Income Tax Cuts for All Over Sales Tax Exemptions for Some

Admitting you were wrong isn’t easy – whether at home, work or, especially, in public service. This week’s about owning a mistake I made as your state representative – eight mistakes, to be exact.

Next week, when the legislature re-convenes for veto session, it may consider nine sales or other tax-related bills vetoed by Gov. Nixon. On the last day of regular session, I voted for all nine bills. During veto session, I will only vote to override one.

What changed? Well, it wasn’t Gov. Nixon’s bully-bludgeon tactics, or his sky-is-falling budget projections. Instead, the change can be attributed to two factors: (1) a bigger picture view of taxes and the budget, and (2) difficult to detect but devastating drafting errors in a few bills.

First, the big picture. There is justification for each of the vetoed sales tax bills. Many are attempts to re-set the law after changing interpretations by the Department of Revenue. When I voted for these bills in regular session, I considered the legislation narrowly – asking whether each made sense as isolated policies.

But I was wrong to view these bills in isolation. Each of these will reduce general revenues to the state without stimulating any meaningful economic growth. Worse, each of these bills is competing with the income tax cut we passed this year.

Under Senate Bill 509, your income tax rate will be gradually reduced from 6 to 5.5 percent. The reduction will occur over a series of years with the rate going down 0.1 percent annually – but only if General Revenue increases for the state by at least $150 million in the preceding year. As a result, for every dollar we reduce GR to “fix” a sales tax issue, exempt some new product from sales tax (graphic calculators as one obscure example in these bills), or create a new tax credit, we delay income tax cuts for everyone. Though some of these provisions make sense individually, I’m not going to choose tax cuts for donut shops, graphing calculators, data storage facilities, or any other particular narrow group over an income tax cut for everyone.

In addition to the “bigger picture,” several of the bills contain seemingly small but serious drafting oversights. Here are two for which there is conceptual consensus, but, alas, the devil lurks in the details.

Notice of Tax Change Fails to Define Notice

Senate Bill 662 and a few other bills contain a provision requiring the Department of Revenue to notify “all affected sellers” of goods that are determined taxable through a changed decision of DOR, the Administrative Hearing Commission, or a court. Unfortunately, this new section of law does not define “notify.” Because Missouri law requires tax provisions to be interpreted against the tax collector, a court would likely interpret this provision to require DoR to send notice via certified mail to an indeterminate group of taxpayers.

For example, the Supreme Court recently ruled that DOR had to enforce a sales tax on mobile home sales because they were not specifically exempted from the tax by statute. For this provision, proponents have argued that it defies logic for a Court to insist that DOR enforce the statute as written going forward because it hasn’t previously enforced the statute as it’s actually written. This is dangerous logic – and is the intellectual twin of President Obama’s arguments to re-write federal immigration law via executive action.

Under the new “notice” provision, DOR would be prohibited from enforcing the Supreme Court’s ruling that it must administer tax statutes as they are actually written unless and until it provided the undefined “notice.” While I agree that notice is warranted, ignorance of the law is not bliss. The legislature should re-visit this issue in January and pass a bill that defines “notice” in a way that does not require prohibitively expensive registered mail.

Burden of Proof Provision Goes Beyond Case-in-Chief

Under current law, for taxpayers with a net worth of less than $7 million or fewer than 500 employees, the Department of Revenue has the burden of proof in tax liability disputes to show that the taxpayer owes more money to the state treasury than they paid. Consistent with federal law, House Bill 1455 applies the same rule to all taxpayers. This is a concept with which I believe everyone should agree. In fact, in his veto letter, even Gov. Nixon noted that he agreed with “eliminating” this “arbitrary limitation” in current law.

But HB 1455 also shifts the burden of proof concerning claimed tax exemptions. In other words, it requires the claimant in a tax case (DoR) to prove a negative. This stands traditional legal process on its head. The existence of an “exemption” to a tax statute is an affirmative defense. The essence of an affirmative defense is the burden is on the party claiming the defense – to do otherwise requires a party to prove a negative.  I am not aware of any other substantive area of the law in which the burden is placed on a claimant to prove the non-existence of an affirmative defense. Therefore, though this provision is well-intentioned and the rest of the bill would be good law, I believe the legislature should revisit this issue in January and pass a slimmed-down version of the same bill.

Actions for Next Week

The sales tax bill for which I will vote to override Gov. Nixon’s veto is Senate Bill 727, which exempts purchases from farmer’s market vendors with annual sales of less than $25,000 from sales tax. For the other eight bills, if they come up for a vote, I will vote no. Looking to next session, I believe the legislature should take a serious look at replacing many tax credits and sales tax exemptions for narrow groups with income tax cuts for all.

Burger King Deal Shows Need for Corporate Tax Reform

 

Burger King announced this week that it will merge with the Canadian-based Tim Horton breakfast chain in an $11 billion deal to create the world’s third-largest fast food company. Even though Burger King was the bigger company going into the deal, the new company will be based in Canada. This is called a “corporate inversion” – for tax purposes, the U.S. company becomes foreign-owned and benefits from lower taxes in the foreign country.

Not surprisingly, the Burger King deal has caused an uproar – but its focus is misplaced. Democrats in Washington are blasting Burger King. Sen. Bernie Sanders (Socialist-Vermont) said the move shows “contempt” for average Americans and the United States. Sen. Sherrod Brown (D-Ohio) called for a boycott and for consumers to eat at Wendy’s and White Castle, both restaurants located in his state.

There’s cause for outrage. You and I can’t reduce our own tax rate by merging with someone from a foreign country while continuing to live and work here. So, why should corporations be allowed to do it?

But blaming Burger King (which, incidentally, is majority-owned by a Brazilian, not American, private equity firm) for maximizing shareholder value is kind of like blaming a squirrel for gathering nuts: it’s what they do. And if you’re going to follow Sen. Brown’s advice and start boycotting companies involved in controversial tax practices, prepare to abandon Google, delete your Facebook account, pitch your iPhone, stop sipping Starbucks, avoid flying on Southwest, return your GE appliance, and quit taking your prescription medication.

The bigger question is why companies are working so hard to avoid corporate taxes in the United States.

The real outrage here should be directed to Washington’s inability to reform an uncompetitive corporate tax code. “Corporate inversions” are sometimes more than just paper shuffles. They can also involve the shifting of real jobs and real responsibilities away from the United States and toward foreign countries.

The reason American companies are seeking to invest abroad rather than here is simple. At 35 percent, we have the highest corporate tax rate in the developed world. That’s nearly double the rate paid in the United Kingdom and triple the rate paid in Ireland. It’s even higher than the rate paid in quasi-Communist China. 

The Democrat solution to corporate inversions is sticks and chains. If we just change the law to enact strict punishments for sending profits or jobs overseas, the thinking goes, we can stop this practice. But capital is like water – it finds the path of least resistance. As long as our corporate tax rate is multiples higher than competing countries’ rates, corporations will find accountants and lawyers smart enough to find and exploit new loopholes. Or, in some cases, they may do even worse. Instead of doing a questionable paper shuffle, they may outright pick-up operations and move someplace else.

Setting aside the fact that corporate taxes are double-taxation[1] anyway, the sticks-and-chains approach won’t work. To stop deals like this from happening, we must reduce the corporate income tax rate so that corporate inversions are no longer wildly profitable. Along with reducing the rate, Congress should  work to eliminate special exemptions (a task far easier said than done). And yes, there is certainly a place in corporate tax reform for strict enforcement of new laws designed to prevent companies from shirking on tax responsibilities through mere paper shuffling and creative accounting.

The problem is that this kind of deal seems impossible in today’s Washington, where both parties are entrenched on seemingly every issue and any move toward agreement that involves compromise is rejected. On some issues, Republicans should take the majority of the blame. On this issue, however, it’s Democrats who refuse to budge.


[1] The corporation is taxed on the profit. Then, when the profit is distributed to shareholders through dividends or indirectly realized by shareholders through capital gains, it’s taxed again. 

Legislature Must Stay In Its Own Lane on Potential Ferguson Committee

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

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

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

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

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

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

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

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

Who Will Watch the Watchers?

“Who will watch the watchers?” is a question political philosophers have asked since Plato. How can society assure that those who hold the power of the state will not be able to abuse it?

From the top down, we have the best government structure in history to “watch the watchers.” Our Founders designed a structure of government with vertical and horizontal checks and balances to maximize liberty through diffusion of power. The vertical checks and balances are through federalism – 50 individual state governments checking the power of the federal government. The horizontal checks and balances are those taught in grade school – i.e. vetoes, overrides, appointments and confirmations, the power of the purse, the judicial power to interpret the law free from legislative or executive influence.

Our criminal justice system has rules that protect the accused from biased judges and juries. The most important rules are found in the Sixth Amendment – the right to a speedy, public trial by an impartial jury, to confront witnesses, and to legal counsel.

In Missouri, we have additional protections. For example, criminal defendants have an automatic right to at least one change of judge – for any reason. They also have an automatic right to change of venue in 100 of our 114 counties. In the 14 counties (including St. Louis City) with populations above 75,000, criminal defendants have the right to request a change of venue if they can show that the inhabitants of the county are prejudiced against the defendant or that the state has an undue influence.

In his confirmation hearings, Chief Justice John Roberts famously described the role of a judge. It is worth repeating here – and applying it to juries as well:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges are umpires of the law. Jurors are umpires of the facts. Prosecutors are different.

Prosecutors have a higher duty to American courts than ordinary lawyers. A typical lawyer’s client is a person or organization. A prosecutor’s client is justice itself.  That’s why they’re required to advise criminal defendants of their rights, including the opportunity to obtain legal counsel. Prosecutors must timely disclose to defense counsel all evidence – including exculpatory evidence. And they have a duty to refrain from public comment which may increase public condemnation of the accused.

But prosecutors are not umpires. Nor should they be. They are active players in the criminal justice system, and they play on the same team as law enforcement. The cop on the street does the initial investigation and makes the arrest. The prosecutor finishes the job in the courtroom.

For most cases, this does not present a problem. But what happens when circumstances put a prosecutor and a cop on different teams? That’s the scenario in Ferguson concerning the investigation of the Michael Brown shooting.

There’s an inevitable appearance of bias in cases where a prosecutor must decide whether to prosecute a law enforcement officer in their own jurisdiction. Last week, I wrote about how our own life experiences color our perception of events like the Michael Brown shooting. These perceptions are even greater when you actually know or regularly work alongside one of the people or organizations involved in the event. There’s a tendency to believe those you know over those you don’t.

For prosecutors, there’s the additional consideration of future working relationships with law enforcement. Knowing they will have to work with the same or similar law enforcement personnel in the future, a prosecutor may be less inclined to charge appropriately. The same holds true for law enforcement personnel investigating officers within their own police department. Prosecutors and cops are humans just like us. Try as they might, investigating their own generates intractable problems of bias.

Justice requires not just the right results, but also taking the right process to reach those results. Accordingly, next session, I will introduce legislation that requires investigations and prosecutions of deadly police shootings to be immediately referred to a separate law enforcement agency and the Attorney General. Presently, such investigations are already frequently transferred to other agencies. But, responsibility for potential prosecution is not routinely transferred to the Attorney General.

African-American leaders in the St. Louis region have asked St. Louis County Prosecutor Bob McCullough to appoint a special prosecutor or send the case to the Attorney General’s office. In doing so, they’ve specifically alleged bias. I have no information or position on whether he’s shown bias in the past; it’s beside the point.

What’s important now are two facts. The first is that McCullough not super-human. He’s subject to the same inherent biases as everyone else. The second is that, justified or not, there’s a perception of bias in the community most affected. I believe McCullough should refer this case to the Attorney General or the St. Louis City Prosecutor, but will pursue this legislation regardless of his decision.

I have spoken with Sen. Jamilah Nasheed (D-St. Louis) about this legislation, and expect that she will file a similar bill in the Senate. Together, we can bridge the divides of party, race, ideology, and geography to pass this bill to improve our criminal justice system. 

Tragedy in St. Louis

Most weeks, I sit down to write this Capitol Report the words flow easily. This week is different. For the past six days, the St. Louis region – and our state – has been living a nightmare. As I’ve consumed the news about last Saturday’s tragedy, and its aftermath, I’ve had a difficult time collecting my thoughts. If my five year old heard about this and asked me about it, what would I say?

Like most people, I have mixed feelings of bewilderment, sorrow, disbelief, and anger. Presently, there are more questions than answers:

  • How many witnesses were there?
  • How many shots were fired? From where were they fired? How many times was the victim shot? And in what sequence?
  • Were there any videos of the scene – either from surveillance cameras or cell phones?
  • What has the officer said about the event?
  • Does the officer have any history of violence or racial animus?
  • Witnesses say that the victim, Michael Brown, was shot in the back after running away from the officer.  Are there any witnesses who dispute this version of events?
  • How long did it take for the local police department to report the shooting to another law enforcement entity for investigation?

Unfortunately, too often, the version one believes turns on your prior life experience. If you’ve suffered or witnessed law enforcement abuse or discrimination, you’re more likely to back the victim. If you haven’t, you’re more inclined to believe the officer.

If it’s a civilian case, your race and personal history color your perspective as well. I cringed last year at the polarizing reaction to the George Zimmerman – Trayvon Martin tragedy. While partisans shouted at each other on cable news, the truth was that there are only two people who knew the whole truth about what happened that night – and one of them was dead. Zimmerman, time has revealed, was not quite the upstanding citizen that some presumed him to be.

In this case, Michael Brown’s friend, Dorian Johnson, says that Michael and he were unarmed walking across the street when officers cursed at them to get the [expletive] on the sidewalk. He claims that they were polite and told the officers they were almost to their destination and the officers pulled away, only to slam the car in reverse and nearly hit them. Then the officer attempted to open the door, but couldn’t because he was so close to them. Next, Johnson says the officer attacked Michael from inside the vehicle and, during the struggle, fired a shot. Michael turned to run and the officer pursued. While Michael was some distance away from the car – and with his hands raised, the officer then shot him several times.

St. Louis County Police Chief Jon Belmar gave a different account, stating that Michael had “physically assaulted the police officer” and struggled for the officer’s weapon in the police car. Belmar further said that at least one shot was fired inside the police car and that Michael was eventually shot about 35 feet away from the vehicle.

I have a difficult time believing that the physical altercation between the officer and Michael was completely unprovoked. My life experience isn’t such that I believe a police officer would randomly decide to pick fight on a Saturday afternoon in broad daylight in front of several witnesses. Maybe the officer’s story about a physical confrontation is true. Or maybe Michael and his friend merely returned the officer’s curse words with a few choice words of their own. This inquiry, however, doesn’t end with the question of whether there was provocation. As Kentucky Senator Rand Paul explained Thursday, “If I had been told to get out of the street as a teenager, there would have been a distinct possibility that I might have smarted off. But, I wouldn’t have expected to be shot.”

There are a few undisputed facts in this case. All agree that Michael was unarmed, a good distance away from the officer’s vehicle when he was shot, and that he was shot multiple times. While I doubt the confrontation was completely unprovoked, even if it was, there’s no circumstance in which deadly force is justified against an unarmed man who is running away or has withdrawn and isn’t an immediate threat to grab a weapon.

As this tragedy unfolds, I have the following thoughts:

First, I pray for Michael’s family as they mourn. All reports indicate that Michael was a “gentle giant” who had worked hard to graduate from high school after falling behind, and was set to attend community college. That all ended in less than two minutes Saturday afternoon.

Second, I’m disappointed with media coverage of protests and public gatherings that focus almost exclusively on violence and looting. There are equally important stories about African-American community leaders in St. Louis urging non-violent protests and, as apparent from pictures I’ve seen, ordinary residents of the area volunteering to help clean up. 

Third, it’s vital to review the actions of the Ferguson Police Department and St. Louis County Police Department in the immediate aftermath of the shooting. To avoid even the appearance of bias, I believe any incident of the use of police force, resulting in death or serious injury to a civilian, should be immediately referred to the Highway Patrol or the FBI. By immediately, I mean within minutes of when the officer reports the incident to his own department for internal investigation.

Fourth, justice requires a blind eye to both the status of the accused and the social consequences of finding a lack of fault. A badge is not an unmitigated license for violence, and officers who abuse their powers must be subject to the same laws as everyone else. If the evidence shows there was indeed no justification for the use of deadly force, prosecutors should file the most appropriate and serious charge merited by the facts. But, social unrest is no excuse to “up-charge” a crime. The criminal justice system must focus on individual, fact-specific inquiries without regard to politics or protests. If the evidence shows some currently unknown fact that suggests justification, lesser or no charges should be brought. Ultimately, justice requires a thorough inquiry and trial in a court of law, not public opinion.

On Thursday, President Obama announced that the local United States Attorney was working to move the investigation forward. That means former Cole County Prosecutor and Judge Richard Callahan is involved. Callahan is famous for being fair, independent, hard-nosed, and unafraid. Hopefully local prosecutors will take his counsel when considering the appropriate charge. I can’t think of anyone better suited for the job. 

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 www.commoncore.org/read-the-standards. Also, the suggested readings and problems for English language arts can be found atwww.corestandards.org/assets/Appendix_B.pdf.

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.