Category Archives: Other

The First Ever Override of a Gubernatorial Withhold

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.

Consent Bill Week in the Missouri House

This was consent bill week in the Missouri House. To qualify for “consent” status, a bill must be non-controversial, cost-free, and not create or expand a civil or criminal penalty. To prove its status as non-controversial, a consent bill must pass unanimously through committee. When it reaches the floor, it cannot be amended. Most pass nearly unanimously on the floor.

Representatives seek a broad view of “consent” status for their own bills. If you can get your bill classified as consent, the skids are greased for its passage. A few years ago, a bill found its way onto the consent calendar, passed on the House floor with a larger number of no votes than typical consent bills, and eventually found its way to Gov. Nixon’s desk. Then Gov. Nixon vetoed the bill and thus triggered one of the biggest non-partisan, non-ideological battles in my tenure as your state representative. By the end, each side claimed nearly every lobbyist in the building. It was fun to watch as a technical business structure question became a hot topic for everyone. Ultimately, the bill that originally passed consent failed to become law.

Every year the House picks a week before spring break to pass these bills. As with previous efforts, it was a busy but boring week. Thankfully, “consent” seems harder to get now in the House. We “only” passed 20 consent bills this week.

Some consent bills named highways or months. Others fixed a word or two in statute. Only two were interesting to me.

House Bill 1851, designates river counties from mid-Missouri to St. Louis, (including Cole, Callaway, and Osage) as the German Heritage Corridor of Missouri. As the proud descendant of German Catholic immigrants, I was pleased to vote for HB 1851.

House Bill 2195, would name “Old Drum” the official state historical dog of Missouri. We already have 26 official state “things.” Missouri has an official flag, seal, bird, game bird, flower, tree, rock, mineral, song, insect, musical instrument, fossil, dinosaur, tree nut, animal, exercise, folk dance, invertebrate, aquatic animal, fish, horse, grass, grape, amphibian, reptile, and dessert. That seems sufficient.

This bill has failed six years in a row. So I’m not quite sure how it keeps making the consent calendar. “Old Drum” has competition. Some favor “Seaman,” the dog Lewis and Clark brought on their journey. Seaman was a survivor. Lewis and Clark ate over 200 dogs on their journey but Seaman survived. On their way home, Native Americans stole the dog – and Lewis and Clark threatened to send men to attack the tribe that took him if he was not returned. If there’s any dog that deserves this honor, it should be Missouri’s first dog.

However, no dog should receive this honor unless we remove other official things. In keeping with my pledge to vote “no” on all bills naming an official Missouri thing as a waste of legislative time, I was one of 26 noes on the bill.

The Most Frivolous Legislation I’ve Seen in Six Years

In a courtroom, baseless claims are called frivolous. In the legislature, it’s a weekly occurrence. In six years, I’ve seen a lot of polished horse manure, but nothing tops the expert witness bill currently working its way through the General Assembly.

For two years, proponents of changing Missouri’s standards on expert witness testimony have made two claims. First, they say Missouri courts have a “junk science” problem. Second, they argue we should move to the federal standard called Daubert, which they claim is stricter than current law.

The first claim – “junk science” – has no basis in fact. This being the Show-Me State, skeptical legislators have asked for real-world examples. In two years, the proponents have yet to identify a single case where changing the standard would have made any difference.

The second claim – that federal courts have a stricter standard – is demonstrably false. But don’t just take my word for it – go to the primary source documents. The leading case in Missouri on expert witness standards is Healing Arts v. McDonough, where Missouri’s Supreme Court explicitly ruled that our state standard is stricter than Daubert.

Next, read Johnson v. Mead Johnson, the most recent case from the federal appeals court over Missouri federal courts. This case was decided by a conservative panel of judges that included Missouri’s own Judge Duane Benton.[2]  The conservative panel described Daubert as having “greatly liberalized what had been … strict standards for admission of expert scientific testimony.” Under Daubert, the conservative panel explained that judges (1) must “resolve doubts about the usefulness of expert testimony in favor of admissibility,” (2) must allow expert testimony if it “advances the [jury’s] understanding to any degree,” and (3) may only exclude expert testimony “if it is so fundamentally unsupported that it can offer no assistance to the jury.”

Moreover, judges are “not to weigh or assess the correctness of competing expert opinions.” Instead, expert testimony “should be tested by the adversary process with competing expert testimony and cross-examination, rather than excluded by the court at the outset.”

What do you call a claim with no basis in fact or law? Most of the time, we call it frivolous.

If you’ve listened to the proponents and then read the Mead Johnson case, you’d think they were talking about the federal standards as being too liberal. So what gives?

The truth is that expert witness standards bill is not about standards at all. The proponents’ real goal is to provide insurance companies and others with a right to frivolous litigation. Despite the liberalized standard, some courts interpreting Daubert have ruled that it requires an additional evidentiary hearing. In essence, there are two trials: the first to the judge, and the second to the jury.

If insurance companies can convince a few Missouri judges to adopt the same logic about holding an additional hearing, then the lawyers representing alleged wrongdoers will benefit because it will allow them to bury middle-class Missourians who have been harmed with paperwork and additional costs before they can present their claim to a jury of their peers.

In addition, adoption of the federal rule would swamp Missouri courts. Federal judges can handle Daubert hearings because they have fewer cases, more serious cases, and more resources. They employ legal clerks to help with research and drafting opinions. State judges have more cases and no clerks. In fact, for efficiency, prevailing parties often provide the first draft of judicial orders.

Daubert hearings will make it more expensive for all Missourians to resolve their disputes because it will be more difficult to get a trial date. Will proponents pay for the increased resources judges will need for these hearings?

Despite the costs, cases would be rare where expert testimony is excluded. As Benton and his conservative colleagues explained, judges must resolve any doubts in favor of allowing jurors to hear the evidence. This is a fundamentally conservative philosophy. In our country, the “people” make determinations of fact in most trials, not government officials. Our Founders upended the traditional relationship between government and citizens, and they enshrined the right to trial by jury in the Constitution because they had seen the King use colonial courts to further his special interests.

I understand some would prefer that the constitutional right to trial by jury not exist. These special interests and their legislative defenders seek to drive up costs and enact roadblocks before you can exercise this constitutional right. However, the Constitution isn’t some cheap Chinese buffet. I wouldn’t vote to erode your First or Second Amendment rights. Nor will I vote to whittle away your Sixth or Seventh Amendment rights.

Proponents of this legislation want to turn Missouri’s judges from umpires to activists. But Missouri’s judges don’t want to be forced to go along for the ride. The next time you hear someone say this bill has little opposition, ask them to name a single active judge who supports it. In fact, the two statewide associations of judges that takes positions on bills both oppose this change because they see it exactly for what it is.

The courtroom has always been the place in American government where the average citizen could stand on close to equal footing with the government and the powerful. While insurance companies and other powerful interests can influence the legislature and the executive branch in ways that ordinary citizens cannot, they stand on equal ground once a case is submitted to a jury. Insurance lobbyists don’t get to enter the jury room. This bill won’t quite let insurance lobbyists into the jury room. However, it will let them abuse our court system to make it prohibitively expensive for middle class Missourians to take modest meritorious claims to that same jury room.

There’s nothing conservative about passing legislation to increase frivolous litigation. Nor is there anything conservative about attempting to turn judges from umpires to activists. The next time you hear someone claim Missouri courts have a “junk science” problem, ask them to name an actual case where their bill would make a difference. They won’t have an answer. Their silence should tell you all you need to know.

[1] The other judges on the panel were Judge Lavenski Smith, another Bush appointee, and Judge Clarence Beam, a Reagan appointee.

Why I Won’t Be Standing in Line This Morning

Filing for this year’s elections begins this morning, but I won’t be among those candidates waiting in line for hours to get their names first on the ballot. This year, I’m choosing to voluntarily forego my chance at an electoral boost.*

While others are standing in line, I’ll be dropping our oldest off at school like I do every school day and then replacing mom’s job of dropping the younger ones at preschool. Then, I have more important things to do this morning than stand in line.

I’ll be trading the chance to be the top name on the ballot for changing dirty diapers at home with Jane and our newborn.

On Saturday night around 10:30, one precious little Rosemary Elizabeth Barnes was born. Rosie weighs nearly nine pounds and measures just over 20 inches long. She likes her sleep and sometimes sounds like a bleating sheep. Her mother, father, brother, sisters, grandparents, aunts, uncles, and cousins are all as smitten as can be.

After some trying but wonderful time of bleating like a sheep on dad’s shoulder Sunday night (while mom caught up on sleep), she finally called it a night, and slept six hours!

To those who have sent texts, emails, or notes, thank you. We are wonderfully blessed to have four happy, healthy children and to live in a community with great support from family and friends. It’s going to be a sweet and slow week in our house with as little technology and distractions as possible.

The Secretary of State’s Office will still be taking applications next week. I’ll secure a spot on the ballot then. 

No Politician Pay Raises or Funds for RSA

Last week, I pledged to offer an amendment rejecting politician pay raises that Gov. Nixon recommended in the state budget. On Monday, the House Appropriations Committee for General Administration adopted those changes. We eliminated Gov. Nixon’s proposed raises for politicians and staff for state-wide office holders making more than $100,000 a year. In turn, we took the money saved and put it into the budget line for state employee health care.

The Committee also accepted an amendment from Chairman Robert Ross that zeroed out funding for the bonds on the Edward Jones Dome in St. Louis. In an earlier hearing, OA Commissioner Doug Nelson predicted the sky might fall if such an action were taken – arguing that Wall Street ratings agency would ding the credit of the state of Missouri if we refused to pay. At the same time, Nelson refused to turn over an alleged letter from bond counsel he previously used to justify Gov. Nixon’s stadium gambit. If Commissioner Nelson was serious about his concerns about the zero line, he must release the document. It’s pretty simple: if it says what he claims, there’s no reason not to release the document. My suspicion is that it doesn’t say exactly what he and Gov. Nixon have claimed. There’s one easy way to prove me wrong.

Meanwhile, I believe the legislature would be improperly abdicating its oversight and budgetary duties if the stadium funding is returned to the budget without three things happening: (1) Commissioner Nelson must release the letter from bond counsel. (2) The legislature must find an entity of state government that we can trust won’t try to use the money as the first payment for a new thirty-year bond indebting two more generations of Missourians for a palace for billionaires. And (3) the legislature must find appropriate limiting language to place on any appropriation to “trust but verify” that the trust-worthy entity will comply with the budget. I believe State Treasurer Client Zwiefel is the trust-worthy person to whom any stadium funding should be appropriated.

3 Unrelated Illuminating Events and Ethics

Graveyards are full of indispensable men. On Saturday, Justice Scalia passed away. On Wednesday, a member of the House resigned in a swirl of scandalous rumors. Meanwhile, with children sick and a new baby very soon to arrive, I was absent from the Capitol more this week than ever before. (Kids on the mend. Baby due any day now.) These three events put things in perspective.

The Capitol is a great venue to people-watch. Some days I will just pause for a few minutes to scan the room and watch all of the different things that are happening at one time. As session gets closer to the end, you can watch legislators, citizens, staffers, and lobbyists scurry around the Capitol like ants in a colony that is fast caving in on them. I count myself among the ants on most days.

So here were my three takeaways from this week’s events. (1) We’re all terminal. Enjoy every moment, even the boring or bad ones. (2) No political “victory” isn’t worth losing one’s dignity. And (3) family is more important than all of it. Despite the political hubbub surrounding his death, Justice Scalia’s family is mourning the loss of a husband, father, and grandfather. Whatever public embarrassment there is with the House member’s resignation, his family’s pain is much worse. And no matter how important any bill this week on the floor was, family takes priority. 

The News-Tribune Jinx?

The paper ran a story last weekend on new House policy. I noted that nothing had been referred to the Ethics Committee, on which I sit, and I did not know of any lurking issues. Not even a week later, this dropped. Well, the Ethics Committee still has not had any complaint referred to it. But apparently only because Speaker Richardson wouldn’t let it get that far. (The Ethics Committee can only hear complaints against sitting members.)

Senate Passes First Ethics Bill

On Thursday, the Senate took up the first of many single-subject ethics bills passed by the House. The first topic was the “revolving door.” The House version required legislators to wait a year before becoming a lobbyist. This is consistent with the ethical rules in Congress and a strong majority of states. The Senate eliminated the waiting period. Instead, a legislator may not quit in the middle of their elected term to become a lobbyist. I am disappointed, but remain optimistic. It’s only mid-February and expect that many will work to see that the versions that become law are stronger than what the Senate passed this week.

More Reasons to Oppose PDMP

Dear Colleague:

Last week, I wrote you a long email to explain my opposition to a dragnet government database tracking the medical information of innocent Missourians. Dragnets are un-American and contrary to the principles of a free society.

After a week in which many of you apparently privately voiced your own opposition, I was surprised to read two newspaper articles attributing your opposition to “fear,” “confusion,” or “misinformation.”

I write today to add a few more points.

Privacy is a Fundamental Human Right, Not a Red Herring

Proponents have called privacy concerns a “red herring.” We know better. A right that the Supreme Court has called the “right most valued by civilized men” should never be called a red herring. Is the First Amendment a red herring? The Second? The Third? The Fourth? The Fifth? If you value limited government, you must be a no on this bill.

There’s a Difference Between Welfare and Private Health Care

I also read that proponents claim this is no different than other databases. For example, proponents told the Post-Dispatch that “more invasive” medical records of Missourians are already stored by Medicaid for welfare recipients and that it is “no different than our electronic medical records.” These statements misinform in two ways.

First, what is “more invasive” is in the eye of the beholder. For many, chronic pain and the prescriptions taken to help them function are more private than other health information.

Second, we’re comparing apples and oranges. A Missourian who signs up for welfare should not get a blank check from taxpayers. Their care should be coordinated to help save taxpayer money. It’s part of the bargain a person makes when they sign up for welfare.

By contrast, Missourians who aren’t on welfare don’t have their health care records in any government database. Proponents also make the big government argument that there’s no difference between your health information being stored by your medical providers / health insurance companies versus it being stored by the government. Just ponder the implications of that argument for a minute. If you share something with a private company or person, it’s the same as sharing it with the government? As powerful as they are, your health insurer is not the government.

Your Constituents Oppose PDMP

Proponents also implicitly argue that most Missourians would be just fine with sharing this medical information with the government. Recent polling indicates the obvious. In November 2014, Pew polled Americans on Internet privacy and found that 81 percent of Americans viewed the “state of [their] health and the medications [they] take” as “very sensitive” or “somewhat sensitive” information. More respondents found this information sensitive than the content of their phone or email messages and every other category of information other than Social Security number.

PDMPs Do Not Work

Despite anecdotal evidence offered by proponents, the most comprehensive comparative study of state PDMPs concluded that they do not make a difference in drug overdose deaths. In “Prescription Drug Monitoring and Drug Overdose Mortality,” a study published in Injury Epidemiology, the authors analyzed the relationship between drug overdose deaths and the implementation of state PDMPs.  “Overall,” the authors find, “implementation of PDMPs was associated with an 11 percent increase in drug overdose mortality.” They concluded, “Implementation of PDMPs did not reduce drug overdose mortality in most states[.]” To be fair, the authors are PDMP proponents, and their proposed solution to a program they found was not working was to increase monitoring, not abandon it. In addition, their data tracked until the year 2008.  

Conclusion: Vote Your Conscience, Vote Your District, Vote Your Principles

As you continue to consider how you will vote, I ask that you keep all of these things in mind. As with any issue, you must look to your conscience, your principles, and your district in making your decision.  Take a look at the facts. Examine them closely and think about their long-term implications. Then take a stand and do so without flinching. When you do that, regardless of how you vote, you deserve respect.


Rep. Jay Barnes 

Deja Vu: Rejecting Politician Pay Raises

Last year, I sponsored a resolution rejecting politician pay increases that passed before the end of January. Our state employees are the worst paid in the country, but, as much as I would enjoy a raise, Missouri politicians are doing just fine.

This year, Gov. Nixon recommended a two percent raise for state employees and politicians. Gov. Nixon deserves credit for putting a raise in the budget for state employees. Politicians are a different story.

On Monday, I plan to offer an amendment in the House Appropriations Committee for General Administration to take the politician pay hike out of the budget. If successful, I’ll attempt to put the money into state employee health care. It won’t be a huge amount, but everything helps. 

Executive Agencies Don’t Get to Write Their Own Laws

On Wednesday, the House approved Senate Concurrent Resolution 46 to reject an administrative rule promulgated by the Department of Health and Senior Services to impose a minimum wage on home health workers.

When the legislature passes a law to create a government program, it often also includes a provision empowering a state department to make rules to implement the program. But rule-making is not some willy-nilly anything-goes process. Agencies only have the authority statutes provide them. They don’t get to write their own laws.

Last year, DHSS promulgated a rule that purported to require vendors in the home health care program pay aides a higher minimum wage. At a hearing before the Joint Committee on Administrative Rules last year, the Department failed to defend the rule and admitted to key facts which showed they had not complied with state law.

In hearings on the House and Senate resolutions on the issue, no one showed up to defend the department’s authority to promulgate the rule. Similarly, in floor debate, no one defended the department’s authority to promulgate the rule – and there’s a pretty simple reason why: the department lacked authority to do it.

After several Democrats attempted to turn the debate away from this central question, Rep. Genise Montecillo (D-St. Louis) stood to urge the House to work to increase wages for home care workers, and then she “got it.” She said she suspected Gov. Nixon directed DHSS to promulgate the rule knowing the whole time that it didn’t have the authority to do it, and anticipating that the General Assembly would reject it through the JCAR process.

Bingo! In his last two years, Gov. Nixon has become un-moored from the rule of law. The home health care worker rule is just one of several issues where Gov. Nixon has tried to re-write the law on his own. And each time we can, the legislature reigns him in. 

Seeking Full Funding for Ag Research at Lincoln University

In 1865, soldiers from Missouri serving in the 62nd Colored Infantry stationed in Texas had a dream: they wanted to start an institution of higher education for newly-freed Americans in our state. In 1866, they  established Lincoln University. In 1870, Lincoln received its first state funding for teacher training. In 1890, Lincoln earned recognition as a land-grant institution, a status conferred by the federal government making it eligible for federal agricultural research grants.

For over 100 years, the federal government provided nearly all land-grant funding. That changed during the Bush Administration, when states were asked to pick up more of the tab. In Missouri, the flagship campus in Columbia received enough funding for ag research to draw the maximum in federal matching funds. This land-grant match was built into Mizzou’s appropriations.

Lincoln did not fare as well. Its land-grant funding, when received at all, has been placed in a separate line-item more easily subject to gubernatorial vetoes and withholds. Since 2000, Lincoln has forfeited over million in federal agricultural research funding because the legislature failed to appropriate enough money to match federal investment in its agricultural research.

Last year, Gov. Nixon did not recommend any money for Lincoln’s land-grant funding. The legislature appropriated $500,000. This helps, but it doesn’t fill the gap completely.

This year, Gov. Nixon again recommended a zero for Lincoln’s land-grant funding. And, thanks to the leadership of Rep. Donna Lichtenegger (R-Jackson), the House Appropriations Committee for Higher Education appropriated $500,000 again.

Agriculture is and has always been Missouri’s top industry. Gov. Nixon has reminded the legislature of this fact in nearly every State of the State address. It defies logic that he would continually forego millions of dollars in agricultural research funding.

With help from Rep. Josh Peters (D-St. Louis), a recent Lincoln graduate, I’m hopeful that the legislature can do more. Mizzou and Lincoln collaborate on many agricultural research projects. And just as Mizzou receives its full land-grant appropriation, so too should Lincoln.