Category Archives: Other

Serving at the Public Trust Should Require Foregoing Private Profits

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

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

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

Show Us the Letter

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

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

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

Ethics Bills Move to Senate

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

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

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

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

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

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

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

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

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

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

The Good

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

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

The Bad

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

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

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

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

The Strange

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

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

The Week Ahead

 

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

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

Ethics Package Must Include Nixon Too

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ethics Reform and Its Limits

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

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

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

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

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

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

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

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

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

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

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

Local Reps Win Polls

Local Reps Win Polls 

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

Random Thoughts in October

Why I Fight

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

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

On Political “Bullying”

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

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

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

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

The ASARCO Settlement Dispute Continues

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

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

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

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

Nixon Flaunts the Sunshine Law

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

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

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

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

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

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

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

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

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

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

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

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

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

House Speaker Todd Richardson to Inform Gov. Nixon of Opposition

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

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

Another Planned Parenthood Update

Planned Parenthood of Kansas and Mid-Missouri announced in July that it would start performing abortions again in Missouri on August 3. They announced the same week as video surfaced showing Planned Parenthood leaders haggling over prices for body parts of aborted children. The issue now is whether Planned Parenthood would violate state law if it starts performing abortions at its Columbia facility. In 2007, the General Assembly passed legislation requiring abortion clinics to follow the same rules as other ambulatory surgical centers.

Planned Parenthood sued. It eventually settled the case and was allowed to continue operating without making the changes required by law. Essentially, their existing facility was “grandfathered” in. Planned Parenthood then ceased performing abortions. Generally, a “grandfather” clause expires when the party claiming its protection stops the grandfathered activity. That’s exactly what happened here.

It is not known whether Planned Parenthood has made the necessary upgrades to its facility to comply with state law. But it was issued a permit. At a hearing this week, the legislative liaison for the Department of Health and Senior Services was not able to answer basic questions about the permitting process. They shouldn’t have been issued a permit until, if and when, they are compliant. I’m confident that Sen. Kurt Schaefer, chairman of the committee leading the investigation, will continue to ask the right questions and will eventually get the necessary answers.