis. They must be narrowly tailored to further a compelling governmental interest. There’s no doubt that curbing corruption is a compelling interest. But to ensure bills meet the narrowly tailored requirement, we must sometimes choose to do less than we might otherwise like.

I expect that the second half of bills will make their way to the Senate within the next few weeks. After that, it’s in the Senate’s hands. With the leadership of President Pro Tem Ron Richard and our own Senator Mike Kehoe, I’m more confident than ever that several (and hopefully all) of these bills can make it across the finish line.

Ethics Reform and Its Limits

The late Daniel Patrick Moynihan famously noted, “The central conservative truth is that it is culture not politics that determines the success of a society. The central liberal truth is that politics can change a culture and save it from itself.”Conservatives,generally, better appreciate the permanence of human nature. As the great Russell Kirk said, we distrust “sophisters, calculators, and economists who would reconstruct society upon abstract designs.” We understand that no law ever passed or rule ever created will make the world a perfect place.

Liberals on the other hand, believe laws and rules can “fix” things. By setting a standard, government can set the bar by which actions are judged. Government, in other words, can change that which is considered morally unacceptable – before the larger culture accepts the change. Of course, the opposite is true as well. Government can pass laws that move the culture to cause more people to accept behavior that was previously unacceptable.

These truths conflict in theory, but blend together in reality. Only the most rigid ideologues would completely deny the “central truth” of the opposing ideology.

As the General Assembly convened this week, “ethics reform” was the hottest topic. In his opening day address, House Speaker Todd Richardson reminded the body, “When you take to this floor, you are not here as an individual. We hold these offices in a public trust. They are not ours. They are the people’s.” The House, he continued, is bigger than its members, individually and collectively. “It existed for centuries before we were here. And God-willing, it will exist for centuries after we are gone.”

For a small minority though entirely too many members, service in the General Assembly ends up being the worst thing that ever happened to them. With many lobbyists and others offering gifts and massaging egos, it is all too easy for a person to lose their sense of perspective and propriety.

It’s made worse in our state by the lack of ethics law. By objective measures, we  have the worst ethics laws in the entire country. On Thursday, the very first day on which he could refer bills, Speaker Richardson sent every ethics bill filed to the Committee on Government Oversight and Accountability, of which I am the chair.

In turn, I have immediately scheduled hearings for this Monday on seven of the most important bills – the very first day on which the bills could be heard. Departing from normal practice, it is my intent to vote several of them out of committee the very same day, and it is my hope that those will be taken up on the House floor by Wednesday – the first day on which any bill could be taken up under our rules. The rest will be taken up within the next few weeks.

Speaker Richardson understands and agrees with the central conservative truth. “There is no rule or law that can make our imperfect process perfect,” he said. However, “we can, and we must, work to improve the culture here in the people’s Capitol.”

And that goes beyond passing laws or creating new rules. On a personal level, I believe every member should strive to leave public service as a better person than when they entered it. And we must also strive to leave the institutions of government better than they were before we arrived.

I have the benefit of serving in my own community. Unlike others, I get to sleep in my own bed every night. And I also get to enjoy the daily frustration of the shared parenting duties – like coaxing one kid to eat anything green, reminding another to stop leaving her dolls all over the house, and convincing a third that there are only a few places in the house where it’s okay to dribble a basketball (on this there might be some parental disagreement). Raising children is a daily exercise in humility. It’s also a daily, tangible reminder of the things that are really important in life.

It is a tremendous honor and privilege to continue to serve as your state representative. As in past sessions, I will continue to do my best to represent you in a way that you can respect – even if we disagree on some issues (and, with my willingness to speak and write about so many issues, there must be something on which we disagree). To me, that means being forthright and outspoken in defense of constitutional freedoms, equality under the law, and limited government. It also means never being among those “cold and timid souls who know neither victory nor defeat.”

Local Reps Win Polls

Local Reps Win Polls 

Dave Drebes of MoScourt.com conducted his annual best of the legislature poll two weeks ago – and three mid-Missouri representatives were winners. Rep. Caleb Jones was voted “legislator to call when you need to pass a bill in the House.” Rep. Travis Fitzwater was voted “House freshman most likely to be Speaker someday.” And I won the vote for “Best on the floor in the House.”

Random Thoughts in October

Why I Fight

Last week, I received an email from someone whose opinion I respect. “Stop throwing rocks,” they said, regain your focus. In one sense, that emailer was correct. Throwing rocks just for the sake of throwing them – might seem like fun, briefly, but it’s a waste of time. But tough (even harsh) criticism pointing out abuses of power or bad government? Or outlining why I’m going to take certain actions and ask others to join me? That’s different.

There are two, opposing ways to do this job. The first is to avoid controversy, push the right button at the right times, and never venture out on a limb you don’t have to. Nothing risked, nothing gained. The second is to be outspoken, to never back down from a just fight, and constantly push public policy in ways to improve our state. Most legislators fall somewhere in the middle. I’ve purposefully chosen to be an outlier.

On Political “Bullying”

After the passing of Tom Schweich, there was an outcry over nastiness in politics – and many public pledges against it. Former Sen. Jack Danforth’s eulogy lamented that “politics has gone so hideously wrong” that we risk it becoming a place “only for the tough and the crude and the calloused,” and that, when politics becomes a place where those who serve face personal attacks at every turn, “what decent person would want to get into it?”

In the wake of the failure to override Gov. Nixon’s veto of the right-to-work bill, a new round of hand-wringing started over alleged “bullying” of Republicans who voted no. There’s a big difference, however, between personal attacks and the ordinary policy disputes necessary for a functioning democracy.

Votes in the Capitol sometimes have political consequences. Those who have pledged to oppose Republicans who supported Gov. Nixon’s veto are not bullies. They’re exercising their right to petition their government and to take part in the democratic process.

There’s certainly a chance that they will reach too far. For evidence, look no further than the last judicial election in Cole County in which a judge was repeatedly attacked as being soft on sex offenders for the audacious act of doing her job – striking down an obviously unconstitutional bill that attempted to retroactively punish people. (The Constitution is not a Chinese buffet. We don’t get to ignore the parts that aren’t politically popular at the moment.) But right now, the right-to-work reaction is politics as it has always been and should always be. It’s a policy conflict with potential electoral consequences.

The ASARCO Settlement Dispute Continues

What does “in connection with” mean? That’s the biggest legal question regarding the Department of Natural Resources’ plan to spend money obtained in a settlement for environmental damages in the Big River on land in Oregon County on the Eleven Points River in a completely different watershed. The settlement agreement says the money for pollution in the Big River must be spent on projects “in connection with” the Big River.

Since my column two weeks ago, there’s been significant activity. First, the Department and other trustees for the ASARCO settlement held a public hearing in the impacted area. To my knowledge, not a single person spoke in favor of their plan. Second, there was a public hearing in Oregon County where, again, not a single person spoke in favor of DNR’s plan.

In Oregon County, State Sen. Mike Cunningham informed the Department that if it proceeded with plans to purchase land in Oregon County, he would sponsor legislation to sell it. His opposition was joined by U.S. Rep. Jason Smith, who represents parts of both the area actually impacted by the ASARCO pollution and Oregon County. “As much as the governor’s administration may want to stake their legacy on this land, the agreement is clear,” Smith has said. “Oregon County is outside the impact area. Misusing these funds is a violation of the settlement agreement and the public trust.”

The House Committee on the matter will meet in a matter of weeks. I remain hopeful that the Department will consider the overwhelming public opposition both where the money should be spent and where it’s planned to be spent and go back to the drawing board. If it doesn’t, it’s not difficult to see where this is going. Sen. Cunningham’s bill will pass. Gov. Nixon will veto it. And the General Assembly will override it with more than 115 votes.

Nixon Flaunts the Sunshine Law

This is a significant public policy proposal that deserves to be seen in public, talked about in public – not delivered as a cooked fish for dessert.”

That’s what then-Attorney General Jay Nixon said on February 15, 2006 when he sued the Missouri Higher Education Loan Authority to shed light on plans to sell $2.4 billion in student loan assets in hopes of generating $450 million to be spent on state colleges and universities. Nixon’s lawsuit was filed less than a month after then-Gov. Blunt announced the MOHELA plan.

Nixon’s lawsuit contended that, at the direction of Gov. Blunt’s office, the board participated in an illegal “hub-and-spoke communication approach to avoid having a meeting.” As reported by the Associated Press, Nixon argued that what MoHELA board members claimed were private discussions actually fell under the Sunshine Law. “It is clear that there were numerous communications of multiple types,” Nixon said. “It is clear the public did not receive the light of the sun they deserve.”

Oh, what a difference a move across the street makes.

By summer of last year, it was clear that Stan Kroenke wanted out of his lease at the Edward Jones Dome. And one of Jay Nixon’s hand-picked stadium task force members had an idea, “Think about how we can create an entity that can … make proposals and avoid the Sunshine Laws until such a time that we’re far enough along to have a real idea to share publicly,” he wrote in an email to the St. Louis Mayor’s Chief of Staff.

Gov. Nixon was all too happy to play along with the plan to avoid the Sunshine Law. In November 2014, he appointed a two-person task force “to conduct an analysis over the next 60 days on the current situation regarding the St. Louis Rams and provide a briefing to the Governor on options to ensure that St. Louis remains an NFL city for years to come.”

That task force never held a public meeting, but it produced a report in January that Gov. Nixon praised. Though Nixon said it was the task force’s “final proposal”, the task force, in fact, still exists. The two-man team is everywhere in the news. They reportedly continue to meet with Gov. Nixon,  St. Louis city leaders, and NFL officials. They have a sharp website, where they claim that they exist because, “Gov. Jay Nixon has formed a task force to develop plans for an NFL stadium project on the North Riverfront of downtown St. Louis.”

On Tuesday, the Task Force sent their stadium plan – called a “term sheet” to NFL owners. Unfortunately, as the P-D reported this week, “the exact terms remain a mystery to the public.” In 11 months of existence Gov. Nixon’s task force has compiled a plan to spend $1 billion, including more than $400 million from public sources. They’ve submitted the details of their proposal to NFL owners. But they’ve never bothered to hold a public meeting or steadfastly refuse to release details of their plan.

What would Attorney General Nixon have said about such an arrangement?

The record from his time in the AG’s office leaves no doubt. He would have filed a lawsuit and ran to a microphone as fast as he could have. In AG Opinion 129-2004, Attorney General Nixon was asked whether a task force formed by a superintendent was a public governmental body subject to the Sunshine Law. Nixon’s response was clear. “Regardless of the label used to describe it,” Nixon opined, “the superintendent’s task force was an ‘advisory committee’ [subject to the Sunshine Law under § 610.010.4(e)] because it was “a body of persons delegated to consider, investigate, or take action upon and usually to report concerning some matter or business.” Nixon pointed out the committee “was formed for the purpose of advising the superintendent and indeed ha[d] provided such advice.”

In AG Opinion 143-2003, Attorney General Nixon was asked whether a Citizen Advisory Committee appointed by a city to make recommendations about land use was subject to the Sunshine Law. No surprise, AG Nixon said that it was, and went further, explaining that all communications concerning the subject of the committee’s work is subject to the Sunshine Law.

Attorney General Nixon was right. Governor Nixon is wrong. Power corrupts. Gov. Nixon’s mistaken belief that he has absolute power corrupts absolutely.

MoHELA settled the lawsuit with Gov. Nixon in December 2006. Nixon won – but, more importantly, the citizens of Missouri won, because Nixon had the guts to enforce the Sunshine Law. Today, he openly flaunts it.

House Speaker Todd Richardson to Inform Gov. Nixon of Opposition

In other stadium news this week, the Associated Press reported House Speaker Todd Richardson will send a letter to Gov. Nixon which “slams a plan to use state money for a new St. Louis football stadium without lawmaker or voter approval.” In clear terms, Richardson writes, “We will oppose any proposal that undermines the authority of the Missouri General Assembly and the will of the people. We will not stand idly by as the people of this state are committed to millions of dollars in debt without proper legislative approval or a public vote.”

Sounding like a broken record, I added, “There is zero chance that the General Assembly will appropriate the funds for a new stadium.” Why? Because this General Assembly opposes welfare for billionaires.