Author Archives: jaybarnes5

The Chinese Buffet Analogy Returns

Shall the Missouri Constitution be amended to include a declaration that the right to keep and bear arms is an unalienable right and that the state government is obligated to uphold that right?

That’s the official question that Missouri voters will consider at the August primary election. But the questions behind the question are: Should we put an asterisk by the Second Amendment or should laws that impact Second Amendment rights be subject to the same rigorous judicial scrutiny as laws that impact the First Amendment and other fundamental rights?

In particular, this initiative, sponsored by Sen. Kurt Schaefer (R-Columbia), would amend Article I, Section 23 of the Missouri Constitution to require laws which restrict Second Amendment rights be subjected to “strict scrutiny” – the same legal test applied to defend freedom of speech and equal protection regardless of a person’s religion, race, or nationality.

Under the strict scrutiny test, a law only survives constitutional challenge if it is justified by a compelling governmental interest and narrowly tailored to achieve that goal or interest.

The United States Supreme Court has consistently applied the “strict scrutiny” test to rights it deems fundamental – those which are “implicit in the concept of ordered liberty” or “deeply rooted in this Nation’s history and tradition.”

For over a century, however, the Supreme Court did not consider any cases which required it to determine whether the Second Amendment was just such a “fundamental right.” Then, in 2008 and 2010, the Court decided the respective cases of Heller v. Washington, D.C. and McDonald v. Chicago.

In Heller, the Court struck a D.C. ordinance that prohibited the possession of handguns for nearly all residents. But because Heller involved an entity of the federal government and not a state, the Court did not directly decide whether the Second Amendment’s right to bear arms was a fundamental right that would be applied to the states.

Two years later, in McDonald, the Court struck a similar gun ban from Chicago. In the process, it took the next step, and held that the right to bear arms is a fundamental right. As explained by Justice Alito, “Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and … individual self-defense is the central component of the Second Amendment right.” Moreover, the Second Amendment, the Court found, is “deeply rooted in this Nation’s history and tradition.” In fact, it predates the United States. In 1689, the English Bill of Rights includes its own version of the Second Amendment – and in 1765, Blackstone described the right to keep and bear arms as “one of the fundamental rights of Englishmen.” Our Founding Fathers agreed and included the Second Amendment in the Bill of Rights.

Though it struck the gun bans in question in both Heller and McDonald, the Court declined to apply the same strict scrutiny test that applies to other fundamental rights. In Heller, Justice Scalia confessed to the gap that the Court was leaving in constitutional law, writing that, “since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than … our first Free Exercise Clause case left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications.”

Over the past two legislative sessions, I’ve frequently commented that our Constitution is not some cheap Chinese buffet where we pick-and-choose the provisions we like, and ignore the ones we don’t. That remark was made in the context of HB 436, a plainly unconstitutional bill that attempted to nullify all federal gun laws and criminalize their enforcement by federal or state law enforcement officials. As explained by Robert Levy, chairman of the Cato Foundation (the organization that found the plaintiff and funded the lawsuit in Heller v. D.C.), “With the exception of a few really radical self-proclaimed constitutional authorities, state nullification of federal law is not on the radar scope.”

The Chinese buffet explanation holds true here as well. Though some gun control groups may wish it weren’t so, there is no asterisk by the Second Amendment that permits courts to consider it a lesser part of our Constitution. For our state constitution, Amendment 5 fills the gap left by the Supreme Court decisions in Heller and McDonald, and ensures that, at least in Missouri state courts, Second Amendment rights will be accorded the same deference as every other fundamental right. I’m hope you’ll join me in standing up for the Second Amendment in August by voting Yes on Amendment 5.

Finally Free of the Veto Spree

Gov. Nixon concluded his annual legislative review this week. After spending January to May as a second-floor spectator, Gov. Nixon burst into action the past two months. In total, Nixon signed approximately 133 bills, punted on two, and vetoed a personal-record 33 bills. He fell two bills shy of the veto record for a single session – set by Gov. John Dalton in 1961.

Whether an override is attempted on any particular bill is determined by several factors. Among others, (1) how many votes the bill received during regular session; (2) whether Gov. Nixon raised a point in his veto message that wasn’t previously considered by legislators; (3) whether Democrats who voted for the bill in regular session are likely to stick with it over the governor’s veto; (4) whether other “more important” parts of a vetoed bill were signed into law through other bills; (5) if the vote total is close, how important the bill is.

Last year, the General Assembly set a record for veto overrides. With even more vetoes this year, it’s possible that the record will be broken again. This year, there are just over 20 bills that passed with super-majorities, or were very close. That said, it’s too early to tell how many override attempts will be made. I agree with Senate Majority Leader Ron Richard, who told the Post-Dispatch this week that lawmakers should carefully consider the bills “one at a time.”

Missouri-Based Education Standards

Gov. Nixon signed House Bill 1490 this week, which will require that the Common Core standards adopted by the State Board of Education undergo a rigorous review by Missouri educators and parents. This bill was passed due to concerns about the wholesale adoption of quasi-federal education standards with inadequate vetting at the state level.

Though some opponents of Common Core argued that the state should abandon the standards altogether, such a plan was not feasible, given all the work that the State Board and local districts had already completed to transition to the new standards. Abandoning the standards at this late date would have effectively left Missouri schools with no standards at all.

, I am generally leery, regardless of the issue, when state government adopts someone else’s rules or standards wholesale – whether those rules or standards come from the federal government, uniform laws proposed by the American Bar Association, or, in this case, from a consortium of states and education groups. When considering whether to import standards created by outsiders, it’s important for state government to go line-by-line through each proposal to ensure it’s the best policy for Missouri. And that’s exactly what House Bill 1490 is designed to do.

For those interested in Common Core, I encourage you to review primary source materials over secondary sources of commentary. The actual standards can be found at www.commoncore.org/read-the-standards. Also, the suggested readings and problems for English language arts can be found atwww.corestandards.org/assets/Appendix_B.pdf.

Encouraging Ag and Vo-Tech Education

Our public education system serves many purposes. It helps ensure an informed citizenry. As Thomas Jefferson explained, the “diffusion of knowledge among the people” is the surest foundation “for the preservation of freedom and happiness.” It promotes equality of opportunity by providing a structure through which any child, regardless of their parents’ income or social status, can improve their lot in life.

It should also aid future economic vitality by preparing students for the real world. While we should strive to create an education system that prepares every child for college who desires  and works appropriately to get there, education policy is often overly-focused on college prep.

Look around you. Not every job requires a college education. And, though a college degree has been proven to lead to higher income, not every good job requires a college education either. The world will always need carpenters, plumbers, farmers, welders, electricians, machinists, and mechanics – to name just a few.

After ensuring basic education in civics, math, English, and science, it doesn’t make much sense to have identical graduation requirements for students interested in these career fields as those for students who want to go to college. I believe our education system should do more to prepare students who want to enter the workforce immediately.

House Bill 1189, sponsored by Rep. David Wood (R-Eldon), is a small step to encourage  agricultural and vo-tech education for the right students. . This bill requires the Department of Elementary and Secondary Education to allow students to count district-approved agriculture or vo-tech classes to replace one unit of academic credit in math, science, social studies, or English for any class that doesn’t require an end-of-course statewide assessment.

The Missouri Student Religious Liberties Act

Missouri students shouldn’t be required to check their religion at the door or argue points-of-view contrary to deeply-held religious beliefs in order to pass. Sometimes, however, local schools quash student religious expressions out of concern that allowing them violates the Establishment Clause of the First Amendment. American courts have been clear, though, that schools do not have to be religion-free zones. In fact, while a public school cannot endorse or require any religious activity, they also can’t discriminate against religious viewpoints.

This week, Gov. Nixon signed legislation to protect the religious beliefs of Missouri students by putting these First Amendment standards into Missouri statutes and requiring schools to adopt policies consistent with those standards.

House Bill 1303, dubbed the Missouri Student Religious Liberties Act and sponsored by Rep. Elijah Haahr (R-Springfield), protects the religious beliefs of Missouri students by putting these First Amendment standards into Missouri statutes and requiring schools to adopt policies consistent with those standards. Under HB 1303, schools must treat religious speech and activity in the same manner that they treat non-religious groups and non-religious speech. They must also allow students to express religious viewpoints in assignments – and grade those assignments by traditional academic standards regardless of the religious viewpoint expressed.

The bill was drafted to match existing First Amendment cases that protect students. As Haahr explained to the Missouri Times, “If there’s a 15 minute break … and students want to organize, on their own, a brief prayer … that’s something that is permissible under existing case law, but sometimes schools are stopping those things from happening because they believe they are crossing a line.”

The bill passed by overwhelming bi-partisan margins in both the House and Senate, and was signed into law this week by Gov. Nixon.

Deer, Life, and Food Pantries – But Not in That Order

Choose Life

On the issue of life, Gov. Nixon has flip-flopped for three decades. As a state senator in a relatively rural district, he declared himself pro-life. Two years later, in a run for the U.S. Senate, he continued to stand for the unborn. Then, when he decided to run for Attorney General, he evolved. As Governor, he has abstained – thrice refusing to veto pro-life legislation and instead letting the bills become law without his signature. Last week Gov. Nixon abstained no longer when he vetoed House Bill 1307, which would extend the waiting period for an elective abortion in Missouri from 24 to 72 hours. Increasingly his custom, Gov. Nixon sent an angry veto message to the legislature.

Like trains passing on a moonless night, the opposing sides of the life issue travel on parallel tracks. For those who are pro-choice, abortion is an act of freedom often because either they do not recognize the existence of a human soul inside the would-be mother or they substitute the would-be mother’s beliefs about the moral value of that life for God’s. To the pro-choicer, there’s only one person involved – and that is why the issue is often framed solely as one of women’s rights.

For those who are pro-life, of course, there’s much more to it than that. We believe that a human soul is created at conception  — and that the moral value of that human soul is not dependent on anything other than its very existence. In an abortion, there’s not just one soul at risk, but two.  And one of those souls is defenseless.

The Supreme Court has made it clear that states can enact abortion regulations to encourage citizens to choose life – so long as they do not impose an “undue burden” on abortions. Courts have upheld 24 hour waiting periods, and I believe they will uphold a 72 hour waiting period as well.

House Bill 1307 addresses our moral obligation to protect the vulnerable and innocent by building additional reflection time into the process before deciding to go through with an abortion. The change is grounded in the hope that a little extra time may save lives of the unborn. In regular session, the bill passed in the Senate with one vote short of a veto override (with one Republican absent) and with a few extra votes in the House. It’s going to be close, but it presently appears that an override is likely.

Food Pantry, Pregnancy Resource Center, and Maternity Tax Credit Overrides

On Wednesday, Gov. Nixon vetoed House Bill 1132, a bill that would increase the tax credits available to food pantries, pregnancy resource centers, and maternity homes by $1.5 million per year. These tax credits help charitable organizations like the Samaritan Center and the Pregnancy Help Center here in Jefferson City serve food and provide maternity services to Missourians in need. Better yet, its structure as a public-private partnership  increases fundraising and makes success more likely because these organizations have deeper community support than straight government spending. The bill passed by wide bi-partisan margins of 30 to 1 in the Senate and 121 to 25 in the House. This bill will be overridden.

Are Deer Livestock or Game?

On Tuesday, Gov. Nixon vetoed two bills designed to transfer authority for regulating captive deer from the Department of Conservation to the Department of Agriculture under the theory that captive deer are livestock not wildlife. This is a complicated controversy years in the making.

For years, Conservation has been concerned about the spread of chronic wasting disease (CWD) in Missouri’s deer herd. The Department’s biologists believe captive deer and, more precisely, the frequent influx of out-of-state deer to these facilities, is a prime cause of the disease. On the other side, Missouri deer-breeders vigorously dispute that their operations cause or spread CWD.

In their efforts to prevent further incidents of CWD, the Conservation Commission proposed a set of stringent rules for captive deer. Some of these rules are likely unconstitutional, in danger of being struck by courts as arbitrary and capricious, or because they amount to a regulatory taking of private property without just compensation.

Every action has a reaction. Before those rules were published, a few bills started moving in the legislature. After the rule, the bills really grew legs.

I voted no because Article IV, Section 40(a) of the Missouri Constitution grants the Conservation Commission the exclusive authority to control, manage, restore, conserve, and regulate “bird, fish, game, forestry, and all wildlife resources of the state.”

Are deer game, wildlife, or livestock?

Missouri’s deer-breeders claim they are just livestock because they’re kept in an enclosed space, raised from birth, and tame. They argue, “How can they be wildlife when they’ve never been outside captivity?” But there are two responses to this. First, an originalist response – that, for purposes of Article IV, Section 40(a), “wildlife” means those animal species that were wildlife in Missouri in 1936, when the provision was added to the Constitution. Second, “wildlife” is not all that Conservation has exclusive authority to regulate. Conservation’s constitutional mandate extends to “game” as well. Many deer-breeders in Missouri run their operations for hunters to shoot deer on their ranches. When a word is not defined in the Constitution or a statute, courts look next to the dictionary for a definition. Merriam-Webster’s online dictionary defines “game” as “animals under pursuit or taken in hunting.” I believe this common sense definition is fatal to the deer-breeders constitutional argument for those breeders who market their ranches for hunting and who raise deer to be sold to hunting ranches.

Unfortunately, the bills that passed also included several other non-controversial and important provisions for Missouri agriculture. The bills had 107 votes in the House – two shy of the magic veto override number. I am confident that the deer-breeders will sue to invalidate Conservation’s regulations, and I hope they are successful for those that are arguably arbitrary and capricious. In the legislature, I predict a tough fight for an override, but one that will ultimately come up short.

The Budget Bludgeon Returns

On Tuesday, Gov. Nixon announced $786 million in budget vetoes and withholds. Then he blamed the legislature for ruining the economy through inaction on Medicaid and a series of sales tax bills passed in the last week of session.

Gov. Nixon is dead wrong on the first charge. And mostly wrong on the second.

First, let’s go back to January – when Gov. Nixon proposed a budget that was an estimated $310 million in the red. The cause of Gov. Nixon’s deficit was nearly evenly split between his own delusional  estimates of economic growth ($160 million) and his insistence that the legislature bet the budget on future revenue increases from long-shot policy proposals ($150 million).

The legislature did the right thing and declined to follow Gov. Nixon’s irresponsible budget. Instead, we took a conservative approach, refusing to roll the dice on bills that weren’t yet law. In the end, we passed a budget that was significantly smaller than Gov. Nixon’s proposal. 

Gov. Nixon’s actions this week cut even further. If the legislature had agreed to Gov. Nixon’s pie-in-the-sky-spend-it-fast budget proposals, this week’s vetoes would have been $310 million more.

Slow economic growth right now has nothing to do with the legislature’s failure to pass a Medicaid bill during this past session. Putting aside any beliefs on Medicaid’s impact on the economy, even if the legislature had passed such a bill, it could not have been implemented in time to have any impact on the economy today. In fact, the only bills worth discussing would require extensive waivers from the federal government to allow Missouri to re-invent Medicaid in a free market conservative mold – and negotiations on those waivers would take months.

Second, Gov. Nixon has overstated the costs of many of the sales tax bills that he vetoed. He pins the collective cost of those bills at $776 million. But officials in the Nixon administration were singing a different tune during the past legislative session – or, in some cases, not singing at all. On most bills, Gov. Nixon was AWOL. On other bills, his officials indicated cost during session which was significantly less than the cost claimed in Gov. Nixon’s veto letters.

With his actions this week, Gov. Nixon returned to the tactics of last summer when he withheld millions of dollars in education funding to scare legislators away from voting to override his veto of an income tax cut. When a chisel or hammer might be needed, Gov. Nixon never fails to bring a bludgeon.

It’s an open question whether the legislature will override any of the sales tax vetoes. But it won’t be the result of the bullying bludgeon strategy. Instead, Gov. Nixon’s veto messages identify ambiguities in several of the sales tax bills which should cause serious concern..

For example, Senate Bill 612 provides in part that the Department of Revenue must notify taxpayers anytime sales tax is applied in a new way to goods or services before taxes can actually be collected. Everyone should agree this is a good concept. The devil, however, is in the definition of “notify.”  Gov. Nixon’s veto letter identifies an ambiguity that could be construed to make the measure cost as much as $200 million per year. While I doubt Gov. Nixon’s price tag, unlike his Chicken Little argument on alleged ambiguities in this year’s income tax cut bill, he has a point with SB 612. 

A Wait-and-See Approach to Local Budget Vetoes and Withholds

Tucked among Gov. Nixon’s 213 separate budget actions were several items which impact mid-Missouri. He line-item vetoed $6 million to convert St. Mary’s into a new state office building and money for maintenance and upkeep at the state capitol. He’s also withholding money for the state employee pay raise and deferred compensation contributions. With regard to the vetoes, I will work with colleagues from mid-Missouri, including Sen. Kehoe and Rep. Bernskoetter to try to override Gov. Nixon’s decisions. I’m particularly disappointed in his decision for St. Mary’s – an idea for which he joined Sen. Kehoe, Rep. Bernskoetter, and myself in early January to announce his support – and one which would save the state money over the long-term and improve education opportunities in mid-Missouri. Regarding the withholdings, I’m cautiously optimistic that the money will be released later in the year – after veto session.

Where’s Gov. Nixon’s Plan for Education?

Gov. Nixon also vetoed the most substantive education reform bill that the legislature has passed in 20 years. I’ve written several times on the substance and potential impact of Senate Bill 493. It was designed to give students in struggling districts the same opportunities that students in affluent areas enjoy. While Gov. Nixon armchair quarterbacks SB 493, he still hasn’t put forth his own proposal. It’s far easier to take shots at the players from the comfort of his office on the second floor than to put on the pads and enter the arena of ideas.

Nixon Veto Will Lead to Future Unemployment Tax Hikes

Those who ignore the past are destined to repeat it. Sen. Kehoe had that adage in mind when he sponsored legislation this year to reform Missouri’s unemployment benefits system.

Unemployment benefits are a forced short-term insurance plan administered by the government to guard against the temporary setbacks of workers who lose their job through no fault of their own. To administer unemployment benefits, government takes money from working Missouri employees by taxing Missouri employers to give short-term payments to eligible Missouri workers.

Unemployment benefits are different from typical federally administered social welfare programs because they are funded almost entirely by the state. When the economy is humming, the UI Trust Fund collects sufficient taxes to pay ongoing claims. But when the economy slows, Missouri’s UI Trust Fund has a history of falling behind. When that happens, Missouri goes hat-in-hand to the federal government for a loan. In the last recession, Missouri joined 35 other states in the beggar’s line. Ultimately, Missouri borrowed more than $700 million. Consequently, Missouri employers were hit with an additional tax of approximately $84 per employee.

Senate Bill 673, which I carried in the House for Sen. Kehoe, would help Missouri avoid this spend-borrow-tax trap in three ways. 

First, it would require the state board, which oversees the UI Trust Fund, to consider bonding as an alternative to borrowing from the federal government. In the last borrowing cycle, the board refused to even consider the idea. However, in future scenarios, it may be cheaper for Missouri employers to bond debt over a longer period of time rather than face steep tax increases in the short-term and in the middle of a recession. In this regard, SB 673 merely ensures that the board considers all options.

Second, it would increase the amount the UI Trust Fund would keep in reserve from $750 million to $870 million before reducing the unemployment tax. The rationale, naturally, is that the larger the cushion, the less likely the state will be asking the feds for a loan. 

Third, SB 673 would tie the length of unemployment benefits to the unemployment rate. Under current law, recipients are able to receive benefits for 20 weeks. Under SB 673, eligibility would be shortened as Missouri’s economy improved. If the unemployment rate fell below 6 percent, benefits would only be available for 13 weeks. This would reduce payouts from the UI Trust Fund and make future borrowing less likely.

Unfortunately, Gov. Nixon vetoed SB 673 this week. In his veto message, Nixon argued that the bill was no longer necessary because the UI Trust Fund just recently (and finally) repaid the loan it received from the feds in the last recession. In this Gov. Nixon is like a homeowner who rebuilds in the same flood plain without a levee or any other protective measure. “The water has receded,” Gov. Nixon proclaims, “We don’t need a levee!”

Gov. Nixon next argued that reducing the duration of unemployment benefits in good times would “be damaging to our economy.” That statement relies on the same big-government multiplier-effect philosophy that justified Gov. Nixon’s attempted $2.4 billion giveaway to Boeing. The theory follows: when government spends “X,” it stimulates the economy and it receives “X times Y” in economic benefits.

For some categories of spending, this may actually work. Take, for example, police, fire, roads, and education. It’s generally agreed that some level of government spending on these items returns multiples of economic benefits because they serve as the infrastructure for a functioning economy. But unemployment benefits are different – they are instead a straight wealth transfer from people who are currently working to people who are not.

In today’s economy where decisions on Wall Street can cause pink slips on Main Street, unemployment insurance is a vital cushion for those Missourians who lose their job through no fault of their own. SB 673 recognizes we have finite resources and, accordingly, prescribes that benefits should move with the economy.

As with every other social welfare program, economic research has shown that incentives matter. According to Alan Krueger, President Obama’s top economic adviser from 2011 to 2013, extended unemployment benefits correlate with longer spells of unemployment. Not surprisingly, the job-finding rate of Americans on unemployment jumps just before benefits expire – and, in states with more liberal unemployment benefits, recipients don’t search for a job as intensely as those in states with more conservative benefits.

Other studies from Fed economists have found that extensions of unemployment benefits increased the unemployment rate in the last recession, particularly among highly-educated workers who become “more relaxed and more patient in selecting jobs” as duration of benefits increases. Yet another study found that, contrary to Gov. Nixon’s argument, “UI benefits and contributions provide little impact of consequence upon general economic activity.”

In addition, money to fund unemployment insurance isn’t just plucked from a tree. Nor is it a matter of “Brinks Truck Economics” — the theory that a state benefits by asking the federal government to send a truckload of money to be distributed in that state as opposed to some other state. Unlike other federal social welfare programs, money for unemployment funds is generated by a tax on employers for every employee in our state.

When the economy turns south and Missouri has to borrow from the federal government, the UI tax is increased. Raising taxes in a recession is something even Gov. Nixon would have to admit is a bad idea. Yet, by vetoing SB 673, if history is our guide, Gov. Nixon has nearly guaranteed that unemployment taxes will be raised in a future economic downturn.

I, of course, believe the legislature should override this veto, but it’s unclear at this point whether there will be enough votes. The bill passed with a veto proof majority in the Senate, but had only 101 votes in the House. I believe six additional votes will be available in veto session, but that’s two shy of an override. As we get closer to September, we’ll know more. 

Melanoma Isn’t Cool

Melanoma kills more women between the ages of 25 and 40 than any other form of cancer. But it kills even more men. According to the American Cancer Society, melanoma will kill 6,470 men and 3,240 women in 2014. And it’s metastasizing. Of the seven most common cancers in the United States, melanoma is the only one whose incidence is increasing.

Like lung cancer and other smoking-related illnesses, we often know what causes skin cancer. Research shows that the risk for melanoma increases substantially the more a person is exposed to UV rays in their childhood and teenage years. A study from the World Health Organization found that people who used tanning beds before the age of 35 were 75 percent more likely to get melanoma. A study by the Mayo Clinic discovered an eight-fold increase in the overall incidence of melanoma between 1970 to 2009, which researchers attributed in part to increased use of tanning beds.

The good news is that skin cancer can be prevented for most people by doing a few easy things: (1) avoid tanning beds, (2) use sunscreen, and (3) do self-skin checks.

Tanning bed legislation has triggered vigorous debate in the capitol. Tanning industry defenders have clouded the issue by claiming that any attempt to limit a child’s access to tanning beds is an attack on freedom. When it comes to adults, I lean libertarian. I’ve voted every year to allow motorcycle riders the freedom to ride without a helmet. Last week, I wrote about legislation to allow adults facing terminal illnesses the right to save their own life by trying drugs that haven’t yet been approved by the FDA. And I don’t believe government can or should try to force you to buy any health care service or product.

But children are different. Children are not now and have never been “free” – not in my house now or growing up, or in society at large.  Nor have businesses ever been “free” to engage in business with children in the same way that they do with adults.

Civilized societies use the law to protect children. The United States Supreme Court has recognized that “children have a special place in life which the law should respect” for at least three reasons: (1) their vulnerability, (2) their inability to make critical decisions in the same manner weighing the risks and benefits as adults; and (3) the obvious importance of parents’ in making important decisions for them.

In Missouri and elsewhere, we have dozens of laws which limit or outright criminalize a business from engaging in certain business with children that are completely legal for adults. For example, we criminalize the sale of other known carcinogens like cigarettes and smokeless tobacco to children. We prohibit the sale of alcohol and pornography. We ban child labor outside of family-run farms or businesses. And, like every other state, we only allow businesses to enforce contracts against minors in very limited circumstances.

In this past session,  the General Assembly took action to better inform and empower parents. House Bill 1411, sponsored by Rep. Gary Cross, requires parental consent before a child 17 or younger uses a tanning bed. The Department of Health and Senior Services is charged with developing the content of the consent form which should inform parents of scientific research on the subject.

Incredibly, as we were debating the bill, defenders of the industry once again made their charge for freedom. Never mind the fact that the bill doesn’t ban anything, but instead merely requires a business to get permission from a child’s parents before exposing the child to known carcinogens. So long as the parent is informed and gives their consent, the business is free to allow a child to hop into their cancer-machine.

Opponents of the bill spoke as if a law like this was unheard of –except Missouri law already requires parental consent to get a tattoo, an aspirin at school, or pierced ears. When this point was presented, opponents claimed, “Well, tattoos and pierced ears are permanent.” Sorry, but no, they’re not. Tattoos may be a little harder to remove, but piercings close –and neither tattoos nor piercings carry the risk of terminal illness. Skin cancer causes long-term harm. And death from melanoma is as permanent as it gets.

Thankfully, proponents of parental involvement and public health won this year. After three years of tireless work by Rep. Cross on the issue, HB 1411 passed through the legislature – and was signed into law last week by Gov. Nixon.

The Right to Save Your Own Life

Imagine you’ve been diagnosed with a terminal disease. You exhaust all the treatment options currently available to save your life, but none work. Then you learn of a potential new treatment that’s been proven reasonably safe and has shown promise, but hasn’t been approved by the federal government for widespread use.

Would you want to try the new treatment? I would. Depending on its relative risk, you might even be willing to try a promising drug that hadn’t yet passed safety inspection.

Unfortunately, this isn’t a hypothetical. It’s a nightmare that many Americans must endure every year as their survival hinges on FDA approval of drugs designed to save people from terminal illness. While new drugs crawl through the FDA approval process, Americans with terminal diseases die waiting.

FDA approval is a three-step process. In Phase I, a potential new drug is tested for safety among a small group of test subjects. In Phase II, the drug is tested for its effectiveness in a small group. Finally, in Phase III, the drug is tested for safety and effectiveness in a large group.

Generally, if you’re not in the clinical trial group, you’re out-of-luck. And good luck getting into the trial group. According to the Goldwater Institute, an estimated 97 percent of patients with the worst diagnoses are either ineligible because of the stage of their disease or they don’t have a way to participate in a clinical trial.

This fundamental injustice was the subject of Dallas Buyer’s Club, a recent hit movie starring Matthew McConaughey who plays Ron Woodruff, a desperate AIDS patient who takes and distributes AIDS treatments that aren’t approved by the FDA in the 1980s. Woodruff finds a drug that seems to work for him – and then creates a “buyer’s club” to help others access the same treatment.

Thanks largely to the efforts of AIDS activists in the 1980s, the FDA tweaked the drug approval process to allow for greater participation in drug trials for people diagnosed with terminal diseases. Today, a desperate patient can petition the FDA for permission to receive a drug outside of a clinical trial. But the procedure is cumbersome and expensive. According to the FDA, a single application from a doctor should take around 100 hours to complete.

Rep. Jim Neely understands the problems with FDA approval of new treatments for terminal patients. A practicing physician who grew frustrated with slow approval of AIDS treatment drugs in the 1980s, Dr. Neely also has personal experience with this unjust bureaucracy. His daughter Kristina is fighting Stage IV colon cancer and has been trying, unsuccessfully, to participate in clinical trials.

With these experiences in mind, Dr. Neely continued the work he’s been doing for patients his entire career. He did his best to improve their condition – this time in a different arena – by sponsoring House Bill 1685. Though the bill, unfortunately, cannot force the FDA to change its rules, it removes all barriers in state law for patients with terminal illnesses to gain access to potential life saving drugs that have not yet been approved. It does so by permitting drug companies to sell experimental treatments that have passed Stage I testing to patients with terminal illnesses who have considered all other treatment options, given their informed consent, and received a prescription from their physician. It also insulates physicians who prescribe new treatments from lawsuits or professional discipline as a result of prescribing such drugs unless there’s evidence of gross negligence or willful misconduct.

While a stringent FDA approval process makes sense for non-life threatening diseases and widespread sale of new drugs, it defies logic to forbid Americans who are about to die from taking drugs that might work. HB 1685 isn’t about Viagra or even more serious qualify-of-life drugs. It’s about potential life-savers, and it furthers the foundational premise of our Republic – that we are all endowed by our Creator with an unalienable right to life.

In the last week of session, HB 1685 passed unanimously, making Missouri the first state to adopt what many have called “right to try” legislation. For Missourians caught in these terrible situations, it removes all state-based obstacles. And though its impact is limited to our state and we cannot force the FDA to adopt a more flexible stance, Dr. Neely’s bill may be the first step toward what would be more precisely called a “right to try to save your own life” law.

Post-Session Review

Time and space create room for perspective. When session ended two weeks ago, it was difficult to see or explain the scope of what the legislature accomplished this year. Now, after a couple weeks of reflection, I believe that this session was the most productive of my four years as your state representative. 

With government, less is generally more. The genius of our United States Constitution and Missouri Constitution are that the very structure of government –federalism and separation of powers –protects the people from rapid policy changes. The most frustrating part of serving in the General Assembly, i.e. how difficult it is to pass a law, is also its greatest virtue.

Our system is designed to thwart big, quick, untested changes. We don’t do big things quickly. That’s why the vast majority of proposed bills fail. This year, 1,777 bills and 83 constitutional amendments were proposed in the legislature. Only 190 of them passed.  This number is not, by itself, good or bad. Measuring the productivity of the legislature is far different from that of a factory.  Our productivity is measured in quality not quantity. 

I proposed 23 bills or resolutions – nine of which found their way into bills that are on their way to Gov. Nixon. Two bills passed on their own and another seven were incorporated in some form in other bills.

This year’s General Assembly passed several notable bills to improve our state: 

  • Historic Tax Relief – Much ink has already been spilled over SB 509, the first significant income tax cut for Missourians in nearly 100 years. This historic legislation moves our economic development policy away from special interest tax breaks and toward lower taxes for all Missourians. 
  • Criminal Code Reform – In a massive undertaking and for the first time since 1979 (before I was born), the legislature updated Missouri’s criminal code. Among other things, this legislation added a new class of felony to allow prosecutors, judges, and defense lawyers greater flexibility to ensure that punishments “fit the crime,” and increased penalties for sex offenses against children. The criminal code revision incorporated the provisions of HB 1878, which I sponsored, to include incest as an aggravating factor in sexual abuse case. 
  • Education Reform – While Gov. Nixon ducked the student transfer issue over the past five months, the legislature grinded out a compromise on SB 493, the most substantive education reform bill to pass in over two decades. The Senate passed the bill by the incredible margin of 29-3.  Unfortunately, Gov. Nixon not only failed to lead on this issue during session, but has announced he will veto the bill. Having promised to reject the bi-partisan, cross-ideological, cross-regional compromise reached by the legislature, Gov. Nixon must now propose a plan of his own. It’s easy to cast aspersions from his perch; Gov. Nixon should take responsibility to come down from his perch and get in the action. For six years as governor, Gov. Nixon has urged elected officials to work together to solve big problems on controversial issues. In each State of the State address, he’s emphasized the need to reach across partisan, ideological, and regional divides.  But Gov. Nixon’s actions on SB 493 belie his rhetoric as stale political posturing that undermines the public’s faith in government. As an elected official who has proven myself willing to work with Gov. Nixon on controversial, but vital issues, I am extremely disappointed in his refusal to live up to his own words.
  • Welfare Reform – SB 680 makes several substantive changes to cut welfare fraud and improve the health of recipients. In response to an audit revealing long-term out-of-state use of EBT cards in places as far flung as the Virgin Islands, the bill automatically terminates welfare benefits for recipients who do not use them anywhere in the state of Missouri for a 90 day period. It also prohibits the use of EBT cards in any place for the purchase of alcohol, lottery tickets, or tobacco products, and requires the Department of Social Services to verify eligibility for welfare programs by cross-checking applicants’ names against other information. It creates a pilot program to reward food-stamp recipients who buy fresh fruits, vegetables, and meat at farmer’s markets. And it ends the lifetime ban on food stamps for convicted drug felons. 
  • Increasing Waiting Period for Abortions – HB 1307 increases the waiting period for an abortion to 72 hours. This bill was passed in the last few weeks after a compromise where Senate Democrats agreed to end their filibuster on the bill if Republicans shelved a ballot initiative on political donations from labor organizations. I voted against the other labor bill anyway, but in the words of Rep. Bill Lant, “I’ll trade saving babies lives for an uncertain ballot initiative on a labor issue any old time!”

Gov. Nixon has 45 days from Friday, May 30 in which to sign, veto, or let bills become law without his signature. As he signs legislation over these next six weeks, I will update you in these Capitol Reports.

An Open Letter to Gov. Jay Nixon

The following letter from Rep. Noel Torpey and myself was hand-delivered to Gov. Jay Nixon this morning.

May 19, 2014

Dear Governor Nixon,

In six years as governor, you have expressed a consistent willingness to reach across party lines on important issues. We write today to ask that you live up to your own words.

In fact, you’ve stressed the importance of working together in every State of the State address, “Unlike Washington, we’ve worked together like adults,” you said in 2012, “[N]o matter what part of our state we’re from, how we make a living, or what party we belong to.”

In 2013, you reminisced about your own time in the legislature, noting, “Republicans and Democrats didn’t agree on everything back then, just like they don’t now. We had a divided state government, with a Governor of one party, and the other party holding a large majority in the legislature – just like we do now. But we worked together to get things done for the good of the people.”

Just this year, you spoke about the great people of our state. “Here in Missouri,” you said, “folks don’t shy away from challenges – they work together to tackle them. Getting up early… working hard… staying late… and looking out for one another.”

We agree with your consistent message about the need to work together. In order to move forward on the most important issues facing our state, we believe it’s necessary to reach across the aisle and spectrum of political opinion. But doing so is never easy.

For example, over the past two years, you’ve made Medicaid legislation your top priority and repeatedly asked Republicans to put aside partisanship and ideology to move our state forward. And we have joined you to advocate for Medicaid reform and increased access to quality health care for the working poor.

As Republicans who think the ACA as a whole is terrible public policy, it was not easy for us to join you in this endeavor. It remains difficult for us to convince fellow Republicans to reach across the aisle to move this legislation which you clearly believe is the most important issue to face our state in decades. But we did it because we believe the cost of inaction is worse than the cost of taking action.

Just last week, the General Assembly proved it is still able to work across the aisle to pass difficult and controversial legislation which we believe is just as, if not more important than Medicaid. As you are well aware, the legislature Truly Agreed and Finally Passed Senate Bill 493 relating to school transfers with bi-partisan majorities in both chambers. Incredibly, the bill passed by a vote of 29-3 in the Senate and by the narrower margin of 89-67 in the House.

Together, elected officials from both parties, widely-divergent ideologies, and every area of our state made difficult choices and compromises to solve this problem and improve education in struggling school districts. In your words, we got up early, worked hard, stayed late, and got the job done.

Every legislator involved in the SB 493 process found something in the bill which they did not support. But, as responsible legislators, we realized that there’s always an excuse to vote against a bill. If you wait for perfect legislation on the big issues, you’ll never get there.

We understand that you have serious concerns about the private option portion of the bill. But we ask you to live up to your own ideals. Instead of insisting on a bill which is “perfect” to you, we ask that you read the bill as a whole. If you do, we believe you will find that the private option is only a small portion of the bill – a portion we believe is vital and necessary, but a small one nonetheless. Upon review of the bill, we believe you should come to the same conclusion as the bi-partisan, cross-ideological, trans-regional coalition of responsible legislators who made this bill a reality – it is an improvement over existing law.

Just as we stated on the House floor that Senate Bill 493 was a test to see if the legislature was still capable of passing big, difficult legislation in the era of term limits and 24-hour news cycles, so too is it a test for you. Either you truly believe in making the difficult decisions to transcend partisanship and ideology or you don’t. 

As you consider how you will act on SB 493, we ask that you consider the message you will send to the General Assembly regarding Medicaid. Just like Medicaid, we believe, in your words from 2009, “The solutions to our problems are within reach. And the only thing that can stop us is the same thing that always stops progress: a failure to listen, a failure to compromise, or a failure to walk a day in someone else’s shoes. By working together, we will tear down old barriers and tackle the challenges we face.”

We look forward to learning of your decision on SB 493 and hope that you live up to the ideals and rhetoric on bi-partisanship which you have so long espoused.

Yours in service,

 

Rep. Jay Barnes                                   Rep. Noel Torpey

Success and Wait ‘til Next Year

As of this writing, we have just one day left of the legislative session. Because so much of what happens in the last week is hard to summarize in the middle of the action, I’ll deliver my session wrap-up report next week.
Getting Missourians’ Money Back from the Federal Government

If you hold a CD in a bank, but forget about it, Missouri law requires the bank to make reasonable efforts to find you. If, after five years, you’re not found, the CD transfers to unclaimed property where the state Treasurer attempts to find you. But, if you lose a Treasury savings bond the federal government says tough luck, Missouri law does not apply.

As a result, the federal government makes no effort to locate the holder of a savings bond after it has matured and refuses to transfer the property to the state Treasury so it can attempt to find the rightful owner. Instead of returning your property, the feds keep it forever. If a Missouri bank acted like this, it could lose its charter to do business – or worse – face federal investigation and possible indictment for stealing depositor money.

The federal government, however, has said there’s an exception to this rule. If a state adopts a “title-based” escheat statute for savings bonds, the federal government will honor that state’s attempt to return their citizens’ property.

I sponsored HB 1693 to help Missourians retrieve an estimated $300 million of their hard-earned savings bonds investments from the federal government. It changes Missouri’s escheat statutes from possession to title-based. The bill passed the House unanimously six weeks ago – and unanimously through the Senate this week, thanks to the help of Sen. Kurt Schaefer.

This savings bond legislation is a good example of the several ways a bill can become a law. Toward the end of session, legislators committed to passing their ideas into law forage for as many vehicles as possible on which to hang their ideas – hoping that at least one of them will make it through the legislature’s last week demolition derby.

Sometimes a bill gets passed more than once. That’s what happened with HB 1693. Not only did the actual bill pass, but it was also added by Sen. Kehoe as an amendment to HB 1075, which was also passed this week, and SB 621, which, as of Friday morning, appears likely to pass as well.

Other Successes
  1. Student Transfer Legislation – On Thursday morning, the House truly agreed and finally passed SB 493, the student transfer bill.
  2. Treatment for Terminally Ill Patients – On Friday, the House passed HB 1685 which allows physicians to prescribe promising drugs that haven’t yet made it through FDA clinical trials to terminally-ill patients. This bill will give hope and earlier access to potential cures for Missourians suffering from terrible illnesses.
  3. Increasing Waiting Period for Abortion to 72 Hours – On Wednesday night, the House passed HB 1307 to increase the waiting period before an abortion to 72 hours. I was pleased to speak in favor of the bill. The last time we debated this bill, a pro-choice colleague told the story of her husband who had taken six months to decide whether to have knee surgery. If six months is appropriate for knee surgery, 72 hours isn’t too much to ask for a procedure that takes a human soul.
Medicaid ReformWait til Next Year

Medicaid legislation stalled again in both the House and Senate. Our window of opportunity to make Missouri’s Medicaid system the most conservative in the history of the federal program is closing. While other states have taken advantage of unprecedented flexibility to inject market forces into their Medicaid programs, the General Assembly failed to act again this year.

The good news in this effort is that advocates for reform have gained a champion in Sen. Ryan Silvey, a bulldog of a legislator with budget experience, policy expertise, and a sharp wit. Then, just yesterday, Indiana Gov. Mike Pence, a stalwart conservative, proposed Medicaid reform for his state that is remarkably similar to the legislation I have worked on here.

Along with Rep. Noel Torpey, I will file Medicaid reform legislation on the first day of bill filing for next legislative session – and promise , once again, to devote my energies to getting a Medicaid bill to Gov. Nixon’s desk.