Category Archives: Other

Endorsing Eric Greitens

Last Monday, I met with Eric Greitens, a likely candidate for governor. Eric is a Navy SEAL, Rhodes Scholar, author, and a leader of philanthropic organizations helping veterans. I was still skeptical going into the meeting.  I’ve grown a bit cynical serving in the legislature.

Eric and I discussed general governing philosophies, the keys to good decision-making, and policy ideas. Over the course of a campaign, Eric’s philosophy of leadership and government will be laid out, and it’s not my place to discuss them here. Nevertheless, with direct and thoughtful answers to my questions, Eric chipped my cynicism away. In my decade or so in Missouri politics, Eric Greitens is the most impressive candidate I’ve met. The other potential Republican candidates’ resumes, albeit impressive, cannot compare to Eric’s history of leadership. Like Tom Schweich in the Auditor’s office, he may even be overqualified for the office. But he’s chosen to serve his entire life, and he has my support for governor. 

“One Doesn’t Trust or Distrust a Raccoon.” Who Said It?

Reading old newspaper reports on the Rams stadium and ran across this awesome quote from a name you will know if you’re active in Mo. politics.

Quiz: Who said it?

“It would be like trusting a raccoon,” said QUOTABLE QUIPSTER, in a recent interview. “One doesn’t trust or distrust a raccoon.  The concept of trust and major sports entrepreneurs is inconsistent.

“They’re always going to be those sort of guys – showmen, salesmen, hustlers. Almost every great entrepreneur is some sort of con man. To build a stadium and get a football team, you don’t want an incredibly stable accountant.”

The $350 Million Question

Poll – Red Light Cameras

Should Missouri Raise the Speed Limit to 75 mph?

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.

Gov. Nixon’s Magic Calculator

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nothing Noble About Lies in Goverment

 

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

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

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

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

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

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

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

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

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

Ebola and Black Swan Theory

History is filled with “black swan” events. The writer Nassim Taleb, who popularized the Black Swan Theory, says these events share three characteristics. First, they are rare and defy conventional wisdom. Second, their impact is extreme. Third, we concoct reasonable explanations for them, retrospectively, to convince ourselves that they were, in fact, explainable and predictable, even though they weren’t. September 11 was a Black Swan. So were Pearl Harbor and the Great Depression. Beneficial events can be Black Swans as well: for example, the creation of the Internet.

Implicit in these commonalities is another: humans are inadequately prepared for Black Swans precisely because they were so unlikely to happen – before they did. But not all Black Swan events are created equal. Some happen in a flash – 9/11. Others take months or even years to develop – the rise of Hitler.  I reference the Black Swan Theory because we may be in the middle of just such an event.

Since March, more than 7,400 people have contracted Ebola in Africa, nearly half of whom have died. The current outbreak is the worst in the history of a disease that was only discovered in 1979. Just last week, a nurse in Spain fell ill, leading the head of the World Health Organization to warn that Ebola’s spread in Europe is “unavoidable.” Closer to home, it emerged in Dallas with the late Thomas Eric Duncan, who contracted the disease in Liberia before boarding a plane to the United States. Beyond Duncan, Ebola scares have been reported in a handful of cities, including Kansas City.

A year ago, the odds of Ebola in the United States would have been more than 100 to 1. It would require an unprecedented and virtually uncontrolled outbreak in Africa. A perfect storm of events have made that long-shot a reality. Peter Piot, the scientist who discovered Ebola in 1979, explains the countries from which this strain emerged are just recovering from civil wars that chased doctors away. In Liberia, a country with more than 4 million people, there were only 51 doctors in 2010. To compound matters, this outbreak started in a highly populated area near the borders of three countries. Their tradition is to bury the dead where they were born – even if it requires moving their body for the funeral. Consequently, Piot notes that Ebola corpses were traveling across borders in pickups and taxis – spreading the disease far and fast. Then Thomas Duncan boarded a plane to Dallas.

Public health officials still believe our health care system can adequately contain Ebola – with good reason. We have the best health care system in the world. We have a better ability to find potentially impacted people than third-world countries, and there’s a promising treatment in Z-Mapp that has already saved at least three sufferers. The odds against widespread Ebola in the United States remain long, and Americans are thousands of times more likely to die from the flu than Ebola.

Still, it’s vital that government prepares for worst-case scenarios. Words aren’t enough. Plans must be clearly articulated and promptly followed. After reading initial reports from Dallas indicating that the hospital had treated, then released Duncan, I sent a letter to the Missouri Department of Health and Senior Services, requesting information on the Department’s plan to keep Missourians safe and avoid the mistakes of Dallas.

I’m a natural skeptic of government. Rather than trust, particularly in critical situations, I seek to verify. Here, I’m pleased to report it appears DHSS is ahead of other states. The Department has convened meetings with health care providers, law enforcement, and educators to discuss protocols if a person is diagnosed with Ebola. The Department has also identified experts in the treatment of hemorrhagic fevers. The Director has the authority to quarantine. And, while their protocol is to immediately contact and work with the CDC, they are assuming that, if the disease is present in several states at the same time, we may not be able to rely on the CDC.

Public health workers save lives with quiet preparation and execution of boring protocols. They don’t star in Hollywood movies, and are rarely credited for their work because the public never learns of the disasters they inoculate. They’re like running water. You never fully appreciate the importance of their role in society – unless they fail.

The Department’s response stands in stark contrast to recent decisions by the Obama administration. The standard protocol for containing hemorrhagic disease requires establishing a quarantine, creating a barrier between the healthy and the infected. Yet, with thousands already dead and predictions from the CDC that as many as 1.4 million people could be infected by January, the Obama administration has refused to stop commercial airline travel from the affected areas. Instead, it announced “screening” procedures to isolate passengers with any symptoms of the disease.

The Obama administration argues that banning travel from west Africa would impair efforts to stop the disease by restricting movement of health care professionals to and from the impacted areas. This argument strains logic. Flights limited to health care professionals or other humanitarian workers, if they agree to comprehensive screening on return, could and should be arranged. Organizing those flights wouldn’t be any more complicated than the logistics of getting hundreds of thousands of troops to and from Afghanistan or Iraq. Further, though it’s possible a person with Ebola could work their way around a ban on direct flights, it would be much more difficult, and the increased time required for the workaround would make it more likely that their illness is detected.

Experts outside the Obama bubble are warning that Ebola may spread easier than initially suggested. For example, though conventional wisdom is that it only spreads through physical contact, some strains of Ebola have shown an ability to spread through the air, according to recent published research and as observed in anoutbreak in research monkeys in Virginia in 1989.  Every time this strain of Ebola passes from one human host to another presents an opportunity for mutation that would allow the disease to go airborne. The likelihood seems small, but it doesn’t appear that scientists have a sufficiently large sample set of Ebola experience from which we can infer with much certainty. (This is an element of the Black Swan theory. Small sample sizes skew probability calculations.)

Experts also warn that the screenings are too easily gamed. Before a flight is boarded, travelers in west Africa are screened for fever. Consider the incentives for a would-be flyer whose running a slight fever.

Unless they were vomited on by an infected person, most probably think they’ve escaped Ebola. That’s human nature. A fever could indicate many things. But they know that if they have a fever and it’s caught at the airport, they’ll be barred from the flight and likely detained with other people who have fevers, some of whom likely have Ebola. So if they’re not sick yet, they will be soon. And, because they’re now trapped in west Africa, they will likely die a terrible death.

Now consider the alternative. They could take aspirin to mask the symptoms for the screening. If it turns out that they don’t have Ebola (which most will believe), they will not have missed their flight and disrupted their life. Critically, they avoided Ebola purgatory – trapped in a holding area with people who very likely have the disease. If they do have Ebola, they probably believe that they are not yet contagious, but know that their only chance of survival would be to reach the United States.

What would you do? Most of us prefer to believe we’d act selflessly, and not board the plane. But, as Mike Tyson says, “Everyone has a plan ‘til they get punched in the mouth.”

The Obama administration’s refusal to enact a travel ban defies common sense and needlessly endangers Americans. Their alternative, new screenings at five major airports in the U.S. is a joke. As one expert explained, “At the very most, all we are buying here is some reduction of anxiety.” Reduction in anxiety is important, but doesn’t cut it. Rather than continue this farce, the Obama administration should immediately stop direct flights from west Africa, and keep a close eye on Nigeria and Spain.

In the case of the Missouri Department of Health and Senior Services, however, they have a plan. Let’s hope there’s no punch in the mouth – and that these quiet heroes continue to avoid public notice.

Legislature Must Stay In Its Own Lane on Potential Ferguson Committee

Credible sources suggest that a bi-partisan legislative committee on Ferguson is being considered. The committee would have a wide charge, including investigating the immediate circumstances surrounding the shooting of Michael Brown. For four years, I’ve been involved and responsible for many investigations.

It is entirely appropriate and good governance for legislators to thoroughly examine the practices of state government agencies to reduce waste, fraud, and abuse. Sometimes that even requires the taking of “fact” testimony from witnesses. For example, in Mamtek, our committee took testimony from several fact witnesses concerning the issuance of tax credits in a bad deal. Regarding the sharing of conceal-carry permit legislation, the Highway Patrol testified how that information was shared with federal law enforcement officers.

I led those investigations to determine whether there were state laws or policies that needed to be changed. The inquiries were an attempt to uncover glitches in state government that caused those problems. The Michael Brown case is much different.

It would be wildly inappropriate and an invasion of the separation of powers for a legislative committee to take fact testimony on the Michael Brown shooting. We have a branch of government designed to adjudicate individual fact controversies, and it’s not the legislature. It’s the judiciary.

Legislative committees are designed to elicit public opinion, not dispense justice. Unlike the judicial branch, there’s no right of non-legislators to compel testimony, cross-examine witnesses, or present evidence.  The legislature, therefore, all too often devolves into a “fact-free” zone.  As I wrote two weeks ago, “justice requires a thorough inquiry and trial in a court of law, not public opinion.”

Legislative committee hearings on the conflicting accounts given of the Michael Brown shooting would be unjust for both the Brown family and Officer Darren Wilson. Ignoring for a moment that it’s not the legislature’s role, in reality, no competent lawyer would advise their client to present their side of a criminal inquiry to a legislative committee. So, rather than taking an array of factual testimony, the committee would be left with a parade of witnesses more interested in moving public opinion than achieving justice. Worse, with a grand jury already hearing witnesses in St. Louis County and this rumored committee to meet before the end of the year, the committee would be interfering with the actual legal process.

The proper role of the legislature in the Michael Brown shooting is limited to state law and policy. For example, it would be entirely appropriate for the legislature to examine the hiring practices of law enforcement agencies in majority-minority communities, education reform, racial profiling, traffic court abuses in St. Louis County municipalities, police use-of-force justification statutes, militarization of police forces, best practices for riot responses, and as I wrote last week the best way to ensure that investigations and potential prosecutions of police conduct are free from even the appearance of a conflict of interest.

Support for “limited government” isn’t just a catch-phrase for reducing taxes. It also means each branch should stay in its own lane. The President shouldn’t pursue a “pen-and-phone” agenda to bypass Congress. The courts shouldn’t legislate from the bench. And the legislature ought not play judge and jury.