For Whom the Road Tolls

Amendment 7 failed by a large margin. The strongest arguments against this measure were two-fold: a general and well-founded opposition to a tax increase, and the concern that trucking companies, who use our highways the most, wouldn’t bear the burden of upkeep.  .

As your state representative, I voted to put Amendment 7 on the ballot because we’re on the brink of a transportation funding crisis in Missouri, and the issue was important enough that you deserved the opportunity to vote on it.

Passed in November 2004, Constitutional Amendment 3 isolates transportation funding in Missouri from the rest of the state budget. MoDOT receives a direct stream of funding which the legislature is not allowed to divert and, in turn, the legislature has walled-off general revenue funding from MoDOT.

MoDOT says it costs roughly $485 million a year to maintain Missouri’s current state highways and bridges. Current funding exceeds that amount, allowing for new projects to accommodate new business and growing cities. But the very near future is bleak. By 2017, MoDOT’s projected revenues are $325 million. The shortfall is caused by decreasing funding from the federal government and continuing increases in fuel-economy.

Missourians seem to follow the national trend on transportation funding. According to an article in Wednesday’s News Tribune, a clear majority of Americans believe the benefits of good transportation systems outweigh the costs. But few want to pay for it. Despite declining gas tax revenues due to increased fuel economy, clear majorities also oppose gas tax hikes, tolls, and usage taxes.

Joshua Schank, president of a transportation think tank, commented: “People want to have a federal transportation program and they don’t want to pay for it.”   

What happens if Missouri’s roads and bridges are under-funded by $160 million a year? More accidents and less industry that relies on adequate transportation infrastructure. With Amendment 7’s rejection, it’s time for those concerned about infrastructure and public safety to return to the drawing board.

As I explained in March in Chamber Today, providing safe roads is a basic function of government and vital to our economy. I believe the best solution would be user-generated tolls. I support this option because, like the gas tax, it requires those who use the public good (a road) to pay costs directly associated with their use of the good.

Toll roads are allowed in 38 other states and have worked well to improve road quality. In addition, tolls solve the problems associated with the two best arguments against Amendment 7. They aren’t a tax, and they don’t shift costs away from heavy highway users. They are a far more conservative solution to dwindling highway funds than the sales tax route. Tolls are more like a fee. You get what you pay for. If you use I-70, you pay a greater share of its maintenance costs. The same for any other tolled road.

Tolls, of course, have their detractors. Ordinary Missourians who use highways likely to be tolled won’t like the added costs. The logistics of converting non-toll roads to toll roads won’t be simple. And trucking companies will argue that they will “vote with their wheels” and by-pass Missouri as a shipping route.

There are answers to each of these arguments. Like any other service, toll roads can, and do, offer discounts for volume – and could be structured to further reduce the costs to residents of the area of the toll road. Though conversion is not simple, it is possible.

Finally, though some trucking companies may avoid Missouri toll roads, I doubt the impact will be significant. On the Kansas Turnpike, an 18 wheeler can drive from Lawrence to Oklahoma for less than $30 (according to a calculator on the turnpike website). For sake of argument, let’s double the rate to take I-70 across Missouri for an 18-wheeler to $60. Now consider that 18 wheeler is likely hauling hundreds of thousands, if not millions, of dollars of merchandise. How many hours is a trucking company willing to delay delivering goods to its customers to save $60? And what if some trucks decline to take I-70 or I-44? The result would be less wear-and-tear on those highways. How much money will trucking companies save every year from driving on better-maintained roads and highways? How much maintenance will be saved? How many catastrophic accidents would be avoided?

I’m confident Senator Kehoe will continue to lead on transportation and other infrastructure issues. Unlike many in our capitol, Sen. Kehoe does not run from difficult issues. He tackles them. I look forward to continued debate in this area and will work to ensure that user-based tolls are a large part of the solution.

The Right to Farm

Of the five ballot measures up for your consideration next Tuesday, the “Right to Farm” amendment has been the subject of the most talk – and the most confusion. Opponents, funded largely by out-of-state radical environmentalists and animals-deserve-human-rights-activists, have spent the last several months spreading lies about what it actually does and why it was placed on the ballot.

 Let’s skip the rhetoric and look at the actual text of the amendment:

  • That agriculture which provides food, energy, health benefits, and security is the foundation and stabilizing force of Missouri’s economy. To protect this vital sector of Missouri’s economy, the right of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state, subject to duly authorized powers, if any, conferred by article VI of the Constitution of Missouri. 

Last week, I wrote about the Gun Rights amendment, which specifies that laws infringing on Missouri’s version of the Second Amendment are subject to strict scrutiny. The reason: the right to self-defense and its protection through the Second Amendment are fundamental rights; therefore, any law impairing self-defense has to jump the highest hurdle to pass constitutional muster. The Right to Farm amendment is different and creates a right limited in two ways.

First, it expressly subjects farming and ranching to “duly authorized powers” of local governments in Article VI of the Missouri Constitution. This means that Missouri cities and counties may continue to regulate farming and ranching activities in the same way that they do today.

Second, the amendment does not create an impossible barrier for reasonable regulations of farming or ranching practices in state law. It clearly does not say that Missourians have the right to farm and ranch in any manner that they so choose. Instead, under this amendment, reasonable regulations will survive challenge so long as they do not effectively ban farming or ranching activity.

Why a “right to farm” amendment?

The radical animal rights movement has a clear agenda: the eventual eradication of animal agriculture. Their schemes are manifest in campaigns, over the past decade, to drastically curtail the ability of farmers and ranchers to, well – farm and ranch.

For example, in 2008, out-of-state interest groups placed a measure on the ballot to regulate Missouri dog-breeders. Though the regulations appeared sensible, they sneaked a few under the radar for the purpose of putting most breeders out of business. One provision outright banned any breeder with more than 50 dogs. This provision would have put most breeders out of business. It would have also subjected the state to an expensive lawsuit for an alleged regulatory taking. Because that provision had nothing to do with actual animal welfare, the legislature subsequently amended it. In California, voters passed a chicken initiative that, if imposed in Missouri, would put most chicken farmers out of business.  (Attorney General Chris Koster, who also supports Amendment 1, has filed suit on behalf of Missouri farmers to invalidate this California law under a novel interpretation of the Dormant Commerce Clause).

The California chicken initiative dispels another lie advanced by opponents: that this is about big corporate farms. It’s well settled that 97 percent of Missouri farms are family-run operations.  Also important, expensive new government regulations actually favor big corporations over small businesses because big business is better situated to absorb the added compliance costs.

In fact, the Right to Farm amendment was initially thought-up and proposed by former Rep. Tom Loehner from Osage County – who, beyond being one of my favorite House colleagues, was also renowned for his stubborn independence. “Big Country,” as he was called in the House, could never be accused of corporate shilling. Loehner explained the genesis of Right to Farm in a letter he sent out this week – which I’ve appended to this report.

Big Country and Missouri farmers stand on one side.

On the other stands HSUS, the group that pushed both the Missouri dog amendment and the California chicken initiative. HSUS subscribes to the three Rs – but they’re a little different than you might remember. According to these animal rights activists, their goals are to reduce meat consumption, refine diets through free-range foods, and replace meat in Americans’ diets with plant-based foods. This same group claims that meat, egg, and milk production waste natural resources because farm animals require grain crops to eat.

This same out-of-state group is spending vast sums of money to spread lies and distortions about the impact of the Right to Farm Amendment. With their Three Rs goal, it’s not difficult to imagine why they’re willing to spend so much money here: Amendment 1 would restrict their ability to make animal agriculture a thing of the past.

Which brings me to my final point: Constitutional amendments are designed to protect us not just today but in the generations to come. Missouri is a world leader in agriculture. We’re a top ten state for cattle, hog, and turkey production, and a top 15 state for chickens. As of 2012, we had the second most farms of any state. The “Right to Farm” amendment protects Missouri farmers and our most important industry from out-of-state radical animal-rights interests for today and future generations.

As your state representative, I voted to put the “Right to Farm” Amendment on the ballot, and I’ll be voting for it again next Tuesday.

Where Amendment 1 Started

Where Amendment #1 Started

Former Mo. State Representative Tom Loehner

Osage County Family Farmer

                 False claims are being made all the way from Monsanto to the Chinese about where Amendment #1, the Farming Rights Amendment, originated.  Well, I can tell you exactly where it started…on the seat of my tractor.

While serving as a state legislator from Osage County in 2009, I was talking with some of my urban colleagues about agriculture.  It was obvious they didn’t understand where their food came from and moreover how it was produced.  This just indicates that most people today, urban and even some rural, are several generations removed from living on a farm.

Later as I was spreading fertilizer on my farm, I was thinking about this and the fact that we as farmers are experiencing more and more unreasonable regulations and limitations from outside interest groups such as HSUS, the Humane Society of the United States.   I thought about some language we could possibly legislate to provide protection for family farmers like me, and over the next couple of evenings, I would jot down some ideas for legislation and stick the paper in my pocket.

The next week in talking to some of my legislative colleagues, we decided to write language that would go in the state constitution.  In an effort to help protect our state’s number one industry, agriculture, it seems reasonable to place an additional 62 words (the length of Amendment #1) among the over 50,000  words of our current state constitution.

The proposed constitutional amendment was debated in the Missouri General Assembly over four legislative sessions and finally passed in 2013.  I can tell you first hand that Amendment #1 did not originate with any foreign interests, big farming outfits or agriculture corporations; it started on a 6080 Allis Chalmers tractor on a beautiful spring evening on a family farm.

Don’t believe the scare tactics of the opponents of Amendment #1 and their HSUS propaganda.  Please vote for Amendment #1 and help protect small family farms like mine.

The Chinese Buffet Analogy Returns

Shall the Missouri Constitution be amended to include a declaration that the right to keep and bear arms is an unalienable right and that the state government is obligated to uphold that right?

That’s the official question that Missouri voters will consider at the August primary election. But the questions behind the question are: Should we put an asterisk by the Second Amendment or should laws that impact Second Amendment rights be subject to the same rigorous judicial scrutiny as laws that impact the First Amendment and other fundamental rights?

In particular, this initiative, sponsored by Sen. Kurt Schaefer (R-Columbia), would amend Article I, Section 23 of the Missouri Constitution to require laws which restrict Second Amendment rights be subjected to “strict scrutiny” – the same legal test applied to defend freedom of speech and equal protection regardless of a person’s religion, race, or nationality.

Under the strict scrutiny test, a law only survives constitutional challenge if it is justified by a compelling governmental interest and narrowly tailored to achieve that goal or interest.

The United States Supreme Court has consistently applied the “strict scrutiny” test to rights it deems fundamental – those which are “implicit in the concept of ordered liberty” or “deeply rooted in this Nation’s history and tradition.”

For over a century, however, the Supreme Court did not consider any cases which required it to determine whether the Second Amendment was just such a “fundamental right.” Then, in 2008 and 2010, the Court decided the respective cases of Heller v. Washington, D.C. and McDonald v. Chicago.

In Heller, the Court struck a D.C. ordinance that prohibited the possession of handguns for nearly all residents. But because Heller involved an entity of the federal government and not a state, the Court did not directly decide whether the Second Amendment’s right to bear arms was a fundamental right that would be applied to the states.

Two years later, in McDonald, the Court struck a similar gun ban from Chicago. In the process, it took the next step, and held that the right to bear arms is a fundamental right. As explained by Justice Alito, “Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and … individual self-defense is the central component of the Second Amendment right.” Moreover, the Second Amendment, the Court found, is “deeply rooted in this Nation’s history and tradition.” In fact, it predates the United States. In 1689, the English Bill of Rights includes its own version of the Second Amendment – and in 1765, Blackstone described the right to keep and bear arms as “one of the fundamental rights of Englishmen.” Our Founding Fathers agreed and included the Second Amendment in the Bill of Rights.

Though it struck the gun bans in question in both Heller and McDonald, the Court declined to apply the same strict scrutiny test that applies to other fundamental rights. In Heller, Justice Scalia confessed to the gap that the Court was leaving in constitutional law, writing that, “since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than … our first Free Exercise Clause case left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications.”

Over the past two legislative sessions, I’ve frequently commented that our Constitution is not some cheap Chinese buffet where we pick-and-choose the provisions we like, and ignore the ones we don’t. That remark was made in the context of HB 436, a plainly unconstitutional bill that attempted to nullify all federal gun laws and criminalize their enforcement by federal or state law enforcement officials. As explained by Robert Levy, chairman of the Cato Foundation (the organization that found the plaintiff and funded the lawsuit in Heller v. D.C.), “With the exception of a few really radical self-proclaimed constitutional authorities, state nullification of federal law is not on the radar scope.”

The Chinese buffet explanation holds true here as well. Though some gun control groups may wish it weren’t so, there is no asterisk by the Second Amendment that permits courts to consider it a lesser part of our Constitution. For our state constitution, Amendment 5 fills the gap left by the Supreme Court decisions in Heller and McDonald, and ensures that, at least in Missouri state courts, Second Amendment rights will be accorded the same deference as every other fundamental right. I’m hope you’ll join me in standing up for the Second Amendment in August by voting Yes on Amendment 5.

Finally Free of the Veto Spree

Gov. Nixon concluded his annual legislative review this week. After spending January to May as a second-floor spectator, Gov. Nixon burst into action the past two months. In total, Nixon signed approximately 133 bills, punted on two, and vetoed a personal-record 33 bills. He fell two bills shy of the veto record for a single session – set by Gov. John Dalton in 1961.

Whether an override is attempted on any particular bill is determined by several factors. Among others, (1) how many votes the bill received during regular session; (2) whether Gov. Nixon raised a point in his veto message that wasn’t previously considered by legislators; (3) whether Democrats who voted for the bill in regular session are likely to stick with it over the governor’s veto; (4) whether other “more important” parts of a vetoed bill were signed into law through other bills; (5) if the vote total is close, how important the bill is.

Last year, the General Assembly set a record for veto overrides. With even more vetoes this year, it’s possible that the record will be broken again. This year, there are just over 20 bills that passed with super-majorities, or were very close. That said, it’s too early to tell how many override attempts will be made. I agree with Senate Majority Leader Ron Richard, who told the Post-Dispatch this week that lawmakers should carefully consider the bills “one at a time.”

Missouri-Based Education Standards

Gov. Nixon signed House Bill 1490 this week, which will require that the Common Core standards adopted by the State Board of Education undergo a rigorous review by Missouri educators and parents. This bill was passed due to concerns about the wholesale adoption of quasi-federal education standards with inadequate vetting at the state level.

Though some opponents of Common Core argued that the state should abandon the standards altogether, such a plan was not feasible, given all the work that the State Board and local districts had already completed to transition to the new standards. Abandoning the standards at this late date would have effectively left Missouri schools with no standards at all.

, I am generally leery, regardless of the issue, when state government adopts someone else’s rules or standards wholesale – whether those rules or standards come from the federal government, uniform laws proposed by the American Bar Association, or, in this case, from a consortium of states and education groups. When considering whether to import standards created by outsiders, it’s important for state government to go line-by-line through each proposal to ensure it’s the best policy for Missouri. And that’s exactly what House Bill 1490 is designed to do.

For those interested in Common Core, I encourage you to review primary source materials over secondary sources of commentary. The actual standards can be found at Also, the suggested readings and problems for English language arts can be found

Encouraging Ag and Vo-Tech Education

Our public education system serves many purposes. It helps ensure an informed citizenry. As Thomas Jefferson explained, the “diffusion of knowledge among the people” is the surest foundation “for the preservation of freedom and happiness.” It promotes equality of opportunity by providing a structure through which any child, regardless of their parents’ income or social status, can improve their lot in life.

It should also aid future economic vitality by preparing students for the real world. While we should strive to create an education system that prepares every child for college who desires  and works appropriately to get there, education policy is often overly-focused on college prep.

Look around you. Not every job requires a college education. And, though a college degree has been proven to lead to higher income, not every good job requires a college education either. The world will always need carpenters, plumbers, farmers, welders, electricians, machinists, and mechanics – to name just a few.

After ensuring basic education in civics, math, English, and science, it doesn’t make much sense to have identical graduation requirements for students interested in these career fields as those for students who want to go to college. I believe our education system should do more to prepare students who want to enter the workforce immediately.

House Bill 1189, sponsored by Rep. David Wood (R-Eldon), is a small step to encourage  agricultural and vo-tech education for the right students. . This bill requires the Department of Elementary and Secondary Education to allow students to count district-approved agriculture or vo-tech classes to replace one unit of academic credit in math, science, social studies, or English for any class that doesn’t require an end-of-course statewide assessment.

The Missouri Student Religious Liberties Act

Missouri students shouldn’t be required to check their religion at the door or argue points-of-view contrary to deeply-held religious beliefs in order to pass. Sometimes, however, local schools quash student religious expressions out of concern that allowing them violates the Establishment Clause of the First Amendment. American courts have been clear, though, that schools do not have to be religion-free zones. In fact, while a public school cannot endorse or require any religious activity, they also can’t discriminate against religious viewpoints.

This week, Gov. Nixon signed legislation to protect the religious beliefs of Missouri students by putting these First Amendment standards into Missouri statutes and requiring schools to adopt policies consistent with those standards.

House Bill 1303, dubbed the Missouri Student Religious Liberties Act and sponsored by Rep. Elijah Haahr (R-Springfield), protects the religious beliefs of Missouri students by putting these First Amendment standards into Missouri statutes and requiring schools to adopt policies consistent with those standards. Under HB 1303, schools must treat religious speech and activity in the same manner that they treat non-religious groups and non-religious speech. They must also allow students to express religious viewpoints in assignments – and grade those assignments by traditional academic standards regardless of the religious viewpoint expressed.

The bill was drafted to match existing First Amendment cases that protect students. As Haahr explained to the Missouri Times, “If there’s a 15 minute break … and students want to organize, on their own, a brief prayer … that’s something that is permissible under existing case law, but sometimes schools are stopping those things from happening because they believe they are crossing a line.”

The bill passed by overwhelming bi-partisan margins in both the House and Senate, and was signed into law this week by Gov. Nixon.

Deer, Life, and Food Pantries – But Not in That Order

Choose Life

On the issue of life, Gov. Nixon has flip-flopped for three decades. As a state senator in a relatively rural district, he declared himself pro-life. Two years later, in a run for the U.S. Senate, he continued to stand for the unborn. Then, when he decided to run for Attorney General, he evolved. As Governor, he has abstained – thrice refusing to veto pro-life legislation and instead letting the bills become law without his signature. Last week Gov. Nixon abstained no longer when he vetoed House Bill 1307, which would extend the waiting period for an elective abortion in Missouri from 24 to 72 hours. Increasingly his custom, Gov. Nixon sent an angry veto message to the legislature.

Like trains passing on a moonless night, the opposing sides of the life issue travel on parallel tracks. For those who are pro-choice, abortion is an act of freedom often because either they do not recognize the existence of a human soul inside the would-be mother or they substitute the would-be mother’s beliefs about the moral value of that life for God’s. To the pro-choicer, there’s only one person involved – and that is why the issue is often framed solely as one of women’s rights.

For those who are pro-life, of course, there’s much more to it than that. We believe that a human soul is created at conception  — and that the moral value of that human soul is not dependent on anything other than its very existence. In an abortion, there’s not just one soul at risk, but two.  And one of those souls is defenseless.

The Supreme Court has made it clear that states can enact abortion regulations to encourage citizens to choose life – so long as they do not impose an “undue burden” on abortions. Courts have upheld 24 hour waiting periods, and I believe they will uphold a 72 hour waiting period as well.

House Bill 1307 addresses our moral obligation to protect the vulnerable and innocent by building additional reflection time into the process before deciding to go through with an abortion. The change is grounded in the hope that a little extra time may save lives of the unborn. In regular session, the bill passed in the Senate with one vote short of a veto override (with one Republican absent) and with a few extra votes in the House. It’s going to be close, but it presently appears that an override is likely.

Food Pantry, Pregnancy Resource Center, and Maternity Tax Credit Overrides

On Wednesday, Gov. Nixon vetoed House Bill 1132, a bill that would increase the tax credits available to food pantries, pregnancy resource centers, and maternity homes by $1.5 million per year. These tax credits help charitable organizations like the Samaritan Center and the Pregnancy Help Center here in Jefferson City serve food and provide maternity services to Missourians in need. Better yet, its structure as a public-private partnership  increases fundraising and makes success more likely because these organizations have deeper community support than straight government spending. The bill passed by wide bi-partisan margins of 30 to 1 in the Senate and 121 to 25 in the House. This bill will be overridden.

Are Deer Livestock or Game?

On Tuesday, Gov. Nixon vetoed two bills designed to transfer authority for regulating captive deer from the Department of Conservation to the Department of Agriculture under the theory that captive deer are livestock not wildlife. This is a complicated controversy years in the making.

For years, Conservation has been concerned about the spread of chronic wasting disease (CWD) in Missouri’s deer herd. The Department’s biologists believe captive deer and, more precisely, the frequent influx of out-of-state deer to these facilities, is a prime cause of the disease. On the other side, Missouri deer-breeders vigorously dispute that their operations cause or spread CWD.

In their efforts to prevent further incidents of CWD, the Conservation Commission proposed a set of stringent rules for captive deer. Some of these rules are likely unconstitutional, in danger of being struck by courts as arbitrary and capricious, or because they amount to a regulatory taking of private property without just compensation.

Every action has a reaction. Before those rules were published, a few bills started moving in the legislature. After the rule, the bills really grew legs.

I voted no because Article IV, Section 40(a) of the Missouri Constitution grants the Conservation Commission the exclusive authority to control, manage, restore, conserve, and regulate “bird, fish, game, forestry, and all wildlife resources of the state.”

Are deer game, wildlife, or livestock?

Missouri’s deer-breeders claim they are just livestock because they’re kept in an enclosed space, raised from birth, and tame. They argue, “How can they be wildlife when they’ve never been outside captivity?” But there are two responses to this. First, an originalist response – that, for purposes of Article IV, Section 40(a), “wildlife” means those animal species that were wildlife in Missouri in 1936, when the provision was added to the Constitution. Second, “wildlife” is not all that Conservation has exclusive authority to regulate. Conservation’s constitutional mandate extends to “game” as well. Many deer-breeders in Missouri run their operations for hunters to shoot deer on their ranches. When a word is not defined in the Constitution or a statute, courts look next to the dictionary for a definition. Merriam-Webster’s online dictionary defines “game” as “animals under pursuit or taken in hunting.” I believe this common sense definition is fatal to the deer-breeders constitutional argument for those breeders who market their ranches for hunting and who raise deer to be sold to hunting ranches.

Unfortunately, the bills that passed also included several other non-controversial and important provisions for Missouri agriculture. The bills had 107 votes in the House – two shy of the magic veto override number. I am confident that the deer-breeders will sue to invalidate Conservation’s regulations, and I hope they are successful for those that are arguably arbitrary and capricious. In the legislature, I predict a tough fight for an override, but one that will ultimately come up short.

Privacy in the Digital Age

Two hundred thirty eight years ago this week, a patriotic group of farmers, merchants, preachers, and lawyers gathered in Philadelphia. History shows this small group included the finest collection of political philosophers the world has ever known. They were willing to risk their fortunes, life and limb  in pursuit of freedom.
These men were raised in an Age of Enlightenment. “Because the King says so,” may have
been good enough for some Loyalists, but not for our Founders. The people existed not for the benefit of the King’s government, but the other way around. They believed in reason and the freedom it both inspired and required. If men were angels, no government would be necessary, but men aren’t, so governments must be formed in a way to protect people from one another – and to protect people from government itself. Since the Magna Carta in 1215, British subjects enjoyed unprecedented freedom from arbitrary government power. But not all of the “rights of Englishmen” were recognized for colonial subjects. One of the earliest examples of British overreach involved the widespread use of ‘writs of assistance,’ legal documents which allowed colonial officials to search the belongings or homes of colonists anytime and anywhere they pleased — often for  innocent items deemed illegal under controversial British laws. This enraged the colonists.

As Chief Justice John Roberts explained last week:

In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams attended, and would later write:   “Every man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.” According to Adams, Otis’s speech was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.”
Since the Fourth Amendment was added to the Constitution with the Bill of Rights, our Supreme Court has been the last guardian of freedom against newfound technologies that amount to modern day writs of assistance. The traditional liberal-conservative divide at the Court centers on competing views of the Constitution:  either as a ‘living document’ which invites liberal judges to  shape social policy without a vote, or as a static document, grounded in the rule of law, under the concept of originalism. The Fourth Amendment, however, is a constitutional bridge across this divide. It protects our right to be secure from “unreasonable” searches and seizures and requires probable cause before a judge may issue a warrant to allow a search. With advancing surveillance technology, the Supreme Court must constantly consider how intrusive technologies, which our Founders could never have envisioned, reconciles with  language that was added to our Constitution more than 200 years ago. In the past 20 years, the analysis has become more difficult and important. Today, nearly everything is connected – and trackable. Smart phones, for example, can contain every book we’ve read, contact information for every person we know, and a history of every communication we’ve made in the past few years. The coming ‘Internet of things’ will add even more to your data profile. It is not difficult to imagine a future in which your every movement, purchase, meal, bathroom break, communication, and thought will be recorded somewhere by someone or something. In many ways, we already live in that world. And if private companies have access to that information, you can bet the government won’t be far behind. If we don’t curtail government power, private companies may create a turn-key solution for totalitarianism. If freedom means more than not being locked indiscriminately in prison, it must also include the ability to think, converse, write, travel, and associate free from concern that the government is watching. As the Supreme Court explained, “the right to be let alone” is “a fundamental human right,” “the most comprehensive of rights and the right most valued by civilized men.”

Thankfully the Supreme Court has entered the breach.* Last year, it ruled that police could not place a GPS device on a suspect’s car unless they had a warrant. Last week, it unanimously ruled that you have a right to privacy in the digital contents of your cell phone which prohibits police from accessing it without a warrant.

As your state representative, I try to view policy proposals from both a practical and a philosophical point of view. It’s not often, however, that the legislature reviews an issue that goes to the very heart of the Revolution or to “a fundamental human right.” It’s even less often that the people get to vote on such an issue.

Amendment 9, which will appear on the August ballot, goes to the very heart of what I believe it means to be an American. It asks:

  • Shall the Missouri constitution be amended so that the people shall be secure in  their electronic communications and data from unreasonable searches and  seizures as they are now likewise secure in their persons, homes, papers, and effects?
Opponents argue that this measure would impair law enforcement’s ability to gain access to digital information. But they conveniently ignore that Amendment 9 only limits the government’s ability to track or access electronic communications and data in an arbitrary fashion. If police have a reasonable suspicion of criminal activity based on articulated facts, they should simply apply for a search warrant — which judges routinely grant. And just as technology is increasing government’s ability to intrude, so too is it accelerating the process of obtaining a warrant. Amendment 9 merely seeks to balance the playing field. Because without privacy, there is no liberty. In August, please join me to stand on the shoulders of James Otis and our Founders to update the Missouri Constitution’s equivalent of the Fourth Amendment.  Vote yes on Amendment 9 to protect our right to electronic privacy.
* It’s also important to note that, in addition to the Fourth Amendment and its state equivalents, Americans enjoy statutory rights to digital privacy that can be found in both federal and state law, including but not limited to the Wiretap Act, the Stored Communications Act, the Computer Fraud and Abuse Act, the Pen Register Act, and the Video Privacy Protection Act. 

The Budget Bludgeon Returns

On Tuesday, Gov. Nixon announced $786 million in budget vetoes and withholds. Then he blamed the legislature for ruining the economy through inaction on Medicaid and a series of sales tax bills passed in the last week of session.

Gov. Nixon is dead wrong on the first charge. And mostly wrong on the second.

First, let’s go back to January – when Gov. Nixon proposed a budget that was an estimated $310 million in the red. The cause of Gov. Nixon’s deficit was nearly evenly split between his own delusional  estimates of economic growth ($160 million) and his insistence that the legislature bet the budget on future revenue increases from long-shot policy proposals ($150 million).

The legislature did the right thing and declined to follow Gov. Nixon’s irresponsible budget. Instead, we took a conservative approach, refusing to roll the dice on bills that weren’t yet law. In the end, we passed a budget that was significantly smaller than Gov. Nixon’s proposal. 

Gov. Nixon’s actions this week cut even further. If the legislature had agreed to Gov. Nixon’s pie-in-the-sky-spend-it-fast budget proposals, this week’s vetoes would have been $310 million more.

Slow economic growth right now has nothing to do with the legislature’s failure to pass a Medicaid bill during this past session. Putting aside any beliefs on Medicaid’s impact on the economy, even if the legislature had passed such a bill, it could not have been implemented in time to have any impact on the economy today. In fact, the only bills worth discussing would require extensive waivers from the federal government to allow Missouri to re-invent Medicaid in a free market conservative mold – and negotiations on those waivers would take months.

Second, Gov. Nixon has overstated the costs of many of the sales tax bills that he vetoed. He pins the collective cost of those bills at $776 million. But officials in the Nixon administration were singing a different tune during the past legislative session – or, in some cases, not singing at all. On most bills, Gov. Nixon was AWOL. On other bills, his officials indicated cost during session which was significantly less than the cost claimed in Gov. Nixon’s veto letters.

With his actions this week, Gov. Nixon returned to the tactics of last summer when he withheld millions of dollars in education funding to scare legislators away from voting to override his veto of an income tax cut. When a chisel or hammer might be needed, Gov. Nixon never fails to bring a bludgeon.

It’s an open question whether the legislature will override any of the sales tax vetoes. But it won’t be the result of the bullying bludgeon strategy. Instead, Gov. Nixon’s veto messages identify ambiguities in several of the sales tax bills which should cause serious concern..

For example, Senate Bill 612 provides in part that the Department of Revenue must notify taxpayers anytime sales tax is applied in a new way to goods or services before taxes can actually be collected. Everyone should agree this is a good concept. The devil, however, is in the definition of “notify.”  Gov. Nixon’s veto letter identifies an ambiguity that could be construed to make the measure cost as much as $200 million per year. While I doubt Gov. Nixon’s price tag, unlike his Chicken Little argument on alleged ambiguities in this year’s income tax cut bill, he has a point with SB 612. 

A Wait-and-See Approach to Local Budget Vetoes and Withholds

Tucked among Gov. Nixon’s 213 separate budget actions were several items which impact mid-Missouri. He line-item vetoed $6 million to convert St. Mary’s into a new state office building and money for maintenance and upkeep at the state capitol. He’s also withholding money for the state employee pay raise and deferred compensation contributions. With regard to the vetoes, I will work with colleagues from mid-Missouri, including Sen. Kehoe and Rep. Bernskoetter to try to override Gov. Nixon’s decisions. I’m particularly disappointed in his decision for St. Mary’s – an idea for which he joined Sen. Kehoe, Rep. Bernskoetter, and myself in early January to announce his support – and one which would save the state money over the long-term and improve education opportunities in mid-Missouri. Regarding the withholdings, I’m cautiously optimistic that the money will be released later in the year – after veto session.

Where’s Gov. Nixon’s Plan for Education?

Gov. Nixon also vetoed the most substantive education reform bill that the legislature has passed in 20 years. I’ve written several times on the substance and potential impact of Senate Bill 493. It was designed to give students in struggling districts the same opportunities that students in affluent areas enjoy. While Gov. Nixon armchair quarterbacks SB 493, he still hasn’t put forth his own proposal. It’s far easier to take shots at the players from the comfort of his office on the second floor than to put on the pads and enter the arena of ideas.

Nixon Veto Will Lead to Future Unemployment Tax Hikes

Those who ignore the past are destined to repeat it. Sen. Kehoe had that adage in mind when he sponsored legislation this year to reform Missouri’s unemployment benefits system.

Unemployment benefits are a forced short-term insurance plan administered by the government to guard against the temporary setbacks of workers who lose their job through no fault of their own. To administer unemployment benefits, government takes money from working Missouri employees by taxing Missouri employers to give short-term payments to eligible Missouri workers.

Unemployment benefits are different from typical federally administered social welfare programs because they are funded almost entirely by the state. When the economy is humming, the UI Trust Fund collects sufficient taxes to pay ongoing claims. But when the economy slows, Missouri’s UI Trust Fund has a history of falling behind. When that happens, Missouri goes hat-in-hand to the federal government for a loan. In the last recession, Missouri joined 35 other states in the beggar’s line. Ultimately, Missouri borrowed more than $700 million. Consequently, Missouri employers were hit with an additional tax of approximately $84 per employee.

Senate Bill 673, which I carried in the House for Sen. Kehoe, would help Missouri avoid this spend-borrow-tax trap in three ways. 

First, it would require the state board, which oversees the UI Trust Fund, to consider bonding as an alternative to borrowing from the federal government. In the last borrowing cycle, the board refused to even consider the idea. However, in future scenarios, it may be cheaper for Missouri employers to bond debt over a longer period of time rather than face steep tax increases in the short-term and in the middle of a recession. In this regard, SB 673 merely ensures that the board considers all options.

Second, it would increase the amount the UI Trust Fund would keep in reserve from $750 million to $870 million before reducing the unemployment tax. The rationale, naturally, is that the larger the cushion, the less likely the state will be asking the feds for a loan. 

Third, SB 673 would tie the length of unemployment benefits to the unemployment rate. Under current law, recipients are able to receive benefits for 20 weeks. Under SB 673, eligibility would be shortened as Missouri’s economy improved. If the unemployment rate fell below 6 percent, benefits would only be available for 13 weeks. This would reduce payouts from the UI Trust Fund and make future borrowing less likely.

Unfortunately, Gov. Nixon vetoed SB 673 this week. In his veto message, Nixon argued that the bill was no longer necessary because the UI Trust Fund just recently (and finally) repaid the loan it received from the feds in the last recession. In this Gov. Nixon is like a homeowner who rebuilds in the same flood plain without a levee or any other protective measure. “The water has receded,” Gov. Nixon proclaims, “We don’t need a levee!”

Gov. Nixon next argued that reducing the duration of unemployment benefits in good times would “be damaging to our economy.” That statement relies on the same big-government multiplier-effect philosophy that justified Gov. Nixon’s attempted $2.4 billion giveaway to Boeing. The theory follows: when government spends “X,” it stimulates the economy and it receives “X times Y” in economic benefits.

For some categories of spending, this may actually work. Take, for example, police, fire, roads, and education. It’s generally agreed that some level of government spending on these items returns multiples of economic benefits because they serve as the infrastructure for a functioning economy. But unemployment benefits are different – they are instead a straight wealth transfer from people who are currently working to people who are not.

In today’s economy where decisions on Wall Street can cause pink slips on Main Street, unemployment insurance is a vital cushion for those Missourians who lose their job through no fault of their own. SB 673 recognizes we have finite resources and, accordingly, prescribes that benefits should move with the economy.

As with every other social welfare program, economic research has shown that incentives matter. According to Alan Krueger, President Obama’s top economic adviser from 2011 to 2013, extended unemployment benefits correlate with longer spells of unemployment. Not surprisingly, the job-finding rate of Americans on unemployment jumps just before benefits expire – and, in states with more liberal unemployment benefits, recipients don’t search for a job as intensely as those in states with more conservative benefits.

Other studies from Fed economists have found that extensions of unemployment benefits increased the unemployment rate in the last recession, particularly among highly-educated workers who become “more relaxed and more patient in selecting jobs” as duration of benefits increases. Yet another study found that, contrary to Gov. Nixon’s argument, “UI benefits and contributions provide little impact of consequence upon general economic activity.”

In addition, money to fund unemployment insurance isn’t just plucked from a tree. Nor is it a matter of “Brinks Truck Economics” — the theory that a state benefits by asking the federal government to send a truckload of money to be distributed in that state as opposed to some other state. Unlike other federal social welfare programs, money for unemployment funds is generated by a tax on employers for every employee in our state.

When the economy turns south and Missouri has to borrow from the federal government, the UI tax is increased. Raising taxes in a recession is something even Gov. Nixon would have to admit is a bad idea. Yet, by vetoing SB 673, if history is our guide, Gov. Nixon has nearly guaranteed that unemployment taxes will be raised in a future economic downturn.

I, of course, believe the legislature should override this veto, but it’s unclear at this point whether there will be enough votes. The bill passed with a veto proof majority in the Senate, but had only 101 votes in the House. I believe six additional votes will be available in veto session, but that’s two shy of an override. As we get closer to September, we’ll know more. 

Melanoma Isn’t Cool

Melanoma kills more women between the ages of 25 and 40 than any other form of cancer. But it kills even more men. According to the American Cancer Society, melanoma will kill 6,470 men and 3,240 women in 2014. And it’s metastasizing. Of the seven most common cancers in the United States, melanoma is the only one whose incidence is increasing.

Like lung cancer and other smoking-related illnesses, we often know what causes skin cancer. Research shows that the risk for melanoma increases substantially the more a person is exposed to UV rays in their childhood and teenage years. A study from the World Health Organization found that people who used tanning beds before the age of 35 were 75 percent more likely to get melanoma. A study by the Mayo Clinic discovered an eight-fold increase in the overall incidence of melanoma between 1970 to 2009, which researchers attributed in part to increased use of tanning beds.

The good news is that skin cancer can be prevented for most people by doing a few easy things: (1) avoid tanning beds, (2) use sunscreen, and (3) do self-skin checks.

Tanning bed legislation has triggered vigorous debate in the capitol. Tanning industry defenders have clouded the issue by claiming that any attempt to limit a child’s access to tanning beds is an attack on freedom. When it comes to adults, I lean libertarian. I’ve voted every year to allow motorcycle riders the freedom to ride without a helmet. Last week, I wrote about legislation to allow adults facing terminal illnesses the right to save their own life by trying drugs that haven’t yet been approved by the FDA. And I don’t believe government can or should try to force you to buy any health care service or product.

But children are different. Children are not now and have never been “free” – not in my house now or growing up, or in society at large.  Nor have businesses ever been “free” to engage in business with children in the same way that they do with adults.

Civilized societies use the law to protect children. The United States Supreme Court has recognized that “children have a special place in life which the law should respect” for at least three reasons: (1) their vulnerability, (2) their inability to make critical decisions in the same manner weighing the risks and benefits as adults; and (3) the obvious importance of parents’ in making important decisions for them.

In Missouri and elsewhere, we have dozens of laws which limit or outright criminalize a business from engaging in certain business with children that are completely legal for adults. For example, we criminalize the sale of other known carcinogens like cigarettes and smokeless tobacco to children. We prohibit the sale of alcohol and pornography. We ban child labor outside of family-run farms or businesses. And, like every other state, we only allow businesses to enforce contracts against minors in very limited circumstances.

In this past session,  the General Assembly took action to better inform and empower parents. House Bill 1411, sponsored by Rep. Gary Cross, requires parental consent before a child 17 or younger uses a tanning bed. The Department of Health and Senior Services is charged with developing the content of the consent form which should inform parents of scientific research on the subject.

Incredibly, as we were debating the bill, defenders of the industry once again made their charge for freedom. Never mind the fact that the bill doesn’t ban anything, but instead merely requires a business to get permission from a child’s parents before exposing the child to known carcinogens. So long as the parent is informed and gives their consent, the business is free to allow a child to hop into their cancer-machine.

Opponents of the bill spoke as if a law like this was unheard of –except Missouri law already requires parental consent to get a tattoo, an aspirin at school, or pierced ears. When this point was presented, opponents claimed, “Well, tattoos and pierced ears are permanent.” Sorry, but no, they’re not. Tattoos may be a little harder to remove, but piercings close –and neither tattoos nor piercings carry the risk of terminal illness. Skin cancer causes long-term harm. And death from melanoma is as permanent as it gets.

Thankfully, proponents of parental involvement and public health won this year. After three years of tireless work by Rep. Cross on the issue, HB 1411 passed through the legislature – and was signed into law last week by Gov. Nixon.