Category Archives: Other
June 14, 2016
Professor Joshua D. Hawley
323 Hulston Hall
Columbia, Missouri 65211
Dear Professor Hawley:
As the chairman of the House Committee on Government Oversight and Accountability, I have investigated wasteful or incompetent governance many times in the past six years. As a Missourian, I want to be certain that those in charge of state agencies have the experience necessary to actually perform their job. That is why I’m writing you today.
Unlike faculty lounges where professors can pontificate without consequence, the Attorney General makes decisions that impact lives. Directing a criminal prosecution or protecting Missouri consumers from charlatans is not a theoretical exercise, and the office of Attorney General is not the place for on-the-job training for a person who has never tried a case or argued an appeal. It’s a place where Missourians need someone who has been tested by the fire of having an actual client depend on their ability as a lawyer in a real-world courtroom.
You claim to have argued the Hobby Lobby case in front of the Supreme Court. The public record reflects otherwise: you sat in the gallery, not at counsel’s table. Missourians understand that candidates often exaggerate, so they’ll probably forgive it. After all, Al Gore was the butt of many jokes for claiming to have invented the Internet, but I doubt he lost any votes for it.
However, I have heard rumors about your experience far worse than puffery about Supreme Court cases. It is alleged that you have never served as counsel of record in an actual Missouri courtroom where you had the responsibility of representing a person, business, or any other entity. I figure this cannot possibly be true. As a candidate for Attorney General, you must have some real-world case you can point to show Missourians that you have experience in the types of cases that the Attorney General is charged with handling on their behalf.
This being the Show-Me State, there’s a very simple way to dispel these rumors that you are not qualified for the office: simply name some cases for which you are listed as counsel of record in Missouri. I eagerly await your response.
Yours in service,
No two sessions are the same. Each feels slightly different. But beneath the issues of the hour, permanent qualities remain. True character is revealed under the Capitol’s power and pressure, and this is most evident in the last few weeks of every session.
Threats, promises, and horse-trading are the order of the week. In Churchill’s phrasing, it’s the worst of all forms of government, except all the others. It’s ugly and beautiful. In your state Capitol, it’s all crammed in to three furious days in May. And this last week was no different.
With the dust now settled, I believe this was a successful session. Here are some highlights:
On opening day, Speaker Todd Richardson pledged that the House would make ethics a priority. And we delivered. We sent five ethics bills to the Senate in the first three weeks. Unlike past years, we kept each bill narrow so the total package would not collapse of its own weight. In the end, the Senate failed to pass a lobbyist gift ban, which is disappointing. We did, however, (1) close the revolving door from legislators to lobbyists, (2) ban the practice of using campaign funds as a personal hedge fund, and (3) prohibit legislators from using their position to profit as a campaign consultant.
The telehealth legislation I have sponsored the past two sessions was added as an amendment to Senate Bill 579, which now sits on Gov. Nixon’s desk. This bill brings Missouri’s Medicaid system into the modern age by allowing for reimbursement of health care providers who provide their services using modern communication technologies. Thus, we increase access to care in rural counties and save money. The bill also makes Missouri the forty-seventh state to authorize telehealth services in the private sector. Finally, the bill establishes a statewide home tele-monitoring program in Medicaid that has proven in pilot projects to reduce hospital re-admissions for Medicaid patients – and, as a result, improve the quality of their care and save taxpayer money.
A+ Scholarships for All Qualified Students
What would you think if students who went to parochial and other private schools were not eligible for in-state tuition at our state’s four year colleges and universities? Most people would think that absurd. Yet, that’s exactly the case for our community and technical colleges. Students at public high schools are eligible for A+ Scholarships to two years colleges if they maintain a decent GPA, have good attendance, and complete community service projects. Under current law, private school students are not eligible for these scholarships even though they and their parents are taxpayers and the money goes to public colleges. In the last two weeks of session, a trio of House members (myself, Rep. Justin Alfermann, and Rep. Travis Fitzwater) started hanging amendments on education bills that expand A+ to everyone who qualifies, and I’m pleased to say that it’s on Gov. Nixon’s desk on two different bills.
On Wednesday, the House passed legislation by a vote of 143 to 12 to allow for the expungement of non-violent criminal records for Missourians who have fully served their sentences and stayed out of trouble for an extended period of time after their sentence was completed. The bill was supported by prosecutors, law enforcement, criminal defense lawyers, and the Missouri Bar. I will write in more depth about it in future years, but as the House handler, this legislation may have more positive impact on the lives of more Missourians than any bill that will pass during my service.
I will cover more in future columns, but for the next few weeks I will enjoy a break from thinking about legislation. Every so often I take the time in the early morning to sit at my desk in the House chamber before anyone else arrives. It is quiet and perfect for reflection on the legislature’s awesome responsibilities and the role of each individual legislator.
Our great historian and journalist Bob Priddy wrote earlier this year that the end of session marks the time when “graduating” legislators become mere “pictures on the walls in the hallways, pictures that thousands of people pass by every day – and will pass by every day for generations to come – without looking, or, if looking, find no meaning in the images.”
Priddy is right. State legislators don’t have legacies. Despite the egos and arrogance of the present, no individual legislator is “important” in any permanent public sense. But what we actually do will endure. The bills we pass (or kill) will impact the daily lives of more than six million Missourians.
The people we impact will never know our names, but they will have to live with the rules we created – and so will we. In six years, I’ve kept this in mind every day and pledge that I will continue to do so moving forward. Legislators are not “special” and should not be made to feel as much. It’s also why I believe ethics reform legislation is so important, and will continue to push for it next session.
As always, it remains a tremendous honor and privilege to serve as your state representative. Thank you for reading.
On Tuesday, we overrode Gov. Nixon’s veto of Senate Concurrent Resolution 46, which disapproves an administrative rule that purported to require certain government contractors to pay a higher minimum wage than required by state law.
This resolution came out of the Joint Committee on Administrative Rules, of which I am the chairman. The committee’s role is to review new administrative rules to determine whether they comply with existing state laws. Statutes create administrative agencies. To create any new rule, an administrative agency must be able to point to a statute that grants them authority.
For SCR 46, the Department of Health and Senior Services proposed a rule that would have raised the minimum wage for home health care workers to $10.15 an hour. Whether this is good policy is not the issue. The question for SCR 46 was whether the department had the authority to promulgate the rule. In the hearing before JCAR, the Department conceded it had not taken the steps required to promulgate a rule.
At the start of the debate this week I made a prediction: that the opposition would never argue that the department actually had the authority to promulgate the rule. Instead, they would argue the policy’s merits.
The opposition did not disappoint. For over an hour, they avoided the actual question under debate. To his credit, Rep. Michael Butler (D-St. Louis) made the first attempt all session to defend the rule on its legal merits, arguing that the statutes were vague enough that the Department could do this. Then he concisely summarized the lawless argument his side has made on this all session, “We’re going to turn away a wage increase on something technical. The minority party is standing against this bill for the sake of the people. We’re caring about people. Forget the technical. We’re caring about people. … And the majority party is saying, ‘You know what? The people don’t matter as much as the rule of law.’”
Rep. Butler misses the point of the rule of law – and confuses the American and the French Revolutions. The American Revolution focused on principles of freedom protected by a Constitution. The French Revolution focused on the people. The American Revolution led to the greatest nation on earth. The French Revolution led to blood-shed. Its early leaders ended in the guillotine.
There’s nothing technical about upholding the rule of law. A lawless society is a society where no one is protected, and it the rule of law itself that is the greatest protector of the people. Perhaps there’s no greater depiction of this than in the movie, “A Man for All Seasons,” in which St. Thomas Moore is asked why he would give his worst enemy the benefit of the rule of law:
William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of law, for my own safety’s sake!
On Monday night, the House adopted an amendment I offered to a bill that would close suicide reports from release to the general public for 30 days. In the moments immediately after a person’s suicide or attempted suicide, their family should never learn about it through the news media. Unfortunately, that’s not always the case. Some news organizations put the need for speed ahead of what’s best for families suffering through tragedies.
This amendment is very similar to a bill sponsored by Rep. Genise Montecillo, whose privacy was violated last year by the Post-Dispatch. Last weekend, the P-D went further in an editorial in which they criticized her bill (which is fair) but also took unnecessary cheap shots. The following is the debate on the amendment. Curiously, even though the P-D has seen fit to opine twice on Rep. Montecillo’s bill, so far we haven’t read anything about this:
Newspapers in this state, including the Post-Dispatch, have fun pointing out the foibles and follies of this building. And the flaws that come with the political process. But Mr. Speaker, the newspapers of this state have their own flaws and foibles.
And the phrase if it bleeds, it leads all too often dictates what media outlets and newspapers do. In the few days since this body adopted the Lady from St. Louis County’s bill, the St. Louis Post-Dispatch wrote on the editorial page something that is beneath the St. Louis Post-Dispatch, something that dragged the Lady from St. Louis County back into the spotlight this weekend.
The Post-Dispatch says this, “We don’t want to appear callous regarding the history of childhood abuse.” What does that sentence have anything to do with the Lady’s bill or this amendment? That is a sentence that is meant to inflame. That is a sentence from the most powerful newspaper in this state that is an attack on the Lady from St. Louis County because she’s trying to do what she thinks is right. That sentence has no business being in an editorial about this amendment or the underlying bill.
Here’s another thing they said that was interesting. They said “a greater good is served by talking about these issues” – the issues of suicide and not keeping the public in the dark. Mr. Speaker, that is true. But it is not true for individuals and their families in the immediate moments and days following a suicide attempt that they have to have their private lives splayed out on the front page of a newspaper before their family can even find out. Is that good journalism? To not wait an hour? To not wait three hours? As if the President had had something go wrong?
If it bleeds, it leads, is not good journalistic practice. It might be good copy that sells newspapers but it’s wrong. And Mr. Speaker, this amendment is designed to protect Missourians and their families in those moments immediately following a suicide where they need privacy and they don’t want their names on the front page of a newspaper in these trying times.
Our strategy of confining ethics reforms to single-subject bills is working. Gov. Nixon has already signed one bill into law. And this week, the legislature sent two more bills to his desk.
House Bill 1979, sponsored by Rep. Caleb Rowden, imposes a six month waiting period after a member’s term of service is complete before they can become a paid lobbyist – and applies to current members of the legislature. I would have preferred a one-year waiting period, but with a five month legislative session that starts immediately upon the completion of current members’ terms, this effectively accomplishes the same thing. Elected officials will have to sit out a session before returning to the Capitol as paid lobbyists.
I sponsored House Bill 2203, which prohibits candidates from using their campaign funds like they’re a hedge fund manager. Campaign contributions are designed to be used in political campaigns – not to become a mechanism for investments that perpetuate the account. The Senate improved the bill with amendments that prohibit anyone from working as a lobbyist until they have disbursed the moneys in their campaign account by refunding it to donors, contributing it to a political party, or donating it to charity.
Credit must also go to Senator Kehoe, who helped shepherd these bills through the Senate in his role as floor leader.
Two other ethics bills still await Senate action. House Bill 2166, sponsored by Rep. Justin Alferman, bans gifts for state legislators. I believe this is the most important of the five ethics bills and remain hopeful that it will find a way to Gov. Nixon’s desk. The other bill awaiting Senate action is House Bill 2226, which I sponsored to close a loophole in state law by prohibiting special gubernatorial appointees from using their public positions to privately profit.
All of these bills share two things in common. First, public officials should not use their positions for private profit. These bills remove financial incentives for elected officials to do the wrong thing. Second, they help move the Capitol culture further away from entitlement and closer to service.
The vast majority of Representatives and Senators begin – and continue – to serve for the right reasons. But power is intoxicating. It changes people, slowly and sometimes imperceptibly to the person being changed. Humility can be hard when people Monday through Thursday laugh at your bad jokes and act like your every word has great meaning. No one is immune to this.
Our Founders understood this. Madison expressed it best, “If men were angels, no government would be necessary.” These ethics bills won’t fix every ill with government. No bill ever could. They will, however, improve your state government.
If you become paralyzed by a drunk driver, who should get the benefit of your responsible decision to pay health insurance premiums every month? You or the drunk driver?
Under current state law, whether you or the drunk driver gets the benefit of your health insurance is decided by a jury. But if a bill working its way through the General Assembly becomes law, the drunk driver will get it automatically.
In particular, I’m writing about Senate Bill 847, which would abrogate the collateral source rule. In short, the collateral source rule prevents defendants from introducing evidence at a trial that a third-party has paid part of the damages suffered by the person who was injured. In most cases, that third-party is an insurance company that only pays part of the damages because the person injured paid premiums.
It’s a legal doctrine nearly as old as our state. In 1854, in a case called The Proper Monticello v. Mollison, the United States Supreme Court explained that this rule prohibiting wrong-doers from benefiting from their victims foresight was already “well-established” in American law.
Courts have described the collateral source rule to have three purposes. First, it ensures that a wrongdoer does not benefit from their victim’s foresight to purchase insurance. Second, it supports the deterrent purposes of tort law by requiring the wrongdoer to pay the full extent of the damages he caused. And third, if there’s threat of a “windfall” between a wrongdoer and his victim, the wrongdoer should never be the beneficiary.
These purposes relate directly to personal responsibility. We are each responsible for our own lives. We are responsible for the good decisions that we make – and should be able to benefit from them. And we are responsible for the harm that we cause – and should be required to make good for it.
If you work and are responsible, you pay health insurance premiums every month. In 2010, the last year for which I could find data, the average annual health insurance costs for Missouri families with private health insurance was $13,903 per year. With Obamacare, that price is only going up.
What do you get for those monthly payments? First, your money purchases the certainty that a medical calamity will not bankrupt you. Rather than being forced to pay for your medical care out-of-pocket, you pay an insurance company to reduce your out-of-pocket costs. If you use less than your premium payments, you don’t get your premiums back but at least you’ve had the certainty all year that an illness will not bankrupt you. If you use more, you get the certainty, and actually spend less through premiums than you would have if you did not have insurance.
I believe you should be able to keep the benefits you’ve paid for and that government should not take any action to give those benefits to someone else. And under current law, our civil justice system ensures that people who harm others intentionally or through reckless behavior are held personally accountable for their behavior through monetary damages.
Do not be mistaken, defendants found liable in civil lawsuits have done something wrong. Every successful lawsuit involving physical injuries to the victim involves a conscious and deliberate choice by the defendant to violate a community safety rule. There are no exceptions. Though most defendants do not directly intend the result of their actions, i.e. injury to the plaintiffs, to be liable, each and every civil defendant must have, at some point, made a conscious and deliberate choice to engage in an action that violates safety rule designed to protect you and I and everyone else in our state.
For example, we have traffic rules designed to protect the safety of everyone traveling on our roads and highways. We have laws against following too closely, running red lights, speeding, and drunk driving. When someone violates these community safety rules and injures someone else, the wrongdoer is responsible for the harm they cause.
For over 160 years in this state, the collateral source rule has ensured that juries of ordinary Missourians can hold wrongdoers fully responsible for the harm they cause. Unlike “pure” collateral source states, defendants in Missouri can present evidence of the amount of medical bills paid. The jury also sees the original bills. Then it’s up to you – the jury – to decide the true measure of damages.
Unfortunately, personal responsibility is a value that politicians often preach, but don’t always vote that way. The most prominent recent example involving health insurance is Obamacare, which involved an overt transfer of benefits from those responsible enough to purchase health insurance and gave it to the uninsured. If you have a “Cadillac” health care plan, Obamacare taxes it and uses the proceeds to benefit the uninsured. Obamacare also creates an incentive for people not to buy health insurance when they’re healthy. With its rules on guaranteed issue, a person can choose to forego health insurance until they know they’re going to have high health costs. These free-riders take advantage of those of us responsible enough to pay our premiums every month.
Senate Bill 847 shares features of Obamacare, except, instead of giving the benefits of your health insurance policy to the uninsured, it gives them to drunk-drivers, red-light runners, and other people whose negligent acts have harmed someone else.
Neither the plaintiffs’ health insurance nor the defendants’ liability insurance are relevant to the measure of damages caused by the defendants’ wrong-doing. The abrogation of the collateral source rule operates as little more than a perverse reverse socialism. One leading advocate of pro-insurance company tort reform measures has even admitted that proposals like SB 847 “operate as wealth-transfers to tortfeasors.” That’s because this so-called “reform” takes money and resources away from responsible middle-class Missourians who pay their health insurance premiums every month and gives the benefit of those premiums to wrong-doers and their insurers.
Those wrong-doers range from those who have done the mundane – following too closely – to drunk drivers and far worse. Others may side with drunk drivers and their insurance companies. But if this bill comes up for a vote, I’ll stand with those Missourians who were responsible enough to buy health insurance.
The House resumed work this week. With only six weeks remaining, the time for bills to pass out of their original chamber is fading. This week, I was pleased that one of my sponsored bills passed through the chamber.
House Bill 1923 passed on Thursday with only a single no vote. It is this year’s version of what I called the “Medicaid Modernization Act” last year. It updates state law to bring our Medicaid program into the 21st century by providing reimbursement for health care services that are delivered through modern technologies like video-conferencing or high-definition “store-and-forward” medical diagnosis.
The goal is to ensure that state taxpayers and Medicaid recipients benefit from the reduced costs and improved quality of care of modern technology. For example, one section of the bill creates a “home tele-monitoring” service within Medicaid that would give recipients at risk of hospitalization the option of receiving care and monitoring at home so we can prevent expensive hospitalizations.
Last year, the House passed the bill by an overwhelming margin, but it was one of dozens of bills that languished on the Senate calendar late in session due to a Democrat filibuster the last week of session. This year, passing the bill is critical. After last session, some major health care providers in the state noticed that, even though many doctors were using telehealth, there’s nothing in state law that explicitly authorizes use of modern technologies to deliver health care. While 41 other states have statutes or rules that define the terms under which a physician can provide their services via video-conference or store-and-forward technology, Missouri has no such law or administrative rule.
In debate this week, one representative said he believed HB 1923 was the most important bill we’ve taken up this year. I appreciate the superlative, and, as far as positive impact on the most people, he may be right. By making telehealth services available in Medicaid and ensuring its continued use in private health care, we are increasing access to care for all Missourians simply by allowing health care professionals to take advantage of new technologies. Under HB 1923, a person in an area without medical specialist will have a better opportunity to access specialty care. They will not necessarily have to drive to St. Louis, Kansas City, or even a regional hospital, but instead can have some specialty services delivered in their local family physician’s office.
On Thursday, the House also passed legislation to help homeowners in Holts Summit. Sponsored by Rep. Travis Fitzwater (R-Holts Summit), House Bill 1684 allows residents of Lake Mykee and Holts Summit to consolidate if they so choose. Residents of Lake Mykee have been told they have to build a new sewer system that would cost tens of thousands of dollars for every homeowner. A better option would be to consolidate with Holts Summit, which has enough capacity in its sewer system to assume these new residents. Consolidating would reduce costs for residents of both Lake Mykee and Holts Summit. This bill is a great example of a common-sense, good government measure where Rep. Fitzwater is working for all of his constituents.
On Thursday, the Senate sent the first ethics bill of the session to Gov. Nixon. House Bill 1983, sponsored by Rep. Shamed Dogan, which prohibits statewide elected officials and members of the General Assembly from serving as paid political consultants. This bill is important because when a person signs up to be a public servant, they should not also be creating a side business that profits from that position.
As a side-note, HB 1983 was an example of how the legislative process should work more often. The bill improved at each step of the process. We learn in grade school that when the House and Senate pass different versions of the same bill that they have to figure out a way to resolve the differences. In practice, this means each side appoints members to a conference committee to reach a compromise. Typically, the results of conference committees are foregone conclusions. As a House conferee on HB 1983, it was different from almost any other conference committee on which I’ve served. Every member – from both sides and both sides of the aisle – contributed. And the end result, which split the difference between the House and Senate versions of the bill, made the bill a better product. (Sen. Kehoe also served on the conference committee.)
I believe this is just the first of several ethics bills that will reach Gov. Nixon’s desk. House Bill 1979, which closes the “revolving door,” is in conference and set for a hearing next Wednesday morning. Senator Kehoe and I are conferees on that bill as well. House Bill 2203, which I sponsored to prohibit exotic investments with campaign funds, is also in conference and ready to be set for hearing. (Again, Senator Kehoe and I are conferees.) Finally, I remain hopeful that legislation to ban lobbyists’ gifts and to update Missouri’s self-dealing laws to cover special gubernatorial advisors will also pass through the Senate in some form.
Under the Missouri Constitution, the legislature has appropriations authority. It decides where to spend your tax dollars. Under the constitution and traditions, the governor has three budget responsibilities and powers. The first is to submit a proposed budget to the legislature. The second is to sign or veto budget bills – including the opportunity to make line-item vetoes. The third power is to control the rate of state spending so that, if revenues are falling short of expectations, the governor can save the state’s credit rating by withholding appropriations. Under this power, the governor chooses exactly where to withhold.
Gov. Nixon (and his predecessors) have taken a broader view of this authority than the legislature has deemed appropriate. In some years, the legislature was frustrated by the governor’s decisions to withhold funds even though revenue was on track. By taking a broad view of withholding power, a governor can undermine the legislature’s appropriations power.
The rules on gubernatorial withholds changed in 2014 with the passage of Amendment 10 by a margin of 57 to 43. Under the new language of Art. IV, Section 27 of the Missouri Constitution, the legislature has the authority to override specific gubernatorial withholds.
Opponents have portrayed this new legislative power as dangerous to the state’s credit rating. I disagree for two reasons. First, it does not require the governor to reduce the total amount of his withholds. If the legislature overrides a withhold of $1 million on a specific line item, the governor can respond by withholding $1 million somewhere else. Second, a withhold override requires a super-majority of two-thirds.
This resolution also has the effect of giving the legislature shared responsibility for withholds. Previously, governors have been criticized by members of the opposing party for where they chose to make withholds. Under this change, that criticism will no longer be valid because the General Assembly now has the power to override those decisions.
On Wednesday, the Missouri House took its first action to exercise the powers granted by voters with Amendment 10. We overrode two withholds – $575,000 for the Missouri Scholars and Fine Arts academies, programs for gifted Missouri students, and $350,000 for rehab services for Missourians who have suffered traumatic brain injuries.
These withhold overrides are modest and responsible. Last year’s budget was based on a projection of 2.8 percent revenue growth. To date, state revenue is growing at a 4 percent rate. If this trend continues through the end of the fiscal year, the state will receive $300 million in revenue above appropriations. These two withhold overrides are a tiny fraction of that potential surplus.