Author Archives: jaybarnes5

Speech Week at the Capitol

State of the State

The Missouri Constitution mandates that the legislature do three things every year: pass a budget and listen to both the governor and the Chief Justice of the Missouri Supreme Court gives speeches. That’s all the constitution requires. This week, we knocked out two of the three.

On Wednesday night, Gov. Nixon gave his seventh State of the State address. His reception was polite, but cold. And his speech was long on rhetoric, but short on details. 

He said the legislature should strongly consider toll roads and raising the gas tax to solve a transportation funding shortfall. But he stopped short of explicitly endorsing either. (I’m a yes on tolls and a no on raising the gas tax.)

He called education the “great equalizer” (it is) and asked the legislature to deliver a “clean” transfer bill to his desk. In this case, “clean” is a euphemism for something that passes his ideological litmus test. This was probably the most awkward moment of the speech. When he expressed confidence that the legislature would pass a “clean” bill to his desk, Gov. Nixon was met with silence.

Last year, a bi-partisan, cross-regional coalition of lawmakers endured months of long nights and tense negotiations to put an education reform bill on Gov. Nixon’s desk. We debated big issues and haggled over minutiae. We laughed and swore. Finally, we passed a bill with a veto proof majority in the Senate and a large majority in the House. Meanwhile, Gov. Nixon never offered a plan. His only engagement was with his veto pen. To his credit, however, Gov. Nixon has already engaged legislative leaders on the transfer issue this year. But after his long self-imposed absence, he cannot reasonably expect appreciation.

Gov. Nixon later called for ethics reform, agreeing with my earlier comments that Missouri has the weakest ethics laws in the country. But again, he failed to offer any details.

Finally, in the strangest part of the speech, Gov. Nixon stopped just short of declaring war on Kansas, which has proposed a 360-mile aqueduct to steal our water from the Missouri River. I doubt there’s any member of the General Assembly who wants Kansas to steal our vital resources. But what’s the action item for the General Assembly? We can’t tell Kansas what to do any more than Kansas can tell us what to do. The battleground likely will be with the Army Corps of Engineers, Congress, or, if necessary, the Supreme Court. But other than beating our chests and passing non-binding resolutions, there’s not much the Missouri legislature can do.

Disappointed with Proposed State Budget

After modest pay increases in three of the last four years, Gov. Nixon did not propose a pay increase for state employees in this year’s budget. This is disappointing. There are other budget items that should be lower priority. One example – an apparent plan to spend $70 million on water infrastructure that would be more appropriate to be borne by ratepayers in the affected areas rather than general taxpayers. On the bright side, health insurance premiums for state employees will not increase. While other Missourians have suffered from rising health insurance costs due to Obamacare, the state budget has consistently held state employees harmless – and Gov. Nixon’s budget proposal continues the practice.

With pay raises absent from the initial proposal, it will be very difficult to get them in the budget at the end – and, of course, they’d be subject to line-item veto. Nevertheless, I will try and am confident that other representatives and senators from mid-Missouri will as well.

State of the Judiciary

On Thursday, Chief Justice Mary Russell delivered the annual State of the Judiciary address. She began her speech with a short note about the crucial role that the right to trial by jury plays (and has always played) in our constitutional republic. It is a right which traces all the way back to the Magna Carta. It was a right cited as a reason for severing ties with England in the Declaration of Independence (“For depriving us in many cases of the benefits of Trial by Jury.”) And it’s a right present in both our federal and state constitutions.

The State of the Judiciary, however, is much different from the State of the State. It’s not appropriate for a judge to opine on the political issues of the day. By necessity then, the speech is limited to extolling general principles of law and explaining how Missouri courts are improving processes and procedures.

Judge Russell’s reception was warm and welcoming. Her “undercover judge” work over the past year has endeared her to legislators and Missourians who appreciate her willingness to personally examine the real-world work of Missouri courts. Her attitude and accessibility is a great example for other judges and for all public officials. 

No to Politician Pay Raise Resolution Advances 

On Tuesday, the House approved the resolution I sponsored to reject the proposed politician pay raises recommended by the Citizen’s Commission on Elected Official Pay. The final vote was 135 to 13. It now moves to the Senate for consideration, and will be heard by the Senate Committee on Rules Tuesday morning.

Committee Assignments, Politician Pay Increases, and Legislation 101

Committee Assignments

On Tuesday, Speaker John Diehl announced appointments for committee chairmanships. I’m pleased to report that I was re-appointed as chairman of the House Committee on Government Oversight and Accountability. As chairman of this committee for the last four years, starting with the Mamtek debacle, we have investigated waste, fraud, and abuse in state government. We’ve also debated and passed substantive bills arising from those investigations.  The committee’s investigations have typically been reactive. In this session, I intend for the committee to take more pro-active role. In coming weeks, I will write more about what this will mean.

I have also been appointed to the House Committees on Ethics, Consumer Affairs, and Appropriations for General Administration.

Politician Pay Raise Refusal Advances

On Wednesday, the House Rules Committee heard and approved HCR 4, a resolution I sponsored that rejects the politician pay raises recommended by the Citizens’ Commission on Compensation for Elected Officials. In December, the Commission recommended a $4,000 or 11 percent raise for state legislators, and eight to ten percent raises for statewide elected officials.

Over the past four years, state employees have received steady (but small) pay increases. We still rank near the very bottom of state employee pay for the entire country. By stark contrast, Missouri legislators already enjoy the 16th highest salaries in the country.

Serving in elected office is an incredible honor. We don’t need to increase the salaries. I anticipate that the House will take up and pass HCR 4 next week as our first substantive act of the new legislative session.

Bill Success Rate – Legislation 101

Last Sunday, the News-Tribune ran an informative piece on the role that filing actual legislation plays in a legislator’s job. It was interesting to see the sidebar chart showing my legislative filing and “success” rate. According to the chart, I’ve sponsored 71 bills, of which three have passed.

The article rightly explained that whether a particular bill passes   does not, alone, indicate whether a legislator was successful in filing the bill.  With 163 House members and 34 senators, no single member of the General Assembly (except the House budget chair) is able to pass more than a handful of bills in any session. So, why file more than a few bills? Simple – there’s more than one way to change the law.

You can, of course, pass the bill itself. More likely, however, you attach the bill as an amendment to another bill that’s moving. Or, you handle a Senate version of a similar – or identical – bill that passes. If you have an idea for legislation but do not file an actual bill, your chances of success in adding it as an amendment are greatly diminished. The committee process vets an idea.

Most bills I have sponsored were not filed with the intention of pushing that particular bill number to become law. I’m not driven by the “glory” of getting my name on a bill that I can hang on the wall. My objective is improving our state. I file these bills to secure a hearing, and a positive vote on the bill from the committee.

Armed with that committee vote, I later attach the bill as an amendment to a different bill.  The floor speech follows a template, “This amendment would improve our state by (describe what it does). And, Mr. Speaker, I must note, it is identical to a bill I filed that was passed by a wide, bi-partisan margin in committee.” The second sentence eases the path to adoption. And you never get to say it unless you go through the process of filing the bill, requesting a hearing, testifying on it, and then urging the committee chairman to pass it.

I reviewed the bills I’ve sponsored and tallied the number that were incorporated as amendments to other bills. Together with the three bills that became law on their own, I counted 21 bills that became law through amendments. For example, House Bill 1208 from 2012 would have prohibited rapists from using child custody cases as leverage against their victims. That particular bill did not pass by itself but was included as an amendment in House Bill 1256, which did become law.

Amendments are also occasionally offered that weren’t proposed as bills. My favorite example comes from 2012 when I offered an amendment to Senate Bill 749 that requires insurers to inform consumers if coverage for surgical abortions were added to their insurance plans and allow pro-life Missourians to exclude such coverage from their own plans. The Catholic Conference dubbed it “the Barnes amendment” and it became law to give pro-life Missourians the right to choose whether they would pay for someone else’s abortion in their insurance plan or not.

Finally, every once in a while you can change Missouri law without even passing a bill. That’s what happened with House Bill 1986, a bill I sponsored in 2012 to require the Department of Elementary and Secondary Education to purchase software to detect and deter cheating on standardized tests.  Without having to pass an actual bill, DESE decided to purchase the software on its own for the next school year.

As Mark Twain famously noted, “There are lies, damn lies, and statistics.” The number of bills filed versus passed is a misleading indicator of a legislator’s effectiveness. It gauges a general legislative activity, but doesn’t measure success. It also fails to account for a legislator’s efforts to stop bad bills or bad amendments – an equally important task.

One of the local legislators (Rep. Caleb Jones from Columbia) in last week’s story filed more bills than me (81) and only passed four. Yet, he was recently voted as the top legislator who “gets things done” by readers of an inside-the-Capitol newsletter called In the same poll, I was voted as the top legislator who “does their homework.”  These polls are meaningless in the big picture, but still nice to receive recognition for hard work from people who observe the legislature on a daily basis.  

Poll – Red Light Cameras

Time to Get to Work

With the pomp-and-circumstance over, I’m eager to start working. Committees have been announced, but assignments have not been made yet. I will hopefully bring you that news next week.

While waiting for that announcement, I’ve been busy filing bills. So far, I’ve filed 12 bills and one resolution. The resolution rejects the proposed salary increases for elected officials. Those bills fall into three categories: ethics, health care, and criminal justice. I’ve written previously about the ethics proposals and the salary rejection resolution, so this week I’ll focus on the other two.

Health Care

I have proposed three “small ball” Medicaid reform bills. These bills don’t move Medicaid into the optimal market-based space;  but they make incremental improvements that will yield better outcomes and savings for taxpayers.

House Bill 319 expands the list of providers eligible to provide Medicaid services through telehealth, or the use of new electronic communications technologies. The most common, and probably oldest, example of telehealth, is radiology. A radiologist can review x-rays, MRI, and other records without being in the same room, or even the same country, as the patient. A technician takes the scan and forwards the necessary medical information to the doctor.

As technology has improved, telehealth services are available in other areas as well. For example, a dermatologist in Columbia could help diagnose an unusual rash or skin lesion using a high-resolution digital photograph taken by a family practice physician in Eldon. House Bill 319 would facilitate the expansion of telehealth services where medically appropriate.

House Bill 320 is similar to a bill I filed last year and would require the Department of Social Services to develop incentives programs to encourage health care providers to open health clinics in or near high poverty schools. In 2009, then Texas Gov. Rick Perry signed legislation creating a similar program in Texas and research has shown that these clinics both improve health outcomes for children in poverty and save taxpayer money by reducing unnecessary emergency room visits.

Because this bill’s opponents have engaged in deception, it’s important to point out that (1) consent of a child’s parent or guardian would be required before a student received any services, (2) no school-based clinic could perform or refer for abortion or contraceptives, (3) the student’s medical records would not become a part of their education records, (4) schools would not be turned into medical providers and no health care provider could collocate without permission of the school, and (5) there’s no new Medicaid eligibility in the bill.

The bill is simple. We have children currently on Medicaid who are emergency room frequent flyers and/or who don’t always receive timely medical care. We know where these kids are during the school day. HB 320 creates incentives to make health care more convenient for these children which, in turn, helps keep them out of the emergency room and saves taxpayer money.

House Bill 386 creates incentives for primary care physicians to serve Medicaid patients outside of normal business hours. Like House Bill 320, it would push Medicaid recipients to receiving health care services in a more appropriate and less expensive setting than the emergency room.

Criminal Justice

House Bill 332 would tighten the “Mack’s Creek Law” to limit local government to collecting ten percent (down from 30 percent their annual general operating revenues from fines and court costs for traffic violations. This bill is identical to a bill sponsored by Sen. Eric Schmitt (R – St. Louis County). I expect that a similar or identical may also be filed by Rep. Paul Curtman (R – Union).  A municipality that subsists only by extracting heavy fines for traffic violations from its own citizens, or those unfortunate enough to pass through, should be forced to close its troll gates. St. Louis County is littered with such municipalities. (By comparison, Jefferson City collects less than 4 percent of its revenue from fines.)

Local governments will, of course, oppose this bill. Vigorously. Those facing those loss of power naturally oppose the change.  One criticism I’ve already heard is that we’re limiting the power of government. To that I plead guilty as charged. (An aside: I thought about filing a bill like this last year but decided against it because I thought it would be too difficult to take on all of the local government lobbyists. Events over the summer obviously made success more likely.)

House Bill 334 would require prosecutors and law enforcement agencies to have a written policy directing investigations of officer-involved shootings to outside agencies and prosecutors. They could appoint a prosecutor in a neighboring jurisdiction or a person designated by the Missouri Office of Prosecution Services, an entity within state government which helps elected prosecutors throughout the state. This is already a common practice. A recent local example (though not involving a shooting) was the death of Brandon Ellingson at the Lake, where the local prosecutor appropriately recused himself and appointed a special prosecutor.

As I wrote previously, prosecutors should not bring charges because of political pressure, public spectacle or general calls for justice disconnected from the actual facts. I respect and, indeed, agree with the grand jury’s decision, and I depart from those who impugn St. Louis County Prosecutor Bob McCulloch. This bill is about general confidence in the criminal justice system. It would not increase the power of the Attorney General or Governor because I have less confidence in the ability of persons in those positions (past, present, and future) to make judgments free from political pressure and bias than other local elected prosecutors or an attorney designated by MoOPS. And it would not re-open the Michael Brown file. It states that it would only apply to situations occurring after August 28, 2015. It would, however, increase confidence in our criminal justice system.

Prosecutors are biased in favor of law enforcement. That’s their role in our adversarial system. Remember the last campaign ad you noticed for a prosecutor who promisednot to side with law enforcement? Of course not. We don’t want prosecutors to be “impartial” regarding law enforcement officers within their own jurisdiction. We want them to work closely with law enforcement officers to put bad people in jail. While the prosecutor’s position requires  sufficient independence and fairness to exercise prosecutorial discretion, they still play for the same team.  In the rare example where the situation is flipped – where a law enforcement officer may have broken the law, House Bill 334 would take the common and best practice and make it law.

Should Gov. Nixon Go to Cuba?

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The Buckley-Harvard Corollary

William F. Buckley, Jr. must be smiling. In his elegant  defense of conservatism, Buckley confessed that he would rather “live in a society governed by the first two thousand names in the Boston telephone directory than in a society governed by the two thousand faculty members of Harvard University.”

On Tuesday, the New York Times reported that Harvard faculty voted overwhelmingly to reject changes to their health insurance required by Obamacare. “For years, Harvard’s experts on health economics and policy have advised presidents and Congress on how to provide health benefits to the nation at a reasonable cost,” the Times reports. “But those remedies will now be applied to the Harvard faculty, and the professors are in an uproar.”

Turns out it wasn’t just average Americans who were bamboozled – a trick Obamacare architect Jon Gruber infamously chalked up to “the stupidity of the American voter.” But what could the Ivory Tower professors have actually expected? When President Obama promised, “If you like your plan, you can keep it,” did Harvard professors examine Obamacare’s incentive structure? Or did they just take the president at his word? Because a glance at Harvard’s prior plan coupled with  Obamacare’s new penalties, mandates, and taxes reveals that theirs’ was a  Cadillac plan that would be taxed out of existence.

The backlash is all the more remarkable because Harvard is merely applying common features of health care plans to their elite faculty.  For example, employees must now pay deductibles of $250 per individual and $750 per family. The deductible for a doctor’s office visit is $20. They must also pay co-insurance of 10 percent of the cost for hospitalization, surgery, or tests up to $1,500 per individual and $4,500 per family.

Besides increasing co-pays and co-insurance, employers and insurers have also been narrowing the networks of providers from which Americans can seek treatment. Harvard, however, had to reject this choice because the best and most expensive providers in the Boston area are affiliated with Harvard Medical School. Thus, to narrow its network, Harvard would have had to exclude its own providers. It would have been entertaining to hear Harvard explain to the most highly-educated workforce in the world why they couldn’t receive medical treatment from their co-workers and affiliates.

There’s nothing inherently wrong with an employer deciding on its own to shift some health care costs to employees – especially if the shift is accompanied by salary increases in place of the health insurance benefits. It’s the employer’s money. If an employer chooses to provide fewer benefits, it risks losing good employees. But that’s not Obamacare. This isn’t a choice. Under Obamacare, the shift is not voluntary but is instead forced upon employers through mandates, penalties, and Cadillac-plan taxes.

In Obamacare, the excise tax on Cadillac plans is 40 percent of the value of a plan above the Cadillac threshold – a rate that exceeds the top income tax bracket. The Cadillac-tax is set at a high level so that no sensible employer would ever sponsor a plan that triggers its penalties. Doing so would reduce both the company and the employee’s bottom line because each would pay a lower tax rate if the money spent on health insurance were simply provided as income.

The Cadillac tax is aimed at ameliorating the effect caused by a tax code that favors additional employer sponsored health insurance coverage over ordinary income or individual insurance coverage. Since World War II, if your employer buys your health insurance, it’s purchased with pre-tax dollars. But, if you buy it on your own? Sorry, taxes have to be taken out first.

It doesn’t make much sense to remove the ultimate consumer of a product from the most important decisions to be made about its purchase. Yet that’s exactly what the American tax code has incentivized since the 1940s. The simplest way to attack tax code discrimination against the individual purchase of health insurance would be to give individuals the same benefits that companies enjoy – allow them to purchase individual health insurance with pre-tax dollars. Of course, that’s not the Obamacare solution. Instead of offering a carrot, Obamacare brandishes a stick.

It took five years for the learned professors at Harvard to realize they would be on the business end of Obamacare’s stick. Now that the switch has hit, they aren’t mincing words. Prof. Richard Thomas told the Times the changes are “deplorable” and “deeply regressive.” Prof. Mary Lewis says the increased costs are just like a pay cut “timed to come at precisely the moment when you are sick, stressed, or facing the challenges of being a new parent.” Perhaps it’s time for a Buckley Corollary – maybe the Harvard faculty would be okay, so long as they know they have to live by the same rules they’d impose on everyone else. 

Session Preview

The General Assembly will convene its 98th session this Wednesday, January 7. I anticipate much blather by a bi-partisan cast – myself included – about this, that, and the other priorities, and what’s different this time. Legislative leaders will renew commitments to improving our state. Gov. Nixon will do the same – and will likely prepare a State-of-the-State address littered with alluring alliterations, his preferred literary device.

Like Christmas, the start of the legislative process is the same story every year. The speakers may change but the underlying themes remain. Unlike Christmas, the early January legislative service lacks a deeper meaning – and it certainly won’t help save your soul. And yet, the legislative pomp-and-circumstance is more than just going through the motions. It’s the symbolic act  that triggers the process of governance in our one-fiftieth space of our representative Republic.

Because it’s a new legislature this year, the process will begin more slowly. We need operating rules, so that will be our first order of business. I expect there will be several positive changes to the House rules relating to ethics.

After establishing the rules, committees must be formed. Those too will likely be announced in the first week. Incoming Speaker John Diehl is re-vamping the presently sprawling House committee process from one that is disparate and sometimes leads to conflicting policies to one that is better organized and flows through subcommittees.

The “old” committee structure featured 59 standing committees with a single Rules committee. Bills had to work their way through a standing committee and were then referred to Rules, which lacked the authority to make any substantive policy changes to a bill. Rules was an unusual committee under the old setup. It’s where many bills went to die unreported deaths by inaction. Yet, if a committee member spotted a problem with a bill that could have been fixed or reconciled with another bill, they could not effectively make any change. Further, as the funnel for 59 different standing committees, the Rules committee  members had difficult time tracking the details of every bill.

Speaker Diehl’s new system eliminates the gate-keeper function of the Rules committee and will disperse its power across eight to twelve committees with jurisdiction over broad subject areas. For example, Economic Development (where proposed new tax credit giveaways are typically referred) and Ways & Means (tax cut bills) will likely be under the umbrella of a general “Commerce” committee.

Diehl is thus voluntarily relinquishing much of the Speaker’s power. Rather than having to work with only the chair of the Rules committee to kill or move bills after they get out of the original committee, the Speaker has dispersed that power among many more members. Paradoxically, by spreading the powers of the Rules committee around, Speaker Diehl will also facilitate a more consistent policy because the general committees will have greater subject area expertise.

No system yields perfect results. Like Churchill said, democracy is the worst of government, except all those other forms that have been tried from time to time. The minutiae of the democratic process matters a great deal. The old House committee system was disjointed at its start with power centralized at its end. The new system will be organized at its start with power decentralized at its end.

After adopting Rules and creating committees, the legislature will get down to the actual business of legislating. I believe the following areas will receive much work and attention:

Ethics reform seems to have real steam this session. Likely topics include: (1) capping gifts to legislators, (2) improving reporting of gifts and out-of-state events, (3) ending the revolving door for legislators to become lobbyists, and (4) improving transparency in campaign advertising.

Tax Credit Reform
I plan on filing legislation in January that ends or reduces dozens of current tax credits and tax exemptions that are targeted to a special few and replace them with a reduction in the overall tax rate for every Missourian. One of the smallest but most obscene examples is the sales tax exemption for legislators for purchases from their state expense account. Rep. Dave Hinson (R-St. Clair) has already proposed House Bill 274, which I believe overlaps in many areas with the bill I am working on. (In case you were wondering, the legislator exemption was passed in 1988.)

The legislature will try, again, to improve failing school districts. Last year, after a series of long nights and difficult negotiations, the House and Senate passed bi-partisan reforms. While we worked, Gov. Nixon did – and said – nearly nothing. He did not, and does not, have a plan of his own. I anticipate the legislature will return to work on the issue this year. As with last year, I will support plans that increase educational options for families, and vigorously oppose proposals designed to trap them in failing schools or school districts.

Should Missouri Raise the Speed Limit to 75 mph?

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.