3 Unrelated Illuminating Events and Ethics

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

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

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

The News-Tribune Jinx?

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

Senate Passes First Ethics Bill

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

More Reasons to Oppose PDMP

Dear Colleague:

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

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

I write today to add a few more points.

Privacy is a Fundamental Human Right, Not a Red Herring

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

There’s a Difference Between Welfare and Private Health Care

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

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

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

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

Your Constituents Oppose PDMP

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

PDMPs Do Not Work

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

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

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

Sincerely,

Rep. Jay Barnes 

Deja Vu: Rejecting Politician Pay Raises

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

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

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

Executive Agencies Don’t Get to Write Their Own Laws

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

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

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

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

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

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

Seeking Full Funding for Ag Research at Lincoln University

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

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

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

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

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

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

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

Why I Oppose PDMP and Hope You Will Too

Dear Colleague:

According to the Supreme Court, the “right to privacy” is a “fundamental human right” and “the right most valued by civilized men.” Far from being a mere “emanation” or “penumbra,” the right to privacy finds explicit support in the First, Second, Third, Fourth, and Fifth Amendments to the United States Constitution.

The idea that there are vast spaces in our lives upon which government should not, and, by constitutional and statutory limits, cannot intrude is a fundamental principle of liberty and a quintessentially American idea.

In 1928, Supreme Court Justice Louis Brandeis warned that telephone wiretapping was just the first of many new technologies capable of invading the privacy of Americans:

The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts, and emotions. “That places the liberty of every man in the hands of every petty officer” was said by James Otis of much lesser intrusions than these. To Lord Camden, a far slighter intrusion seemed “subversive of all the comforts of society.” Can it be that the Constitution affords no protection against such invasions of individual security?

      Olmstead v. United States, 277 U.S. 438 (1928), 474, J. Brandeis dissenting.

Justice Brandeis was ahead of his time. The Court held that the Fourth Amendment did not protect telephone conversations intercepted by government wiretap.

It should not be surprising that Justice Brandeis was on the losing side. It often takes government decades to catch up with new technologies and understand their broader implications. 

Nearly 40 years later, Brandeis was vindicated in Katz v. United States, 389 U.S. 347 (1967), a case where the Supreme Court held in a 7-1 decision that warrantless wiretapping is prohibited by the Fourth Amendment. Just a year later, Congress passed the Wiretap Act to require a super-warrant before government could intercept a person’s communications. Then, in 1986, in a minor miracle, Congress got ahead of the computer technology curve bypassing the Electronic Communications Privacy Act, which was designed to give the same protections to electronic communications that already existed in statute for wire and oral communications.

The Wiretap Act and ECPA are just two examples of dozens of how American legislatures have taken action to protect privacy. As Congress put it in the legislative history to the ECPA:

[T]he law must advance with the technology to ensure the continued vitality of the Fourth Amendment. Privacy cannot be left to depend solely on physical protection, or it will gradually erode as technology advances. Congress must act to protect the privacy of our citizens. If we do not, we will promote the gradual erosion of this precious right.

Rather than pass legislation that intrudes on privacy, Congress and state legislatures have consistently enacted statutes to enhance privacy. To my knowledge (with two significant exceptions), federal and state statutory enactments affecting privacy have been almost completely one-sided.

I give you this history as background to why I oppose a dragnet prescription drug monitoring program and strongly believe you should too.

Under PDMPs, all painkiller prescriptions are monitored by government. The tracking occurs whether the Missourian is an innocent 82 year old grandmother with a broken hip or a three-time convicted drug dealer. Because you receive the prescription, government tracks you.

The PDMP logic tree works like this: because some people abuse prescription painkillers, government should track all people who use them – regardless of whether a person has done anything wrong.

When you take a step back, it should not take long to see how absurd this logic is. If it’s acceptable logic for prescription painkillers, why should we stop there? There are a host of public health risks more serious than prescription drug abuse to which the same logic could be applied.

For example, according to the CDC, nearly 2,000 Missourians die annually from alcohol-related deaths, significantly more than drug overdoses. The data are clear: Alcohol is a worse problem for society. If government simply put a tracker in every grocery store in our state, problem drinkers could be identified and deaths avoided. By the logic of trackers of prescription drug monitoring programs, you’re a technophobe if you wouldn’t support such a database. After all, lives are at stake!

How about junk food? Obesity and its related illnesses cost American taxpayers billions of dollars a year in Medicaid and Medicare. Its associated illnesses also kill more Americans than alcohol and drug overdoses combined. Junk food purchases are far less private today than prescriptions. Every grocery store tracks what you buy, and many provide the data to third-parties for internal (or perhaps external) marketing purposes. Because the data are maintained by third-parties and there’s no statutory protection, Americans have no privacy right in their junk food purchases at all. So why not enact a law requiring grocery stores to pass along their data on massive junk food purchasers? The Department of Health and Senior Services could use the information to aggressively target those Missourians who buy too much junk food.

Tanning beds? It took three years to pass legislation in Missouri just to require tanning bed proprietors to get parental consent before allowing a minor to tan. Yet, we also know tanning is a leading cause of skin cancer. It will literally kill you. So why not require proprietors to report the name of every person to use a tanning bed every time they use one? DHSS could use the data to bombard the most frequent users with anti-tanning messages, and we’d likely save some lives.

Smoking? Similar story.

Next, move beyond behaviors that can only harm a single person. If you buy the logic that government should track a law-abiding person’s behavior to save them from themselves, then you must certainly also agree that government should be able to track someone to prevent them from harming someone else. Just put the product into the same logic structure as the PDMP argument: some people will misuse X, therefore government should track all people who use X.

In this second category, government would start with guns. How would you feel if, instead of replacing X with “prescription painkillers,” we used the word “guns?” There may be some Democrats in the House who would be yes votes, but I doubt there’d be a single Republican. And yet, it’s the same argument.

Back to alcohol, some people misuse X and drive cars, therefore government should track all people who use cars. The technology is available to put a breathalyzer in every car. We could eliminate drunk driving accidents by requiring every driver to blow into a breathalyzer every time they started their car. If you’re for a PDMP, you should consider this as well.

PDMP proponents are well-intentioned. We all would like to reduce drug abuse and deaths in Missouri. But we should not do so in a way that treads upon the privacy rights of hundreds of thousands of Missourians who have done nothing wrong.

Until this year, it was PDMP or nothing. This year, however, there’s a better option available. House Bill 1922 protects the innocent and limits a prescription drug abuse database to those Missourians who have actually done something to create the reasonable suspicion that they are a drug abuser. It would work like the problem gambler’s list, and would capture a significant majority of those Missourians whose prescription drug use eventually puts their life in jeopardy.

PDMP proponents have reacted to this non-dragnet approach by arguing it would not be capable of identifying a potential drug abuser before they become one. That is true. But think about the implication of that argument? Do you want to live in a society where government tracks your activities so that it can stop you from doing something you haven’t yet decided to do? I’m confident algorithm-makers think computers can categorize people better than humans. But we’re each more than a computer program, and the thought that government might create a program designed with a “pre-crime” component is scarier than the tracking itself.

There’s also a second key difference that I believe illustrates the absurdity of the dragnet approach. HB 1922 provides that a person whose name is submitted for inclusion on the prescription drug abuse registry has the right to a hearing before being placed on the list. This is not in the bill merely because I think it’s a good idea to give a person the right to prove their innocence. Instead, it is necessary under the Constitution. Putting someone on a list to which a stigma would attach is something for which we must also give them the right to contest. The dragnet approach, on the other hand, does not require any hearing. In this case, when government violates the rights of everyone, it need not make any provision for procedural due process for those who object.

If you have voted no on PDMP in the past, I request that you remain steadfast in your opposition. If you have voted yes, I respectfully ask that you reconsider. You wouldn’t vote to create a government database tracking every alcohol, cigarette, tanning bed, junk food, or gun purchase. And you shouldn’t vote to create a government database for tracking prescription drugs either. Instead of the dragnet approach, signal your support for a targeted list of known drug-abusers. This will allow doctors to cross-check patients they suspect of pill-shopping. It will give recovering drug addicts a tool in their recovery. And it will protect the innocent.

Sincerely,

Rep. Jay Barnes

Serving at the Public Trust Should Require Foregoing Private Profits

Legislators, judges, public employees with decision-making purchasing authority, and members of boards and commissions are all prohibited under current state law from taking actions which might benefit them personally. The reason for the ban on self-dealing is obvious: those who serve in the public trust should not use their positions to make private profits.

Unfortunately, Gov. Nixon’s actions concerning the stadium revealed a hole in Missouri’s ethics laws. Under federal law, members of executive branch task forces are prohibited from self-dealing. Under state law, they are also covered by the Sunshine Law. (See AG Jay Nixon opinions 129-2004 and 143-2003 which he has ignored in his role as governor.) But they are not explicitly covered by the self-dealing statute.

House Bill 2226 closes this large hole in Missouri’s ethics laws. It applies the self-dealing prohibition to gubernatorial task force members charged with rendering advice involving spending your tax dollars. It requires the same task force members to submit personal financial disclosures. On Thursday, it passed the House by a vote of 157 to four. 

Show Us the Letter

Last year at this time, the Nixon Administration claimed it had a letter from bond counsel on which it was relying to justify Gov. Nixon’s belief that he could unilaterally agree to an unlimited amount of debt to fund construction of a new stadium in St. Louis. The Nixon Administration cited attorney-client privilege and refused to release the letter. Last year, I could understand why. The stadium “plan” was ongoing.

On Tuesday, the House Appropriations Committee for General Administration heard testimony on the state’s continuing debt for the Edward Jones Dome – and one of the first questions I asked was about that letter. Specifically, because the stadium plan is dead, I asked whether they would now release the letter which they claimed last year justified their position.

I was met with the same response. Different scenario. Same response. The project is dead. Nixon’s refusal to release the letter supports one of two inferences: either the letter doesn’t say what they claimed; or it doesn’t it exist. In short, I believe the Nixon Administration has misled the General Assembly and the public about the contents or existence of this letter from bond counsel. And, this being the Show-Me State, there’s one simple way to prove me wrong: SHOW US THE LETTER. 

Ethics Bills Move to Senate

On Wednesday, the House passed legislation to ban lobbyist gifts by a vote of 147 to 12. If this bill makes it through the Senate, the days of $500 steak dinners are done.

The vast majority of elected officials begin (and continue) their public service for the right reasons. They serve because they want to improve our state and their respective communities.

Power is a great test of character. Men and women in public service have decision-making authority on issues that affect billion dollar industries – on salaries that are fair, but nowhere near the impact they can have on others.

I don’t believe anyone’s vote has ever been bought for an average priced meal. But I do know of elected officials who have abused the current laws to extract extravagant meals and gifts from lobbyists. And I believe there are some elected officials for whom gifts helped cause them to lose sight of why they were in Jefferson City to begin with.

Elected officials serve at the public trust. We represent you – not ourselves. That’s why in the General Assembly we don’t even refer to members by their name, but instead only by their district or their county.

The same should be true of local elected officials. So this week we added an amendment imposing the same gift ban on every elected official in the state.

Combined, the seven ethics bills passed by the House and the rules changes on sexual harassment, which have already taken affect, will make our Capitol a better place.

Unlike past years, we kept ethics bills narrow this year. In the past, for efficiency, we likely would have rolled all seven of these bills together into an omnibus package. But that path led to failure every time it was tried in the past. This year we resisted the temptation to broaden the scope of each bill. A serious effort at ethics reform requires focused attention. I remain hopeful that the Senate will pass each of these seven bills quickly. 

Nixon’s Speech – The Good, the Bad, the Strange

Some days in the legislature feel like Groundhog Day – in the Bill Murray sense. For me, that’s the case with most Opening Day speeches and the State of the State address. This week, on Wednesday night, Gov. Nixon took the dais for his eighth and final address. I felt waves of deja vu. Gov. Nixon apparently felt this way too – as he recalled his very first SOTS address. , No surprise, he said a few things with which I agree, more with which I don’t, and a few that seemed misplaced.

The Good

Gov. Nixon’s proposed budget includes a two percent pay increase for state employees. And, unlike one previous example, it’s an increase for the entire year. Though I sound like a broken record – I’ll repeat – the key to getting out of the basement of national rankings is to have modest but steady raises.

Nixon also proposed to “expand family-friendly policies like parental leave for state employees.” In the words of Kris Kristofferson, the governor must be reading my mail. Just last week I filed House Bill 2228, which would allow state employees ten days of paid maternity or paternity leave. The House Committee on Government Oversight will hear the bill Monday afternoon.

The Bad

Nixon’s budget is built on a bed of straw. It includes hundreds of millions of dollars from proposed Medicaid expansion that is dead on arrival. He has also asked for $388 million in supplemental funding for Medicaid, which means we were nearly half a billion dollars short in last year’s budget estimates for Medicaid spending and Gov. Nixon is asking the legislature to make up the difference from last year before we even consider next year’s bill.

Nixon claimed that, when he took office, “a lot of talented entrepreneurs couldn’t get access to the capital they needed.” As governor, Nixon takes credit for changing all that. And this year, he’s proposed $10 million for the Missouri Technology Corporation to “help more entrepreneurs innovate and grow right here in the Show Me State.”

State government is not an investment bank – and shouldn’t operate like one either. Deciding which companies and entrepreneurs to favor with capital is something that private investors should do with their own money – or with money that people have entrusted to them. It’s not something that should be done with taxpayer dollars.

MTC has great intentions. It’s just not the proper role of government in a free society. We don’t and shouldn’t ever have Chinese-style “capitalism – with state-sponsored and favored enterprises. Even where there are the best intentions, the fact is that you’re taking taxpayer money, giving it to a group of unelected people, and requiring them literally to pick winners-and-losers. The right place to secure capital for a new business is a bank – not government.

The Strange

Gov. Nixon surprised everyone when he encouraged everyone to “work together to protect kids and consumers by reining in the billion-dollar daily fantasy sports industry.” Nixon says daily fantasy sports are unregulated gambling. If Missouri’s going to legalize it, Nixon says we need to regulate it.

I happen to agree with his legal analysis. Daily fantasy sports are far more a game of chance than poker – and poker is considered gambling. The strange thing is – if Nixon’s legal conclusion is right, then the General Assembly doesn’t have the authority to legalize it because our state’s prohibition on gambling is in our state Constitution, not our state statutes. If fantasy sports websites want certainty in Missouri, a question for the ballot is the only way they’re going to get it.

The Week Ahead

 

On Monday, the House Committee on Government Oversight and Accountability will hear my bill on parental leave for state employees. The Committee on Conservation and Natural Resources will hear  House Bill 1782, a bill that would require the Department of Natural Resources to sell land in Oregon County that it illegally diverted from counties in the lead belt that suffered environmental harm from the now bankrupt ASARCO. On Wednesday, the Committee on Health and Mental Health Policy will hear House Bill 1923, a bill nearly identical to one I sponsored last year but came up just short of passing as a result of the end-of-the-year filibuster.

In floor action, I anticipate the House will take up and pass three more ethics bills – a ban on lobbyist gifts, a prohibition against candidates using their campaign funds for exotic investments, and a bill to ensure that state laws against self-dealing also apply to members of executive task forces charged with recommending policies that involve spending your money.