A Crazy Abortion Lawsuit and Legislating Morality

This is not just a bad joke. This week in federal court a group of devil worshippers sued to overturn our state’s restrictions on abortion as a violation of their First Amendment rights to freedom of religion and the Establishment Clause. (I’m not just calling them devil worshippers. The suit is literally brought on behalf of “The Satanic Temple.”)

While absurd, this lawsuit strikes at the heart of a key point in the abortion argument and governing philosophy in general. Abortion defenders often claim, “Well, you can’t legislate morality.” Not true.

We “legislate morality” all the time. In fact, most laws involve some moral judgment. Prohibitions on murder, rape, theft, assault, slavery, you name it, all involve moral judgments. Even civil laws with no criminal consequence involve morality. Take, for example, the Senior Savings Protection Act – which I handled and Gov. Nixon just signed – it’s underlying premise is that it’s morally wrong for a swindler to steal from vulnerable Missourians, so the law makes it easier to stop that fraud. That’s legislating morality.

Do these laws violate the Establishment Clause because they’re based on morality that’s entirely consistent and derived from religious values that are shared by nearly all religions? Of course not. Neither do our restrictions on abortion, an event that ends a life. In the case of the 72 hour waiting period, it’s not too much to ask three days wait before taking an entire lifetime away from a child.

Usually when someone argues, “We can’t legislate morality,” what they really mean is just, “We shouldn’t legislate morality” in this situation. In some senses, the statement that “we can’t legislate morality” is also true. No law will ever eliminate fraud or crime or any of the other things we prohibit or limit. Human beings will make bad choices regardless of what government tries to do. But that doesn’t mean we shouldn’t try. 

Gov. Nixon Lucy’s the Legislature on Education

Poor Charlie Brown. He wanted to be a place-kicker. He just needed someone to hold the football up for him. Along came Lucy. She teed the ball up for him and told him it was time to kick. Then, just as Charlie was about to kick the ball, Lucy would swipe it away.

On Friday, Gov. Nixon vetoed House Bill 42, an education reform bill sponsored by Rep. David Wood (R-Versailles). In the process, he pulled a Lucy.

This was not the first education transfer bill to cross Gov. Nixon’s desk. Last year the bill was Senate Bill 493. I was involved in its formation and passage. We held dozens of meetings with legislators of both parties and across the ideological spectrum. In the end, we passed a bi-partisan, cross-regional bill. Gov. Nixon vetoed it.

In his veto message from last year, Gov. Nixon said he had four major problems with the bill.

First, it included a “private option” that would allow children in failing schools within failing school districts to transfer to private schools if those private schools agreed to accept a lower tuition rate than the traditional public schools to which those same children would be eligible to transfer under current Missouri law.

This provision would have saved “sending” districts money, alleviated pressure on “receiving” districts, and given children and their parents in poor neighborhoods similar opportunities that children of middle class and wealthy families enjoy.  Nevertheless, equality in educational choice was too much for Gov. Nixon. It’s too dangerous for Gov. Nixon and the defenders of the status quo to allow poor families, no matter how desperate, the freedom to make their own choices. (It’s also relevant to mention that these eligible private schools would have had to abide by the same regulations as public schools, could not have been controlled by any religion, and could not have required students to take any religion classes.

The legislature listened to Gov. Nixon and took this extremely limited private option out of the bill.

Second, Gov. Nixon said he could not sign the bill because it did not provide any transportation funding for transfer students. I agreed with Nixon on this point and the legislature fixed that flaw.

Third, Nixon said he disliked a provision in the bill encouraging receiving districts to accept a lower tuition by not counting the transfer student scores in statewide assessments for five years. Again, I agreed with Nixon on this. And again, the legislature fixed the problem in this year’s bill.

Fourth, Nixon complained that a “hardship transfer” provision in the bill was unrelated to the bill’s real impetus. That was certainly true. So, the legislature removed it from this year’s bill.

In January, I attended a meeting with two members of Gov. Nixon’s staff and eight other key House members on education. Gov. Nixon’s staff laid out his requirements for a bill. There was great hope that we could reach an agreement. Although I wasn’t integrally involved in the bill process this year, I heard from several people that the governor’s office actually engaged on the bill.

Like Charlie Brown, the legislature tried. We trusted Gov. Nixon was holding the ball in good faith. On Friday, Gov. Nixon yanked the football away. We will not fall for his trick again. Student transfer legislation is finished during the Nixon Administration. It will take a leader who can be trusted in the governor’s office before the legislature is willing to make another run at it.

Schaaf v. Nixon – Plaintiffs’ Legal Memo on Why the New Proposed Stadium Plan is Illegal

Schaaf v. Nixon – Plaintiffs Suggestions in Support of Motion for Preliminary Injunction

Hearing on Tuesday

In response to the plaintiff Missouri taxpayers and legislators motion for preliminary injunction and request for an order regarding collateral estoppel and the litigation in St. Louis City this morning, the Attorney General quickly filed a motion for change of judge on behalf of Gov. Nixon. The plaintiff Missouri taxpayers and legislators in Schaaf v. Nixon filed the following response:

Schaaf v. Nixon – Plaintiffs’ Response to Nixon Change of Judge and Renewed Notice

Stadium Lawsuit Documents

Schaaf v. Nixon – Plaintiff Jay Barnes Motion for Preliminary Injunction

Schaaf v. Nixon – Motion on Collateral Estoppel

Schaaf, et. al. v. Nixon, et. al. – Plaintiffs First Amended Petition for Declaratory Judgment and Injunctive Relief

Schaaf, et. al. v. Nixon, et. al. – Plaintiffs Response to Def. Nixons MTD

Schaaf v. Nixon – Nixon MTD

The Stadium Lawsuit

Three weeks ago, I joined five other legislators in suing Gov. Jay Nixon and the St. Louis Regional Convention and Sports Complex Authority over their plan to spend more than $400 million in taxpayer money on a new stadium that is more than half a mile away from the Cervantes Center.

We filed the lawsuit as ordinary taxpayers, but obviously with our role as state legislators in mind as well. To date, I have refused public comment on the lawsuit other than through the briefs I filed. On the day we filed suit, I received dozens of phone calls from media – including national media. I declined to speak with them.

The reason is simple: I didn’t file this lawsuit to get into the news. I filed it because I have serious concerns about Gov. Nixon’s attempt to run roughshod over the rule of law. Current state statutes put stop signs in place to prevent the accumulation of millions of dollars and decades of stadium debt without further legislative action. Whether a taxpayer-funded new stadium is a wise investment is not relevant to this case. The law is what matters, not economic projections.

Rather than seek legislative approval by changing current statutes, Gov. Nixon effectively decreed on his own that the twenty-six year old statute created a never-ending blank check to fund new stadiums. After we sued, Nixon blitzed St. Louis sports media and argued that the fact there are only six of us is proof that the legislature supports what he’s doing.  

Gov. Nixon knows that’s a lie. Every senator voted against Nixon taking unilateral action. And the Senate placed language in a budget bill to that effect, but it was scuttled in conference committee at the behest of now-resigned Speaker John Diehl. If we would have had a vote in the House, it would have been overwhelmingly against Gov. Nixon.

Nevertheless, these actions were not necessary. The current statutes prohibit what Gov. Nixon is doing. We have made five claims in the lawsuit, but three relatively simple ones are more important than the other two.

First, the statute that created the mechanism for building stadiums with taxpayer funded bonds prohibits refinancing or extending the bonds in a way that increases the amount of principal or interest owed. Yet, Gov. Nixon’s plan would increase the amount of principle and interest owed by hundreds of millions of dollars.

Second, the statute prohibits stadium bonds that have a maturity date in excess of 50 years. The original bonds for the stadium began in 1991. The 50 year period for the stadium bonds expires in 2041. Yet, Gov. Nixon’s plan would extend the bond payments until 2048 at the rate of $12 million per year.

Third, the statute requires that any new football stadium must be build “adjacent to an existing convention facility.” The only “existing convention facility” at the time the legislation passed in 1989 was the Cervantes Convention Center. This language did not just magically appear in the bill. It was added by a House committee after hearing testimony that the purpose of the bill was to “finance the construction of an exhibition center adjacent to the Cervantes Convention Center.”

A memo to the committee explained, “The new complex would be the largest convention center on one level in the United States and would allow St. Louis to host both more and larger conventions and meetings than can be accommodated today.” Almost as an afterthought, the memo mentioned, “The facility also could be used for professional football games and other major events.”

The Cervantes expansion had been a major goal of St. Louis City for at least three years. In February 1986, St. Louis Mayor Vince Schoemehl announced plans for expansion and appointed a committee to explore funding options. In May 1986, he announced plans to, in the words of the St. Louis Convention and Visitor’s Commission that operates the Dome today, “pursue the construction of a domed expansion to the convention center which includes exhibition and meeting space and more than 60,000 fixed seats.”

Gov. John Ashcroft signed the bill into law on the last possible day in 1989. At the signing, he barely mentioned football. Instead, he noted the bill was “but a first step in a long process necessary for potential expansion of the St. Louis Convention Center.”

Twenty-six years later, Gov. Nixon’s proposed new stadium is more than half a mile away from the Cervantes Center. That’s seven to nine city blocks. In between stands an Interstate highway, several city streets, blocks of proposed parking lots, other lots, and even a casino. To put that in Cole County perspective, the Proposed New Stadium is farther away from the Cervantes Center than Capital Plaza Hotel is from the Cole County Courthouse. Imagine if our City Council or County Commission tried to argue it was building an annex to the courthouse located in the parking lot of Capital Plaza.

When we filed the lawsuit, I anticipated a spirited defense by Gov. Nixon and the Convention and Sports Complex Authority. But, a recent turn of events shocked me.

In March, the Convention and Sports Complex Authority sued the City of St. Louis seeking to overturn a city ordinance that would require a public vote before any city taxpayer funds went to a new stadium. It’s a friendly lawsuit. St. Louis Mayor Francis Slay supports the new stadium.

Last Friday, the City of St. Louis filed a counter-claim based on the same “adjacency” issue we identified in our lawsuit. From afar that would seem good for taxpayers. Turns out, if you look closely, the City’s “adjacency” counterclaim is made in way that seems designed to lose. Why? My theory is that stadium supporters want to use a favorable ruling in the Circuit Court of the City of St. Louis based on slipshod arguments to prevent the plaintiffs in our lawsuit, representing Missouri taxpayers, from having their day in court in Cole County. They could argue this under a legal doctrine called collateral estoppel. Under this, a party simply says, “Look judge, this issue has already been decided in another case. You have to follow that prior decision.”

On Friday, I sped up the time frame in Cole County by filing a motion for preliminary injunction and noticing it up for hearing this Tuesday. Missouri taxpayers deserve a fair hearing in this case after vigorous argument from adversarial parties. Gov. Nixon does not get to decide on his own whether he has legal authority to do this, and we will not let St. Louis political power brokers prevent us from having our day in court on behalf of Missouri taxpayers.

This lawsuit started with concerns over the rule of law. The City of St. Louis and Convention Authority upped the stakes last Friday. I’m confident that the case will have a fair hearing in Cole County with both sides zealously represented. I don’t believe the other side has even a colorable case. But, just as Gov. Nixon doesn’t get to decide, neither do I. Instead, a judge will rule – a Cole County judge to start, which is appropriate because this is a state taxpayer lawsuit and this is the seat of state government. Eventually, it may be decided by seven judges on the Missouri Supreme Court. 

Moberly’s Mamtek Microcosm

Bruce Cole plopped into Missouri five years ago with a baited line. Through a “site consultant,” Bruce Cole contacted several Midwestern states promising jobs if Mamtek could secure some economic development incentives. In March, Missouri’s Department of Economic Development and Moberly bit – hard. 

Cole claimed Mamtek had a fully operational sweetener plan in Wuyishan City, China. They were looking to expand to the Midwest to take advantage of new contracts.

On April 8, 2010, DED asked Edward Li, a contractor in Shanghai, China employed by Armstrong Teasdale, to investigate Mamtek’s China operations. What Li found should have stopped the project immediately. On April 13, he explained, “We found (Mamtek’s) plant in Fujian Province, China, never started to manufacture.” On May 17, Li followed up that he still had not found a Mamtek manufacturing plant in China.

In mid-May 2010, Morgan Keegan was hired to underwrite bonds for Mamtek’s new taxpayer-financed plant in Moberly. Armstrong Teasdale was then hired as counsel for the bonds. (Yes, the same firm whose employee found Mamtek didn’t have a China plant.) 

On June 3, 2010, DED and Moberly received “due diligence” documents from Mamtek – a business plan, purported letters of interest from sweetener customers, and a financial statement claiming $7.2 million in cash or equivalents. Neither DED nor Moberly followed up on the documents. If they had, they would have quickly discovered that the letters of interest were boilerplate and the $7.2 million did not exist.

If Moberly or DED had simply run a background check on Bruce Cole, they would have learned that, around the same time, a previous investor had sued him for $250,000, American Express had filed a lien against him for $135,000 for credit card debt, and he had defaulted on the $3.7 million mortgage on his Beverly Hills home.

On July 9, Gov. Nixon visited Moberly and announced that, with the help of DED and Moberly area leaders, Mamtek would create 612 new jobs. The “incentive” package offered by the state included $17.6 million in so-called jobs tax credits and block grants. An additional $37 million would be provided through bond sales “initiated, structured, and committed by the city of Moberly.”

The project collapsed by winter. In the summer of 2011, I led an investigation into the Mamtek fiasco. We issued a bi-partisan and unanimous report. Many parties were to blame – most obviously Bruce Cole and Mamtek. Nevertheless, the fraud should have been caught by DED, Moberly, and the financial professionals hired to conduct due diligence. It wasn’t particularly sophisticated and the scheme could have been unraveled just by a few background checks.

At the time of our hearings, DED and Gov. Nixon’s office claimed no real harm was done in Moberly because the state tax credits were never actually issued.  They were dead wrong. There were Missouri small business owners who had contracted with Mamtek believing that, since the company had the backing of the state and Moberly, it would be good for its word. After all, Gov. Nixon dropped in for a huge event calling Mamtek the future of Moberly’s economy.

Two of those small business owners were Denice Burks and her brother Darrell Kolb. They own Stockman Construction in Jefferson City. In 2010, they’d only owned it for five years. The Mamtek contract was a big deal for them. They completed $800,000 worth of work in infrastructure improvements around the plant – and waited for full payment. It never arrived. When the sweet turned sour, Stockman hired a lawyer to get paid for their work. They were told to wait in line. By this summer, they had spent nearly $100,000 in legal fees chasing payment for the project both Gov. Nixon and Moberly touted.

Then, last year, Moberly decided it would take advantage of the work Stockman Construction had done around the site. Moberly wanted another contractor to finish the job Stockman had stopped when it became clear they’d never be paid. So it bid-out the add-on project.

Burks and Kolb were hopeful. Since Moberly was now going to obviously benefit from the improvements Stockman had made, maybe Moberly would pay them for their work. They set out to exercise their First Amendment right to petition the government. In this case, they merely sought fairness, to be paid for the work for which they were stiffed because Moberly was asleep at the wheel. Last week, Moberly, clearly disconnected from reality, released a statement saying it “cannot use taxpayer dollars to bail out a private business to whom it has no responsibility.”

Stockman and other contractors who were stiffed in this fiasco bear far less blame than anyone else involved. Stockman did nothing wrong other than reasonably rely on Moberly and Gov. Nixon’s enthusiastic endorsements. If Moberly had merely checked Mamtek’s bank account before touting it as their economic savior, Stockman and the other contractors would not have been ripped off. If DED had just shared the information about the China plant, no one would have been harmed. If any of the financial professionals had done their job, no one would have been harmed.

Now, five years later, it’s the small business owners and taxpayers who are left holding the empty bag. The financial professionals settled a lawsuit against them for just over $8 million. Nothing happened to Standard & Poor’s. Gov. Nixon was re-elected. So was Moberly’s Mayor Bob Riley. Denice Burks, Darrell Kolb and dozens of other contractors — the innocents in this tragedy — are the ones paying for Moberly’s mistakes. 

Moberly could’ve pled poverty. Instead, they insulted Stockman and the intelligence of all those involved, including their citizens. Moberly’s leaders prefer the public to ignore what actually happened in 2010. To date, Moberly’s leaders have  proven proficient at deflecting blame, but otherwise incompetent. But now it’s obviously gone too far. Mayor Riley and Moberly’s City Council should be ashamed for attacking the very small business owners whose work they enjoy but refuse to pay. 

Welfare Reform Comes to Missouri – Two Decades Later

On Tuesday, the House overrode Governor Nixon’s veto of Senate Bill 24, which will bring Missouri in line with other states’ requirements that welfare recipients must work if they are able-bodied.  There’s been teeth-gnashing and caterwauling from opponents. But their rhetoric doesn’t match past experience.

The venue and the names behind the debate have changed, but the fundamental arguments on welfare reform remain the same.  The claims made by opponents to SB 24 are the same as those who opposed federal welfare reform in the 1990s. For example, Peter Edelman wrote in the Atlantic Monthly that welfare reform was “awful” policy and would result in “serious injury to American children” as well as increases in malnutrition, crime, infant mortality, and drug and alcohol abuse. The Children’s Defense Fund claimed it would increase child poverty by more than 12 percent. These are just two of many examples.

These claims turned out to be completely wrong. Before welfare reform, never married mothers rarely worked outside the home and suffered from poverty rates of over 60 percent. Nationally, they were more than five times more likely than married couples to be poor.

In 1993, earnings accounted for less than a third of income for single mothers nationally and welfare payments equaled more than half. By 2000, those numbers had flipped. Nearly two-thirds of income came from earnings and welfare income fell to just 23 percent. Measures like these led the liberal Brookings Institute to trumpet that welfare reform was “a triumph for the federal government and the states – and even more for single mothers.”

Unfortunately, Missouri never fully joined the welfare reform revolution. Like most federal programs, welfare programs allow each individual state some (but not enough) flexibility in how it is administered. According to a non-partisan study published last year, Missouri ranked dead last for implementing Clinton-era welfare reforms. Missourians should be embarrassed by the fact that we were worst in the country for workforce participation by welfare recipients. Under current law, less than one in six able-bodied welfare recipients in our state work, go to school, or even just look for a job.   

Senate Bill 24 will change this by requiring that before any able-bodied Missourian receives welfare benefits they must either work or participate in job-training, community service programs, vocational training, education, or provide child-care services for a person participating in a community service program. The bill specifically protects children by providing that child care services remain unaffected. It also shortens the total amount of time a Missourian may receive welfare from sixty to forty-five months.

This week opponents claimed reducing the length of time a person could stay on welfare would exacerbate generational poverty. The data from federal welfare reform states refute such claims. It also ignores the long-term impact on children who see their parents on welfare programs for longer periods of time. A child raised in a household with an able-bodied parent who will not work or even look for work is far more likely to grow up to be an adult who lives the same way.

In 1993, President Bill Clinton famously explained “the American dream that we were all raised on,” that “if you work hard and play by the rules, you should be given a chance to go as far as your God-given ability will take you.” The reciprocal is also true, if an able-bodied person refuses to work, they should not expect a long-term handout.

We value work because it’s about far more than a paycheck. Work, even boring work, provides the worker with a sense of purpose and dignity. Work, a job well-done, is often its own reward. It’s critical for our physical and mental health. Missourians on welfare owe it not just to society, but also to themselves, and to their children, to work or at least make an effort. Senate Bill 24 ensures that Missouri takes its place alongside other states in insisting able-bodied welfare recipients work hard and play by society’s rules in exchange for temporary help. 

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. 

Medicaid Modernization, Senior Savings, and Employment Discrimination

This was moving week in the Missouri House. With only five weeks left in session, bills are nearing the de facto deadline whereby they must pass the House to have a chance to clear the finish line. If a bill has not passed through the sponsor’s chamber by the end of next week, it’s nearly dead. Two bills I sponsored passed the House this week.

Medicaid Modernization Act

House Bill 319, the Medicaid Modernization Act, was sent to the Senate by a vote of 152 to 2. Private sector health care providers have long used tele-health and store-and-forward technology to improve access to care and save money. In the oldest example, the results of a diagnostic test like an MRI can be digitized then forwarded to a specialist for review.

Medicaid has been slow to adopt these practices. House Bill 319 specifically directs the Department of Social to Services to adopt tele-health and store-and-forward technology for appropriate medical practices in Medicaid. This will increase access to health care services in rural Missouri and in schools. After necessary upfront expenditures for technology, I anticipate it will save significant taxpayer money in the long run.

A similar bill passed the Senate this week, which I hope to handle in the House.

Senior Savings Protection Act

The House also perfected House Bill 606, the Senior Savings Protection Act. This bill would allow financial industry professional to place a temporary hold on transactions for which they have a good faith belief involve fraud or financial exploitation.

Employment Discrimination and Whistleblower

For the fifth consecutive year, I voted no on efforts to change Missouri’s law on employment discrimination and the protection of whistleblowers. Under current law, Missouri has a zero tolerance policy for employment discrimination on the basis of race, gender, age, disability, or religion. Indeed, we have the strongest anti-discrimination law in the entire country.

I don’t believe this was an accident. In researching this bill, I discovered that Missouri has had a mixed bag of fame and shame in the Civil Rights movement. From the 1820s until the 1850s, Missouri law essentially said that once a slave set foot on free soil, that he was free forever. Once free, always free. Unfortunately, due to political pressures on the Missouri Supreme Court, two activist judges in 1852 declared that Dred Scott was not free even though he had lived on free soil.

Missouri’s next big legal precedent on racial discrimination was Lloyd Gaines v. University of Missouri. Gaines was a high school valedictorian and an honors graduate from Lincoln University in 1936. With those credentials, he wanted to go to Mizzou law school but was denied because he was black. He took his case to the United States Supreme Court, and won. The university was told it either had to admit him or provide an equivalent education somewhere else in the state. Tragically, Gaines never got the chance. He was murdered before he set foot on the Mizzou campus.

Against this backdrop, the General Assembly first took up and passed the Missouri Human Rights Act in 1959 – several years before the federal government passed the Civil Rights Act of 1964.  The men and women in Missouri government in 1959 knew the history of our state’s legal system, and chose to adopt a zero tolerance policy for discrimination in our state.

House Bill 1019 would weaken this standard. Rather than attempting to change it, I believe we should hold it up as an example for other states. We should be proud of the fact that our state has the strongest anti-discrimination law in the country. 

The other major change in House Bill 1019 concerns whistleblowers. Under current law, whistleblowers receive protected status. The reason is simple: we do not want to discourage Missourians from reporting criminal activity, particularly fraud against taxpayers.

HB 1019 exempts middle and upper-management employees from whistleblower protections where the unlawful act reported “concerns matters upon which the person is employed to report or provide professional opinion.” In the real-world what this means is that a middle manager for a health care provider committing massive Medicaid fraud has no legal protection if they report the fraud to either a government agency, law enforcement officer, or just their own supervisor.  

I believe that’s the exact opposite of the approach we should take for those willing to report fraud against taxpayers. Instead of removing protections for them, to help protect taxpayers, we should pass state legislation similar to the False Claims Act signed by President Ronald Reagan in 1986, which provides financial compensation to whistleblowers who save taxpayers money.