Author Archives: jaybarnes5

Ethics Reform

There are two types of political corruption.  The first is fodder for tabloids and Hollywood movies – POLITICIAN TAKES BRIBE! This type of corruption is rare outside of Illinois. But as Auditor Tom Schweich has explained, corruption goes beyond that which is illegal.

The second-type of corruption is more pervasive, and it might be best described as the short-circuiting of the ordinary political process through undue influence. This is the corruption that doesn’t uproot an elected official’s position or unseat any fundamental beliefs, but it may determine an issue’s priority and, when there’s uncertainty, may move them to act in a way they otherwise wouldn’t.

“Short-circuiting” works in different ways – through campaign contributions, gifts, special treatment, false friendship, and access. It causes elected officials to pause before acting against – or just not in lockstep with – their political patrons. “Short-circuiting” can move a legislator from undecided to a yes, from no to undecided (and then eventually to yes), or merely from hell no! to a quiet no. “Short-circuiting” can also move what would otherwise be an afterthought, “oh, if we have some extra time to get it done” legislation, into the “priority” category.

Is it worse in Missouri than other states? Well, we aren’t Illinois. There aren’t any recent prominent examples of prosecutions for Type-1 corruption. But Missouri’s ethics laws are the weakest in the country. We are the only state with unlimited gifts, unlimited campaign contributions, weak campaign finance transparency laws, and no ban on either legislators’ consulting or lobbying during or in the immediate aftermath of public service.

The vast majority of elected officials start (and continue) in public service for the right reasons.  But they are not angels. Madison observed, “If men were angels, government would not be necessary.” If politicians were angels, ethics laws would not be necessary either. Power both corrupts and is a magnet to the already corrupted. Where you find power, you will also find scoundrels and rogues, whose existence crosses parties, regions, and ideology.

Much like I wrote about prosecutor recusals in police shootings, public perception matters even where’s there’s no actual short-circuiting of the political process.  And the public cannot and does not like what it presently sees. That’s why on Monday, I joined Rep. Caleb Rowden (R – Columbia) in filing several bills to add some backbone to Missouri’s ethics laws.

These bills would, among other things, increase transparency by (1) requiring immediate reporting of contributions over $500 received during the legislative session, (2) requiring any entity that spends more than 25 percent of its annual budget on election advertising to file reports listing its donors, (3) requiring all lobbyist expenditures outside the state of Missouri to be reported within 14 days, and (4) requiring individualized reporting of all lobbyist expenditures made outside the capitol.House Bill 228, which I sponsored, will institute a one-year waiting period before a legislator can become a lobbyist.

I anticipate that a bill capping gifts will be filed soon as well. In addition to these measures, I expect that the House will amend its operating rules to put some ethics changes in place immediately. Many similar bills have also been pre-filed in the Missouri Senate. I believe ethics reform has tangible momentum and I am hopeful that several bills will pass in the next legislative session.

Philadelphia, Privacy and Government Ethics

On Thursday, I had the privilege to argue a case in front of the Third Circuit Court of Appeals in Philadelphia. I spent the afternoon visiting the historic sites surrounding the courthouse – Independence Hall and the Liberty Bell – and a museum on the Constitution. It was fitting that our case was argued in the heart of democracy and our Constitution.

The case was about Internet privacy – in particular, the biggest Internet hacking and tracking scheme in history. I was there as part of a group defending your (and every American’s) right to privacy on the Internet, in particular, your right to be free from computer hacking if you choose a web-browser that is specifically designed to block companies like Google from spying on you.

Just this summer, the Supreme Court ruled in a case called Riley v. California that Americans have a Fourth Amendment right to privacy in the data contained on a personal computing device, and went out of its way to explain the importance of keeping Internet search and browsing history private. You also have statutory rights to privacy under the Electronic Communications Privacy Act which, in many cases, are even stronger than your rights under the Constitution.

The Defendants in the case are Google and a handful of other data-tracking companies who hacked their way around the privacy settings of the Apple Safari and Microsoft Internet Explorer web-browsers. Of course they brought a phalanx of lawyers. This too was fitting. It is in America more than anywhere else that citizens enjoy equality before the law. And it is in our courts where this is most true.

Outside that courtroom, the Defendants include one of the most powerful companies in history. Inside the courtroom, the law and the facts are what drive the case. There’s nowhere else in American government where the average American would have an equal voice to defend their rights to privacy against hacking schemes concocted by companies like Google. In the legislative or executive branches, Google would secure meetings with top officials to persuade them to ignore the privacy interests of ordinary Americans. In the judicial branch, Google cannot plead their case without informing the other side of their arguments.

Unequal bargaining power between powerful interests and ordinary Americans is nothing new. Since the beginning of our Republic, the legislative and executive branches of the federal and state governments have been the target of financially and politically powerful groups and companies. These groups aren’t always the wealthy. It seems today that Washington is rigged in favor of both the poor and the powerful, and that it is the middle-class American who is ignored.

While there’s nothing new about this, I believe there’s a general feeling that it’s getting worse – particularly in state government. Also this week, on Monday, I chaired a committee that called on Attorney General Chris Koster to explain his actions in a series of cases detailed in the New York Times where his office either decided to take no action or to take lesser action after some interactions with companies that were the targets of civil investigations. We did not vote, but I believe it’s fair to say the committee agreed that Koster likely made the correct legal decisions. (All but two members of the committee were lawyers.) General Koster admitted that his office made a mistake in one case in not filing a case in time, but that it was not a purposeful error and they later attempted to make up for it the best they could.

The other prominent case involved 5 Hour Energy. A small group of states had started an investigation into the company for allegedly deceptive marketing. An attorney in Missouri’s AG’s office had apparently had some conversations with this group. An attorney for 5 Hour Energy sought General Koster out at a conference of the Democratic Attorney General’s Association at a swank hotel in California. After that conversation, Missouri’s investigation was soon dropped. The lawyer was neither a registered lobbyist in Missouri nor, to my knowledge, a Missouri licensed attorney.

General Koster presented our committee with a courtroom-style blowup of the allegedly deceptive advertising. He argued that it was not the type of matter with which an attorney general’s office should engage because it was not deceptive and very likely would not have even survived a motion to dismiss under Missouri law. I think he was right. But neither I, nor the committee, will endorse the process that led to that decision.

Like grade school math, it’s not always enough to reach the right result. Process matters. In this case, there was a deeply flawed process. Hotels in California after conversations with people who are not registered lobbyists or lawyers licensed in Missouri are not the appropriate places for policy or legal decisions to be made. And where you have a flawed decision-making process, you’ll eventually make bad decisions.

To his credit, General Koster reported to the committee that he has since changed the process for high-profile civil investigations in his office. There’s a team of experienced lawyers who meet before engaging a high-profile case, and before there’s any decision to settle or exit one. That is an improvement.

To be fair to General Koster, he is not alone. Every governor and attorney general in the country is feted and bombarded by special interests at events hosted by groups similar to the DAGA. There’s the Republican and Democratic Governor’s Associations, and there’s a Republican Attorney General’s Association. For big-time corporations, events hosted by these groups are like shooting fish in a barrel. They can make their pitch to leaders in dozens of states in just a few days. And can do so in an upscale atmosphere.

There’s also a legislative equivalent in the American Legislative Exchange Council. ALEC is a little different in that legislators are not “deciders” in the same way that governors or attorney generals are. Depending on the issue, a lobbyist who seeks particular action from a governor or attorney general does not need to rely on anyone other than the governor or AG to make it happen. Legislators must convince a majority of their colleagues to pass the bill (and sometimes a super-majority) which is oft easier said than done.

As the world has become more connected over the past 15 years, these various groups have grown in influence. There is little we can do in Missouri to change that. But I believe there are two things. First, we can pass legislation requiring more immediate reporting of out-of-state travel and perhaps reporting on lobbying at such events. At the very least the public should have a way to determine with whom their elected officials are meeting when they attend out-of-state conferences. Second, we can vote for candidates who best embody our views and who are not likely to have the opinions molded from lobbying in such rarified air.

Paul Revere, Eric Garner, Rosebud, the NAACP, and the First Amendment

When I learned last week that the NAACP was organizing a march to Jefferson City, my first thought was that the organizers must have missed out on those ubiquitous MoDOT highway maps. The route’s about 120 miles, it’s cold, and there aren’t many places to stay along the way. I wondered how many people could make it because I’m in good health and am not sure that I could.

My next thought was that I would not attend the concluding rally. This was for several reasons. Most prominent in my mind was that I disagree with most of the NAACP marchers on what justice in Ferguson means.

In August, I noted there were far more questions than answers and that we should not jump to one side or the other. Instead, justice requires a blind eye to both the status of the accused and the potential consequences of choosing not to bring an indictment. A badge is not an unmitigated license for violence, and officers who abuse their powers must be subject to the same laws as everyone else.

I asked at that time whether there was any history of racial animus or abusive behavior by the officer involved. It turns out there wasn’t. I asked how many witnesses there were and whether any disputed initial reports that Michael Brown had been shot in the back. It turns out there were several witnesses other than Dorian Johnson, and neither the physical evidence nor those other witnesses agreed with those initial reports.

I still do not know what happened that fateful Saturday morning. I was not there. But now I do know that most of the eyewitness testimony tended to corroborate Officer Wilson’s version of events more than Dorian Johnson’s. While a grand jury has a lesser standard, the ultimate burden for conviction in a criminal case is proof beyond a reasonable doubt. Jurors already tend to give police officers the benefit of the doubt. That’s for a good reason. Police officers keep society safe. The majority of police officers are great people who do not abuse their power.

In this case, Dorian Johnson’s testimony would have been on one side and Officer Wilson and several eyewitnesses would have been on the other. Where the weight of the eyewitness testimony lines up on the officer’s side and the star witness on the other side has a history of lying to police and has even slightly changed his story, the officer is going to win in court.

Prosecutors should not bring charges because of political pressure, public spectacle, or general calls for justice unconnected to the physical evidence and testimony. I believe it was the right decision that Officer Wilson not be tried for a crime.

The second reason for my initial decision not to attend is that, while I agree on many points of policy, including prosecutor recusals, municipal court reforms, recruiting minority police officers, revising Missouri’s unconstitutional police use of force statute, and defending Missouri’s strong laws against discrimination, I disagree with the NAACP on many of the causes and cures for continuing inequality in America.

That said, I empathize with the heartbreak, anger, and hopelessness felt by black Americans after the grand jury’s decision. In one of the great lines from To Kill a Mockingbird, Atticus Finch explains, “You never really understand a person until you consider things from his point of view – until you climb into his skin and walk around in it.”

Black Americans watching the grand jury decision may justifiably wonder when the last time someone with their skin color was given the benefit of the doubt by a prosecutor. They are angered with the knowledge that, even with recent fixes, federal and state laws still penalize possession and distribution of crack much harsher than cocaine or even meth. Same crime. Different time. The drug used in black communities gets the heavier sentence. They are likewise angered by disproportionate use of the death penalty in black on white crimes in comparison to black on black or white crimes.

I didn’t think about attending again until Thursday night when I decided to go because of three events that happened this week.

On Wednesday, Democratic Rep. Keith English suggested in a Facebook post that marchers should march right through Jefferson City until they reached Mexico – the country. I guess Rep. English has missed a few history classes in his day. What’s more American than exercising the right to petition government for a redress of grievances – particularly grievances about alleged abuse of governmental power? And I hate to be the one to have to break this to him in a public forum, but NAACP marchers weren’t the problem in Ferguson. Rioters and looters don’t march 120 miles on hilly, rural roads when its 35 degrees outside.

On Thursday morning, the Columbia Missourian reported counter-protestors in Rosebud greeted marchers with fried chicken, a melon, and a 40 ounce bottle of beer. Then they shouted for marchers to go home, displayed a Confederate flag, and yelled racial epithets as the group passed through town. If they wanted to prove the marchers’ larger point about the continued existence of racism in America, I’m not sure what else the counter-protestors could have done short of violence.   

Third, on Wednesday, a grand jury in New York chose not to indict an officer in the stranglehold death of the late Eric Garner. Unlike Ferguson, Garner’s deadly encounter with police was videotaped. Garner was unarmed. He resisted arrest by telling an officer “don’t touch me” and by moving his hands when the officer tried to cuff him. He was then immediately placed in a chokehold and taken to the ground as he was swarmed by five police officers. When he’s down on the ground and surrounded, a few of the officers say, “Alright, he’s down, he’s down.” Then Garner starts gasping, “I can’t breathe, I can’t breathe, I can’t breathe.” And still, the officer maintains his chokehold as the four other officers lay on top of him, one on his head. As Garner’s body goes limp, no one attempts to administer CPR. Watch the video for yourself.

Garner’s crime? He allegedly sold a loose cigarette without a permit or paying a tax. Seriously, can you think of a more petty crime? What would Sam Adams or Paul Revere have had to say if a British soldier strangled an American colonist who refused to pay a tax on his tea? What would the reaction have been if federal officers in Nevada had raided Clive Bundy’s ranch and killed him in the process?

After these three events this week, I decided to attend the culminating rally. Not because I agree with everything or even most of what I believed would be said. Nor was it in a quest for racial “tolerance” – a word that is demeaning to both the one doing the tolerating and those allegedly being tolerated. Instead, it was to show respect for fellow Americans who marched 120 miles in the dead of winter to exercise their First Amendment rights to freedom of speech, assembly, and to petition government for a peaceful redress of grievances.  

Ferguson – The Aftermath

Ferguson was – and is – a tragedy and travesty on several levels.

There’s personal tragedy. Michael Brown’s death is tragic – regardless of whose story you believe about what happened in the crucial moments before his death.

There’s public tragedy.

Rampant distrust of the criminal justice system in poor communities is tragic. The mistrust, while oft misplaced, has some valid causes. For example, there are several tiny St. Louis municipalities that more closely resemble organized troll guilds than legitimate government, as its revenues rely on traffic tickets extracted from residents than a stable tax base. These troll cities compound matters by operating municipal courts in the St. Louis area that apparently consider due process an optional inconvenience more appropriate for circuit courts. For examples, read the reports of Radley Balko in the Washington Post.

Mistrust of law enforcement is also a travesty. High crime areas need more law enforcement, not less. To be most effective, law enforcement requires trust and cooperation with the communities they police that is obviously lacking in too many places. But there’s a Catch 22 here. A large part of the mistrust stems from a feeling that minorities are unfairly targeted by police. Increasing police presence in poor communities with high minority populations feeds into that feeling.

Yes, bad cops exist and occasionally officers make terrible mistakes, but the overwhelming majority of officers serve for the right reasons, and act with heroism and bravery to make our communities safer. This seems like such an obvious statement it shouldn’t even have to be said, but after watching some of the coverage of Ferguson this week – it seems this might be a controversial statement for some.

So how do law enforcement officials build trust? Well, for one, the police force should at least partially reflect population demographics. In Ferguson, 67 percent of the population is black but only 7 percent of the police force is. Like it or not, that creates a trust problem.

Second, police should distinguish non-criminals from criminals. Radley Balko’s article in the Washington Post tells the story of Nicole Bolden, who, after a minor traffic accident that was not her fault, was cuffed and arrested in front of her two small children for her failure to appear in municipal court for a traffic ticket. Bolden holds responsibility for her failure to meet her obligations. But, after being caught, she spent weeks in jail – costing the municipality that jailed her more money than they’d ever collect for the traffic ticket fine. The more Nicole Boldens there are, the more distrust festers.

The “protestors” actions towards officers this week were a travesty. A riot is never righteous. As I watched on television, my thoughts were with those officers and the people of Ferguson trapped by criminal elements who were using the event as an opportunity for mayhem. Those officers on the screen this week were trying to save Ferguson – and for their efforts they had bricks thrown, shots fired, and insults hurled at them. The small business owners, many of whom agree with the protestors, are just trying to live their version of the American Dream. Like the officers at work this week, these small business owners are working to make Ferguson a better place to live. And yet, for their efforts, many saw their shops vandalized and looted.

And then there was the classic Greek tragedy of Gov. Nixon response. From his initial no-show in August to his failure to quickly send the National Guard to protect Ferguson businesses, Gov. Nixon consistently failed to rise to the challenge in Ferguson. I recognize, as should everyone, that Gov. Nixon was put in an impossible situation. There is not a single person who could have handled Ferguson perfectly. I’m also shocked Gov. Nixon did not try to stop the grand jury announcement from being made at 8 p.m. and refused to take responsibility for the response. In fact, Gov. Nixon’s now famous and cringe-worthy answer to the simple question of whether the buck would stop at his desk probably best explains his entire response to Ferguson.

Executive Nullification Still Isn’t Part of the Constitution

President Obama’s immigration orders are perfectly constitutional – just ask him. Better yet, ask Saturday Night Live, whose skewering highlighted President Obama’s condescending attitude toward the now old-fashioned idea that the president needs Congress to change the law. “That’s adorable, you still think that’s how government works,” says Obama’s executive order.

In an unusual move, President Obama released a legal memo justifying his actions the same day that he announced them. Though drafted as legal justification by the Office of Legal Counsel (a DOJ office with alumns including Justice Antonin Scalia and the late Chief Justice William Rehnquist), the memo may also contain the seeds of the action’s demise.

President Obama is taking two actions. First, he directed the Department of Homeland Security to prioritize deportations. Those here illegally who have committed crimes or threaten national security are deported first. Those convicted of multiple or significant misdemeanors are second-tier deportation priorities. Finally, the third (and lowest) priority category include those issued a final removal order after January 1, 2014 – unless they “qualify for asylum or another form of relief under our laws.”

So far, so good – so far as the Constitution is concerned. The DOJ memo explains when an executive agency is charged by law with implementing a statute, the agency has broad “discretion to decide whether a particular violation of the law warrants prosecution.” But, even the DOJ acknowledges executive discretion has its limits.

For example, “the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences.” Nor may it “consciously and expressly adopt a general policy” so sweeping as to “amount to an abdication of its statutory responsibilities.” Finally, prosecutorial discretion is most appropriate when used “on a case-by-case basis.” General policies, by contrast, pose “special risks” that the executive has exceeded his constitutional bounds.

Here’s where Obama’s plan turns unconstitutional. Part II creates a new legal status for more than four million illegal immigrants. For those who are not in a priority deportation category, President Obama will create a deferred action program that the White House describes as “a legal way to earn citizenship.” If they pass background checks, pay taxes and a penalty, and learn English, they can eventually earn their citizenship.

President Obama’s executive action leaves a fig-leaf of discretion to immigration officials. For example, an illegal immigrant who otherwise qualifies for the path to citizenship may still be denied if the official finds some factor that would “in the exercise of discretion” render the path inappropriate. The Department of Homeland Security memo, however, fails to identify any example of such a factor. The Department of Justice memo relies on this “discretion” to argue that Obama’s plan “does not create a categorical entitlement to deferred action.”

But President Obama’s rhetoric suggests otherwise – and so does common sense. Nobody is more sophisticated about immigration law than those in the shadow of the law. If this were no big deal – hey, you can exercise your discretion liberally order — immigration advocates wouldn’t be partying like its 1999. How often will Homeland Security agents actually exercise any deportation discretion for illegal immigrants who are not in the high-priority deportation categories? How often will they reject an application for the path to citizenship?

There is little doubt under the authorities cited by the DOJ memo that a court would strike an across-the-board rule as a violation of the Constitution’s “Take Care” Clause. But what happens if the “discretion” exists in theory but is never or rarely exercised in reality? When does a “guideline” become a rule?

As a matter of policy, there’s a good case to be made for a path to citizenship as part of a comprehensive immigration reform bill. There’s no functional way to find and deport everyone who is here illegally. Just as important, a path to legalization provides both the benefits and the responsibilities of citizenship – paying taxes.

Regardless of your immigration politics, all Americans should be alarmed by the precedent of Obama’s action. Our Constitution grants the president many powers, but executive nullification is not one of them. If we are to remain a nation governed by the rule of law, no single policy win can justify running roughshod over the Constitution.

Like Obamacare, the states will probably wage this legal battle, but the cases will take time to develop. Legal standing requires injury. Before filing suit, a state must incur increased costs associated with the order. These challenges will take years to wind through the courts, and, by the time of a decision, further intrusions may occur. If the president can take this action on immigration law, why not environmental or tax laws? Liberals may eventually rue the day Obama decided to take the law into his own hands.

Just Say No to Raises for Elected Officials

On Tuesday, the Citizens’ Commission on Compensation for Elected Officials recommended big pay raises for most state elected officials. Under the Commission’s plan, legislators would receive an 11 percent raise, bringing salaries to nearly $40,000, plus a 25 percent bump in per diem. Statewide officials, including the governor and attorney general, would receive an eight percent raise.

The Commission’s recommendations automatically take effect unless two-thirds of the legislature votes to disapprove them. On December 1, I will file just such a resolution.

Missouri state employees are among – if not the – lowest-paid in the entire country. In four years as your state representative, I have worked to increase state employee pay. The goal is not to put Missouri state employee pay among the ranks of California, New York, or New Jersey, where high costs-of-living and liberal state governments balloon government salaries to outpace the private sector. Instead, it is to set state salaries in line with our cost-of-living. (Current data from DED has Missouri as the 17th cheapest place to live in the country.)

In four years, state employees have benefitted from modest, but steady increases. Overall, state employee salaries have increased by more than six percent in these years. In the four years prior, I believe they stayed stagnant.

It’s not enough. Fighting for increases every year is like pulling teeth from a tiger. Until pay for state employee pay in Missouri is commensurate with our cost-of-living ranking, I won’t agree to a pay increase for elected officials.

Beyond this basic issue of fairness, however, I would still oppose an increase. Under current law, state representatives and senators earn around $36,000 a year. We’re only in session from January to May, which suggests it’s a five-month a year job. It’s not. When you add all the time up, it’s probably more like nine to ten months a year depending on how active you are as a legislator. That’s more than most people expect, but it’s still not full-time year-round job that requires a person to report for work every day from nine to five.

The current salary is just a little less than the average state employee salary. If you assume a two-worker household, it’s well above the median income for the state. Missouri legislator salaries put us far from the poor-house. Compare the work we do and the salaries we receive with that of other state employees. A Youth Specialist in the Department of Social Services working to help juvenile offenders get on the right track makes a little more than $26,000 a year. A corrections officer makes approximately $28,000 a year. Public health lab scientists earn $36,000 a year. These, and other, full-time state employees deserve an 11 percent raise more than any legislator does.

And let’s state the obvious, while it has drudgeries just like any other job, serving in the legislature is an incredible honor. Legislators get to fight every day from January to May for what all they believe to be right and just. Plus, there’s always something new to learn. For active legislators, the job has more moments of defeat than victory. (Our constitutional system is brilliantly and purposefully designed to make it hard to pass new laws.) But, when things work out, it is also incredibly uplifting.

What we do in the state legislature is important, but it does not require higher pay to encourage qualified people to run for the office. It will always involve sacrifice for Missourians with higher earning potential. There’s simply no feasible way to increase salaries high enough to attract more high-earners to the job, and that shouldn’t be the objective anyway because then the job ceases to be a public service.    

It’s amazing what happens after a person is elected: their jokes get funnier and their wits more keen. Everyone wants to be their friend. These jobs already attract those likely to think a little too highly of themselves. The sycophancy which so often envelops the work of a legislator makes it worse. It is far too easy already for legislators to develop a sense of entitlement.

Keeping elected official pay modest requires many state representatives and senators to maintain employment in the real world. Yes, it would be more convenient for legislators if their elected position paid enough to not worry about the things that concern the average Missourian. But then we’d lose the primary benefit of the citizen legislature, and we’d attract people seeking the job as a lucrative career path, and not for the right reasons of public service. Missouri government would become a little more like Washington – which is the last thing we need. For these reasons, you can count on my vote to reject the recommended pay increases for elected officials. 

Galloping Toward an Imperial Presidency

Ours is a nation of laws, not men. As Thomas Paine put, “In America, the law is king.” Hence, the “Take Care Clause” requires that the President “shall take care that the Laws be faithfully executed.”  Presidents have attempted to expand the power of the executive branch since the beginning of our country. Presidential authority to execute – or not execute – the law was vigorously debated by the First Congress, and was a key issue of President Andrew Jackson’s war on the Bank of the United States.

In March 2008, then-Senator Barack Obama campaigned on a different kind of presidency. “The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all,” Obama promised. “And that’s what I intend to reverse when I’m president of the United States of America.”

In 2011, after his first mid-term election shellacking when Democrats lost the House, President Obama reversed course. While most presidents have worked to expand executive power in foreign policy, after his first mid-terms, President Obama launched a deliberate, creeping expansion of executive authority in domestic policy. Among other “pen-and-a-phone” actions, President Obama granted No Child Left Behind waivers that were unsupported by federal law, made recess appointments to key positions that were later struck down by the Supreme Court, directed Homeland Security not to enforce immigration laws against students, and unilaterally delayed enforcement of Obamacare’s employer mandate.

Now, with his presidential clock ticking and zero influence in Congress, Obama has accelerated from creeping to galloping toward an imperial presidency. In the weeks since the mid-term trouncing, leaks of President Obama’s purported plan to suspend the nation’s immigration laws for more than 5 million illegal immigrants has dominated Washington. Conservative Charles Krauthammer calls it an impeachable offense, and even the liberal Washington Post has implored the president to reconsider.

Obama has acknowledged that his authority to act is, at best, a legal stretch. In 2013, he conceded it “would be very difficult to defend legally.” When asked about what he could do if Congress refused to act, he explained, “The problem is, is that I’m the president of the United States, I’m not the emperor of the United States, my job is to execute laws that are passed.”

Options to stop Obama’s encroachment are limited.

Impeachment is not realistic. It requires a two-thirds vote of the Senate. Even assuming every Republican would vote for it (unlikely), there aren’t enough Democrats who would cross the aisle. You know what you call a president who survives impeachment? Emboldened. Worse, the impeachment process will suck the air out of Washington, suffocating any positive agenda Republicans could otherwise present.

Litigation is a long-shot. Speaker Boehner is suing President Obama for repeated intrusions into Congressional power. There are some similarities between Boehner’s lawsuit and Marbury v. Madison. But Marbury’s injury was specific to him. Speaker Boehner’s lawsuit relies on congressional standing, which a judge is likely to find insufficient to allow a case to proceed under Article III of the Constitution.

Congress can pressure President Obama to relent by withholding funds but the President’s proposal is to nullify federal law by executive order. There may be some funding associated with inaction, but it won’t be much. Ultimately, however, the decision will be President Obama’s.

Presidents, particularly those in their second terms, should take the long-view. If he continues down this path, President Obama will allow his personal urgency of a short-term policy battle to undermine the checks-and-balances that have helped make ours the greatest nation in history. He may “win” this policy fight, but only temporarily – as he will make it impossible for Congress to pass a bill and his victory will be subject to reversal under the next president. And at what cost? A precedent that would permit the next president to ignore a law President Obama supports. What if the next president decides not to enforce Obamacare’s individual mandate? Or Sarbanes-Oxley? Or the top tax rate?

Elections have consequences. The President has powers that Congress has little ability to stop. With his boots in the stirrups and whip-cocked, only President Obama will determine what happens next. As the only president in modern American history with a professional background in constitutional law, President Obama must realize the precedent he’s contemplating. Mr. President, put the whip down and come off your unitary executive horse. Think like Professor Obama on this one, not the wounded, term-limited, and frustrated politician you’ve become.

Gov. Nixon’s Magic Calculator

Pop quiz. First, what does 1+1+1+1 equal? Second, what is 2,000 minus 90?

If you answered 4 and 1,910, congratulations, you’re as smart as a fourth grader. Unfortunately, you’d flunk in Gov. Nixon’s office, where the answers to simple math depend on who’s asking.

Not even a year ago, Gov. Nixon called the legislature into special session to rush through a $2.4 billion subsidy for Boeing’s production of the new 777x jet. In an unusual example of working with the legislature, Gov. Nixon drafted the bill for consideration, and his office remained heavily involved in the amendment process. The legislature moved with record speed, passing the bill in less than a week.

Current law caps the amount of “jobs tax credits” that the governor can award to businesses around the state — or at least the ones that are savvy enough to negotiate the tax credit process. At the time of the special session, Gov. Nixon had a problem. He was in the middle of negotiations for a massive subsidy to Cerner, which, if approved, would not have left enough room for a massive deal for the potential Boeing project. (In January 2014, Gov. Nixon announced a $1.4 billion subsidy for Cerner.)

For all the back-patting and self-congratulating, Senate Bill 1 from that quick special session really only did one thing – it placed an asterisk next to the 777x project or any other “aerospace project” that involved “the creation of at least two thousand new jobs within ten years” of approval by the Department of Economic Development for any proposal received before June 10, 2014. Under Senate Bill 1, the “aerospace project” tax credits would not count against the cap. To go back to the terms a fourth-grader can understand, the legislature agreed to let Gov. Nixon spend $2.4 billion of your money without using his allowance to do so.

Senate Bill 1 specifically defined “aerospace project.” First, it defined the eligible project as singular. It exempted any massive project from the cap, not a series of “projects.” Second, it required the massive project to involve the “creation of at least 2,000 jobs” within 10 years. Third, it set a short time-frame for proposals.

Fast-forward to October: Gov. Nixon announced Boeing would create 700 jobs in St. Louis to manufacture parts of the 777x wing. It’s just the latest in a series of new job announcements for Boeing in Missouri. In December 2013, it announced it would create 400 information technology jobs here. It followed that by announcing a project to add 400 research and technology jobs. In September of this year, it announced 500 new jobs to service and repair the F-22 fighter jet manufactured by Lockheed Martin.

A logical look at these proposals says it’s four separate projects involving distinct aspects of Boeing’s business. But Gov. Nixon doesn’t see it that way. For purposes of Boeing projects, 1+1+1+1 = 1. By using the magic calculator, Gov. Nixon avoid the caps.

This brand of math smacks of Bill Clinton’s infamous answer in a deposition regarding Monica Lewinsky, “it depends upon what the meaning of the word is is.” Gov. Nixon relies on two state statutes. Section 620.2005 defines a “project facility” under the Missouri Works program to include separate buildings used by a qualified company so long as they are located within 60 miles of each other. The recent Boeing proposals probably still don’t qualify. But there’s a trump card in Section 1.030 of Missouri law, which declares that, in Missouri statutes, any word in a statute “importing the singular number” applies to “several matters” as well. In other words, tack an “s” on to every statute that doesn’t have one.

Senate Bill 1′s second math question involves the number of jobs promised to be created. Piecing together 700 plus 400 plus 400 plus 500 does equal 2,000, but Boeing later announced it was laying off 90 workers in St. Louis. Suddenly, we’re back to 1,910 – if you’re using real-world math.

Gov. Nixon’s problems are beyond math. Senate Bill 1 exempts from the cap those projects “involving the creation of at least two thousand new jobs.” Sometimes to understand what a statute says, you must consider what it doesn’t say. Senate Bill 1 does not say “involving the promised creation.” Instead, it requires “the creation” of 2,000 jobs before a project is exempt from the cap. Has Boeing created 2,000 jobs? Or has it promised merely promised to create 1,910 jobs?

I can hear the response now, “But, but, but, that’s clearly not the intent of the legislation because that’s not how these programs work.” It wasn’t that long ago that Gov. Nixon was chastising the legislature for failing to draft bills precisely as they were intended. In 2013, a frustrated Gov. Nixon told reporters that legislators “ought to put their noses down and read the bills they’re passing.” Maybe Gov. Nixon should heed his own advice? Words have meaning. “The creation of” means jobs that have actually been created, not mere promises.

For Gov. Nixon, there’s a simple solution. Ask the legislature to exempt the various Boeing projects from the so-called jobs tax credits cap. Because the credits won’t start in earnest until next year, there’s still time to do this the right way. I would vote no because I don’t think removal of the cap is necessary for the Boeing jobs to be added in Missouri. Yet, I’m confident that the legislature would follow Gov. Nixon’s lead.

Unfortunately, I do not anticipate Gov. Nixon will follow a plain reading of the law on the Boeing subsidy. When he’s against a something, details matter and statutes are to be construed by their actual words. When he’s for something, who cares about details? With few to call him to task and a lawsuit unlikely or impossible, who’s to stop him?

Nothing Noble About Lies in Goverment

 

Obamacare architect Jon Gruber has confessions for you. “I mean,” he says, “this bill was written in a tortured way to make sure CBO did not score the mandate as taxes. If CBO scored the mandate as taxes, the bill dies.” And another, “If you had a law which said healthy people are gonna pay in, you made explicit that healthy people pay in and sick people get money, it would not have passed.” And more, “Lack of transparency is a huge political advantage.” Not finished yet, “Call it the stupidity of the American voter or whatever, but basically that was really, really critical to getting the thing to pass.” And finally, “Yeah, there’s things I wish I could change, but I’d rather have this law than not.”

Got that? Obamacare’s double-cross didn’t begin or end with President Obama’s “if you like your plan, you can keep it” promise. Instead, misdirection was baked into the bill.

Just who is Jon Gruber? He’s an MIT economics professor. He was a key consultant, and many say, the architect of Obamacare. During Congressional debate on the bill, Gruber claimed to be an objective analyst scoring the legislation in favor of the Obama administration. Later, the public learned he was on the Obama administration payroll through a $400,000 contract with the Department of Health and Human Services. The New York Times reported Gruber helped outline the basic principles of Obamacare with executive branch officials, then worked with legislative staff to draft specific language.

Gruber’s comments call to mind the so-called “noble lie” – Plato’s idea that lies are justifiable to advance what a society’s rulers believe to be the common good. During the Bush administration, liberals were obsessed with the philosopher Leo Strauss and alleged neo-conservative celebration of the “noble lie.” Yet no Bush administration insider ever said anything close to what Gruber just admitted.

There are three major (and obvious) problems with the noble lie theory. First, it’s based on a lie. Second, it is anti-democratic. Government of the people, for the people, and by the people fails when those entrusted to speak for the people believe dishonesty is noble so long as it’s for what they believe are the right reasons. Third, the noble lie is a kissing cousin of the “fatal conceit” of socialism – that there is an elite class of society capable of making decisions for us rather than relying on open, honest debate and local decisions.

American voters have grown accustom to lies and stretched-truths in campaigns from both political parties and third-party groups across the ideological spectrum. Even in the context of daily governance, we are skeptical of politicians’ statements. We expect spin. But Gruber’s confession goes beyond spin. He lays bare the knowing manipulations that propelled Obamacare to the legislative finish line.

Gruber also shows disdain for American voters who don’t sip lattes in faculty lounges, “call it the stupidity of the American voter or whatever,” he flippantly says. Democracy requires an informed citizenry. As Gruber explained, however, Obamacare was crafted to, first, fool the Congressional Budget Office into scoring the bill as not a tax increase. If the President and Congressional leaders can successfully draft legislation  to conceal their intent from the experts at CBO  – the same conclusions that   the press parrots to the public – how can anyone attribute success of that strategy to “the stupidity of the American people”?

Most Americans don’t have the time to carefully parse through poorly drafted legislation winding its way through Congress, let alone time to read a 2,700 word bill for which even then-Speaker Nancy Pelosi admitted, “We have to pass the bill to find out what’s in it.” Indeed, as a Republic, that’s why we elect representatives to Congress. Because normal Americans work real jobs and raise families. When choosing between deciphering opaque legislation or coaching T-ball, they choose T-ball.  The public is merely the final consumer of information. They trust that there will be at least a modicum of transparency in government. They expect Congress to properly draft and read bills, CBO to incisively analyze and score them and, finally, for the press to aggressively check the facts they report.

This is how freedoms works. Societies obsessed by politics and the consequences of changes in governmental power lean authoritarian. Americans trust they can disengage from the minutiae of politics because life in a free society does not depend on who’s in charge of government. But as government grows and people like Gruber are put in charge of key initiatives and institutions, the need to read the fine print also grows. His comments are Exhibit A for why Americans hate Washington and must always be on the lookout for hide-the-ball liberalism.  

Snatching Defeat from the Jaws of Victory and What Circuit Court Judges Actually Do

‘Dark Money’ Attack Ads Offend and Snatch Defeat from the Jaws of Victory

Politics ain’t beanbag, so your mother’s rule about “if you don’t have something nice to say, don’t say anything at all” does not apply. In the past six weeks, a non-stop barrage of attack ads were unleashed against Judge Joyce. The ads were paid for by groups that either don’t disclose their donors or which funnel money through a national organization. 

While nearly every other Democrat in a close race in Missouri and nationally lost, Judge Joyce prevailed. It seems to me that the consultants and secret big money donors likely snatched defeat from the jaws of victory. Though your mother’s rule does not not apply, a different rule should: those willing to spends hundreds of thousands of dollars to malign someone in a local election ought to at least have the courage and the decency to put their own name in the public domain.  

What Circuit Court Judges Actually Do

When non-lawyers think of a judge’s role, many may think of Chief Justice John Roberts’ description of a judge as umpire – they apply the rules, not make them. This concept is a perfect fit for appellate judges. They do not have the authority to determine the facts of a case – to choose which witnesses to believe or disbelieve. Instead, they take the facts as found by the trial court and apply them to the law of the case, whether that’s an administrative rule, a statute, or the Constitution.

Trial court judges have a more robust role than appellate judges. While they sometimes handle high-profile cases on the Constitution, the vast majority of their work involves criminal trials (from violent to petty offenses), divorce and custody proceedings, adult abuse allegations, debt collection and land-lord tenant cases, business disputes, and torts.

For most cases heard in circuit court, the law is not in dispute. Instead, the parties dispute the facts and how the law should apply to them. In trials, a circuit judge must make frequent rulings on the admissibility of evidence based on rules that defy labels as “conservative” or “liberal.” Instead, they are designed and have been tested over centuries as the best way to ensure that fact-finders (whether judge or jury) remain focused on reliable and fair evidence. In jury trials, the judge must also ensure that the jury instructions are accurate statements of the law.

In non-jury trials, which constitute a majority of cases, trial court judges must also determine the facts. This too is a skill not readily susceptible to partisan or ideological categorization. While the role of a circuit court judge remains the role of an umpire. But their duty to determine the facts is more difficult than a home plate umpire’s job of calling balls-and-strikes. For the umpire and appellate judge, all the facts are right in front of them. For the trial judge, the “facts” often consist of a he-said, she-said mess of contradiction and confusion. (Just think of all the different eyewitness accounts of the Michael Brown case.)  

In custody cases, the judge must determine the parenting arrangement that would be in the best interests of the child. In nasty cases, the judge must separate the bitterness that the parents feel for each other, and how it might infect the trial, with the long-term interests of the children. Business disputes require the judge to determine which side is more truthful. In criminal sentencing, the judge must weigh the facts with the law, and their knowledge of the defendant. Then they must determine the appropriate sentence – whether its prison, probation, or, for offenders with substance abuse problems, drug or DWI court.

If you have an experience with our courts, it will fall into one of these non-ideological, non-partisan boxes. And what will matter for you is whether the judge has the life experiences and temperament to make fair and impartial decisions.