Carl Vogel and Bob Jones – Winners All the Way

Carl Vogel touched many lives in his role as a public official, business owner, community servant, and family man. His loss is a loss to our entire community. On Wednesday, I attended his funeral and the words of his son Jake struck me as important: the headlines reporting his death said he had “lost” a battle with cancer.  I know it’s just a cliché, but it’s a terrible one. 

Newsflash: we are all terminal. Eventually, something will lead to our passing from this earth. Those who live life with joy, dignity, and faith do not lose when they pass away. Carl Vogel was one of those people. When faced with a terrible diagnosis, he lived his last year without losing his sense of humor or his dignity. Carl Vogel was a winner his whole life – all the way to the end.                             

Many of the same things can be said of the late Cole County Commissioner Bob Jones, who passed away unexpectedly Tuesday morning. Like Carl, Bob could always be found with a smile on his face. He will be missed.

God-willing, they are both smiling down on our community from heaven. May their souls rest in peace.


Ethics Bills Headed to Gov. Nixon’s Desk

Our strategy of confining ethics reforms to single-subject bills is working. Gov. Nixon has already signed one bill into law. And this week, the legislature sent two more bills to his desk.

House Bill 1979, sponsored by Rep. Caleb Rowden, imposes a six month waiting period after a member’s term of service is complete before they can become a paid lobbyist – and applies to current members of the legislature. I would have preferred a one-year waiting period, but with a five month legislative session that starts immediately upon the completion of current members’ terms, this effectively accomplishes the same thing. Elected officials will have to sit out a session before returning to the Capitol as paid lobbyists.

I sponsored House Bill 2203, which prohibits candidates from using their campaign funds like they’re a hedge fund manager. Campaign contributions are designed to be used in political campaigns – not to become a mechanism for investments that perpetuate the account. The Senate improved the bill with amendments that prohibit anyone from working as a lobbyist until they have disbursed the moneys in their campaign account by refunding it to donors, contributing it to a political party, or donating it to charity.

Credit must also go to Senator Kehoe, who helped shepherd these bills through the Senate in his role as floor leader.

Two other ethics bills still await Senate action. House Bill 2166, sponsored by Rep. Justin Alferman, bans gifts for state legislators. I believe this is the most important of the five ethics bills and remain hopeful that it will find a way to Gov. Nixon’s desk. The other bill awaiting Senate action is House Bill 2226, which I sponsored to close a loophole in state law by prohibiting special gubernatorial appointees from using their public positions to privately profit.

All of these bills share two things in common. First, public officials should not use their positions for private profit. These bills remove financial incentives for elected officials to do the wrong thing. Second, they help move the Capitol culture further away from entitlement and closer to service.

The vast majority of Representatives and Senators begin – and continue – to serve for the right reasons. But power is intoxicating. It changes people, slowly and sometimes imperceptibly to the person being changed. Humility can be hard when people Monday through Thursday laugh at your bad jokes and act like your every word has great meaning. No one is immune to this.

Our Founders understood this. Madison expressed it best, “If men were angels, no government would be necessary.” These ethics bills won’t fix every ill with government. No bill ever could. They will, however, improve your state government. 

Why We Defend Life

On Thursday, the House passed legislation to prohibit the use of fetal body tissue obtained from an abortion in medical experiments. Every time an abortion bill comes up, the opposition attacks the motives of pro-life representatives. On Thursday, I spoke in favor of House Bill 2069. Though most weeks I spend a few hours writing and editing, this week the text of my extemporaneous floor speech on HB 2069 is better without edits:

Beginning at approximately the 1:55 mark: Mr. Speaker, I rise to make three points. The first is that I believe this body and normal people reject the utilitarian logic that some must, or should die, so that others can live better, particularly when those who die have no choice in the matter. The Lady from St. Louis County uses that word a lot – choice, choice, choice. Where is the choice for the child, Mr. Speaker? Where is the choice for the child in the womb to say, “I want to live, I want to breathe.”?

The second point Mr. Speaker: we heard an earlier person from the other side of the aisle talk about fetal abnormalities, and those are tragic situations for everyone. But a child born with disability is no less a human being worthy of life than anyone else, Mr. Speaker. They are a creation of God. They have dignity. They deserve our legal protection.

And third and finally, Mr. Speaker, the lady from St. Louis County spent a Senate amount of time talking about facts and saying that this body is paying no attention to facts. We also heard people talk about abortion like its’ any old medical procedure – like it’s a knee replacement or a shoulder manipulation.

But Mr. Speaker, here is the ultimate fact: Every single abortion ends with the premature termination of a human life, and a being with a soul. And a life of someone who did not have the opportunity to say, “I want to live.” When we bring these bills to the floor, it is about children. It is giving voice to the voiceless. It is defending the defenseless. Children should not be science experiments, Mr. Speaker. Thank you.

Ethics Bills Moving Towards Gov. Nixon’s Desk

It’s no secret that Missouri has the most lax ethics laws for legislators in the country. Ours is the only state without limits on gifts, campaign contributions, or a reasonable waiting period before a legislator can become a paid lobbyist. For the past four months, we have worked to change that for the better.

In January, Speaker Todd Richardson made ethics a top priority and assigned all ethics bill to the House Committee on Government Oversight and Accountability, of which I am the chairman. In past years, we combined all of the ethics proposals into a single bill – and then watched it languish in the last month of session. A big, bulky target, it became easy prey for ethics reform opponents to quietly kill.  

We took a different path this year. Instead of an omnibus bill, the House sent narrow single-subject ethics bills to the Senate. One of these bills has already passed. House Bill 1983, which prohibits legislators from cashing in on their service by being paid as campaign consultants for fellow members or candidates for statewide office, was signed by Gov. Nixon this Thursday.

Now, with four weeks left in session, there are four ethics bills are teed up for debate to be sent to the governor’s desk .

House Bill 2203, which I have sponsored, prohibits candidates (including incumbents) from using their campaign funds to purchase businesses or make other exotic investments. It also requires that, after an elected official has finished their service, they must dispose of their campaign funds before becoming a paid lobbyist. When emptying their former campaign account, a former member is limited to (1) giving refunds to donors, (2) donating the money to charity, or (3) transferring it to a political party committee. This part of the bill was added by the Senate and prevents former members from cashing in on their campaign funds in a later career as a lobbyist.

Finally, the bill prohibits candidates from converting campaign funds into personal use by transferring it to another committee and then receiving compensation from that committee. A conference committee agreed to the final language of the bill this week. And now it simply waits for action by both bodies.

House Bill 2226, which I have sponsored, closes a loophole in our state’s current self-dealing law. Self-dealing laws prevent those who serve in the public trust from profiting directly from their decisions in public service. Under federal law, persons appointed by executive agencies to provide advice and expertise are prohibited from self-dealing. Under current Missouri law, they are not. HB 2226 is awaiting Senate action, and I am confident that it will pass.

As agreed to by a conference committee, House Bill 1979 imposes a six month waiting period before former members of the General Assembly are permitted to become paid lobbyists. On Thursday, it passed the House 131 to 19. It now awaits Senate action.

Finally, House Bill 2166, as passed by the House, enacts a ban on lobbyist expenditures. The Senate debated it previously this session, but still awaits action. I am hopeful that the Senate, too, will pass it and send it to Gov. Nixon.

With just one month left, we have put them in the position to reach Gov. Nixon’s desk. And together, if all of these bills are passed, they will make a significant positive difference in the way your General Assembly operates.  

Protecting Your Health Insurance Benefits from Those Who Would Give Them Away

If you become paralyzed by a drunk driver, who should get the benefit of your responsible decision to pay health insurance premiums every month? You or the drunk driver?

Under current state law, whether you or the drunk driver gets the benefit of your health insurance is decided by a jury. But if a bill working its way through the General Assembly becomes law, the drunk driver will get it automatically.

In particular, I’m writing about Senate Bill 847, which would abrogate the collateral source rule. In short, the collateral source rule prevents defendants from introducing evidence at a trial that a third-party has paid part of the damages suffered by the person who was injured. In most cases, that third-party is an insurance company that only pays part of the damages because the person injured paid premiums.

It’s a legal doctrine nearly as old as our state. In 1854, in a case called The Proper Monticello v. Mollison, the United States Supreme Court explained that this rule prohibiting wrong-doers from benefiting from their victims foresight was already “well-established” in American law.

Courts have described the collateral source rule to have three purposes. First, it ensures that a wrongdoer does not benefit from their victim’s foresight to purchase insurance. Second, it supports the deterrent purposes of tort law by requiring the wrongdoer to pay the full extent of the damages he caused. And third, if there’s threat of a “windfall” between a wrongdoer and his victim, the wrongdoer should never be the beneficiary.

These purposes relate directly to personal responsibility. We are each responsible for our own lives. We are responsible for the good decisions that we make – and should be able to benefit from them. And we are responsible for the harm that we cause – and should be required to make good for it.

If you work and are responsible, you pay health insurance premiums every month. In 2010, the last year for which I could find data, the average annual health insurance costs for Missouri families with private health insurance was $13,903 per year. With Obamacare, that price is only going up.

What do you get for those monthly payments? First, your money purchases the certainty that a medical calamity will not bankrupt you. Rather than being forced to pay for your medical care out-of-pocket, you pay an insurance company to reduce your out-of-pocket costs. If you use less than your premium payments, you don’t get your premiums back but at least you’ve had the certainty all year that an illness will not bankrupt you. If you use more, you get the certainty, and actually spend less through premiums than you would have if you did not have insurance.

I believe you should be able to keep the benefits you’ve paid for and that government should not take any action to give those benefits to someone else. And under current law, our civil justice system ensures that people who harm others intentionally or through reckless behavior are held personally accountable for their behavior through monetary damages.

Do not be mistaken, defendants found liable in civil lawsuits have done something wrong. Every successful lawsuit involving physical injuries to the victim involves a conscious and deliberate choice by the defendant to violate a community safety rule. There are no exceptions. Though most defendants do not directly intend the result of their actions, i.e. injury to the plaintiffs, to be liable, each and every civil defendant must have, at some point, made a conscious and deliberate choice to engage in an action that violates safety rule designed to protect you and I and everyone else in our state.

For example, we have traffic rules designed to protect the safety of everyone traveling on our roads and highways. We have laws against following too closely, running red lights, speeding, and drunk driving. When someone violates these community safety rules and injures someone else, the wrongdoer is responsible for the harm they cause.

For over 160 years in this state, the collateral source rule has ensured that juries of ordinary Missourians can hold wrongdoers fully responsible for the harm they cause. Unlike “pure” collateral source states, defendants in Missouri can present evidence of the amount of medical bills paid. The jury also sees the original bills. Then it’s up to you – the jury – to decide the true measure of damages.

Unfortunately, personal responsibility is a value that politicians often preach, but don’t always vote that way. The most prominent recent example involving health insurance is Obamacare, which involved an overt transfer of benefits from those responsible enough to purchase health insurance and gave it to the uninsured. If you have a “Cadillac” health care plan, Obamacare taxes it and uses the proceeds to benefit the uninsured. Obamacare also creates an incentive for people not to buy health insurance when they’re healthy. With its rules on guaranteed issue, a person can choose to forego health insurance until they know they’re going to have high health costs. These free-riders take advantage of those of us responsible enough to pay our premiums every month.

Senate Bill 847 shares features of Obamacare, except, instead of giving the benefits of your health insurance policy to the uninsured, it gives them to drunk-drivers, red-light runners, and other people whose negligent acts have harmed someone else.

Neither the plaintiffs’ health insurance nor the defendants’ liability insurance are relevant to the measure of damages caused by the defendants’ wrong-doing. The abrogation of the collateral source rule operates as little more than a perverse reverse socialism. One leading advocate of pro-insurance company tort reform measures has even admitted that proposals like SB 847 “operate as wealth-transfers to tortfeasors.” That’s because this so-called “reform” takes money and resources away from responsible middle-class Missourians who pay their health insurance premiums every month and gives the benefit of those premiums to wrong-doers and their insurers.

Those wrong-doers range from those who have done the mundane – following too closely – to drunk drivers and far worse.  Others may side with drunk drivers and their insurance companies. But if this bill comes up for a vote, I’ll stand with those Missourians who were responsible enough to buy health insurance.

Back to Work in the Missouri House

The House resumed work this week. With only six weeks remaining, the time for bills to pass out of their original chamber is fading. This week, I was pleased that one of my sponsored bills passed through the chamber.

House Bill 1923 passed on Thursday with only a single no vote. It is this year’s version of what I called the “Medicaid Modernization Act” last year. It updates state law to bring our Medicaid program into the 21st century by providing reimbursement for health care services that are delivered through modern technologies like video-conferencing or high-definition “store-and-forward” medical diagnosis.

The goal is to ensure that state taxpayers and Medicaid recipients benefit from the reduced costs and improved quality of care of modern technology. For example, one section of the bill creates a “home tele-monitoring” service within Medicaid that would give recipients at risk of hospitalization the option of receiving care and monitoring at home so we can prevent expensive hospitalizations.

Last year, the House passed the bill by an overwhelming margin, but it was one of dozens of bills that languished on the Senate calendar late in session due to a Democrat filibuster the last week of session. This year, passing the bill is critical. After last session, some major health care providers in the state noticed that, even though many doctors were using telehealth, there’s nothing in state law that explicitly authorizes use of modern technologies to deliver health care. While 41 other states have statutes or rules that define the terms under which a physician can provide their services via video-conference or store-and-forward technology, Missouri has no such law or administrative rule.

In debate this week, one representative said he believed HB 1923 was the most important bill we’ve taken up this year. I appreciate the superlative, and, as far as positive impact on the most people, he may be right. By making telehealth services available in Medicaid and ensuring its continued use in private health care, we are increasing access to care for all Missourians simply by allowing health care professionals to take advantage of new technologies. Under HB 1923, a person in an area without medical specialist will have a better opportunity to access specialty care. They will not necessarily have to drive to St. Louis, Kansas City, or even a regional hospital, but instead can have some specialty services delivered in their local family physician’s office.

On Thursday, the House also passed legislation to help homeowners in Holts Summit. Sponsored by Rep. Travis Fitzwater (R-Holts Summit), House Bill 1684 allows residents of Lake Mykee and Holts Summit to consolidate if they so choose. Residents of Lake Mykee have been told they have to build a new sewer system that would cost tens of thousands of dollars for every homeowner. A better option would be to consolidate with Holts Summit, which has enough capacity in its sewer system to assume these new residents. Consolidating would reduce costs for residents of both Lake Mykee and Holts Summit. This bill is a great example of a common-sense, good government measure where Rep. Fitzwater is working for all of his constituents.

Ethics Update

On Thursday, the Senate sent the first ethics bill of the session to Gov. Nixon. House Bill 1983, sponsored by Rep. Shamed Dogan, which prohibits statewide elected officials and members of the General Assembly from serving as paid political consultants. This bill is important because when a person signs up to be a public servant, they should not also be creating a side business that profits from that position.

As a side-note, HB 1983 was an example of how the legislative process should work more often. The bill improved at each step of the process. We learn in grade school that when the House and Senate pass different versions of the same bill that they have to figure out a way to resolve the differences. In practice, this means each side appoints members to a conference committee to reach a compromise. Typically, the results of conference committees are foregone conclusions. As a House conferee on HB 1983, it was different from almost any other conference committee on which I’ve served. Every member – from both sides and both sides of the aisle – contributed. And the end result, which split the difference between the House and Senate versions of the bill, made the bill a better product. (Sen. Kehoe also served on the conference committee.)

I believe this is just the first of several ethics bills that will reach Gov. Nixon’s desk. House Bill 1979, which closes the “revolving door,” is in conference and set for a hearing next Wednesday morning. Senator Kehoe and I are conferees on that bill as well. House Bill 2203, which I sponsored to prohibit exotic investments with campaign funds, is also in conference and ready to be set for hearing. (Again, Senator Kehoe and I are conferees.) Finally, I remain hopeful that legislation to ban lobbyists’ gifts and to update Missouri’s self-dealing laws to cover special gubernatorial advisors will also pass through the Senate in some form. 

The First Ever Override of a Gubernatorial Withhold

Under the Missouri Constitution, the legislature has appropriations authority. It decides where to spend your tax dollars. Under the constitution and traditions, the governor has three budget responsibilities and powers. The first is to submit a proposed budget to the legislature. The second is to sign or veto budget bills – including the opportunity to make line-item vetoes. The third power is to control the rate of state spending so that, if revenues are falling short of expectations, the governor can save the state’s credit rating by withholding appropriations. Under this power, the governor chooses exactly where to withhold.

Gov. Nixon (and his predecessors) have taken a broader view of this authority than the legislature has deemed appropriate. In some years, the legislature was frustrated by the governor’s decisions to withhold funds even though revenue was on track. By taking a broad view of withholding power, a governor can undermine the legislature’s appropriations power.

The rules on gubernatorial withholds changed in 2014 with the passage of Amendment 10 by a margin of 57 to 43. Under the new language of Art. IV, Section 27 of the Missouri Constitution, the legislature has the authority to override specific gubernatorial withholds.

Opponents have portrayed this new legislative power as dangerous to the state’s credit rating. I disagree for two reasons. First, it does not require the governor to reduce the total amount of his withholds. If the legislature overrides a withhold of $1 million on a specific line item, the governor can respond by withholding $1 million somewhere else. Second, a withhold override requires a super-majority of two-thirds.

This resolution also has the effect of giving the legislature shared responsibility for withholds. Previously, governors have been criticized by members of the opposing party for where they chose to make withholds. Under this change, that criticism will no longer be valid because the General Assembly now has the power to override those decisions.

On Wednesday, the Missouri House took its first action to exercise the powers granted by voters with Amendment 10. We overrode two withholds – $575,000 for the Missouri Scholars and Fine Arts academies, programs for gifted Missouri students, and $350,000 for rehab services for Missourians who have suffered traumatic brain injuries.

These withhold overrides are modest and responsible. Last year’s budget was based on a projection of 2.8 percent revenue growth. To date, state revenue is growing at a 4 percent rate. If this trend continues through the end of the fiscal year, the state will receive $300 million in revenue above appropriations. These two withhold overrides are a tiny fraction of that potential surplus.

Consent Bill Week in the Missouri House

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

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

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

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

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

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

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

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

Budget Week in the Missouri House

The House worked through our $27.3 billion state budget this week. By the time the budget gets to the House floor, the big picture items are nearly set. For example, Medicaid (which receives by far the most money) is an entitlement. It gets what it gets; the legislature can’t cut its ample share of the pie.

Education spending is another example. Every year the Budget Committee determines the amount that will be spent on the Foundation Formula for K-12 education. And once that budget bill hits the floor, that appropriation is the third-rail. Anyone who tries to reduce it on the House floor should brace themselves for 750 volts.

Here’s the big picture for the budget (see the pie chart below for an illustration):

First, it’s not in the chart, but this includes a two percent pay increase for state employees. Slow but steady progress is the best path for us to lift state employee pay out of the national cellar. This raise isn’t as much as I might like, but it is continued progress.

Second, the budget includes $9.8 billion in Medicaid spending, a four percent increase from last year. That’s more than one out of every three dollars in the state budget that goes to health care for Missourians who are elderly, disabled, or live in poverty.

Education is our second largest category. The state budget includes $6 billion for K-12 education and $1.3 billion for higher education. Next comes transportation, which, funded nearly entirely through dedicated taxes, receives $2.2 billion in funds.

The transportation budget includes the Highway Patrol. In recent weeks, some people have talked about moving Highway Patrol out of the transportation budget. Senate Budget Chairman Kurt Schaefer disagrees and so do I. I think it’s a bad idea and would fight against it.

Even though the big picture items are complete, there is still plenty of debate and work left to do once the budget hits the floor. This week I successfully made two amendments to the budget.

The first amendment I added transfers $1 million from the Columbia campus of the University of Missouri to Lincoln University for the explicit purpose of being used for agricultural research in conjunction with its status as a land-grant university. This amendment brought Lincoln’s total agriculture research appropriation from $0 recommended by Gov. Nixon to $2 million. In effect, however, it will be double that because Lincoln is eligible for matching federal grants.

The debate on this amendment was intense and the vote was close – 83 to 78. It would not have passed without bi-partisan support and the help of other representatives in floor debate. In particular, Rep. Josh Peters (D-St. Louis) helped by pointing out that Mizzou leadership had a $1.8 discretionary spending account last year. Locally, Rep. Travis Fitzwater (R-Holts Summit) helped move votes our way by talking about the impact Lincoln has on students within his district.

Lincoln is eligible for up to $5.6 million in matching grants from the federal government so I’m hopeful that the Senate will add even more to this line item.

The second amendment I added transfers responsibility for paying the current bond payments on the building formerly known as the Edward Jones Dome from the Office of Administration to the State Treasurer.

Due to my columns alone, this newspaper has probably paid for more ink about the stadium saga than any other issue affecting state government. Since I’ve probably spent 5,000 or more words on it already, I won’t detail how that transpired. However, it’s fair to say that no one in the legislature wants it to happen again.

By transferring responsibility for making the payment from OA to our independent State Treasurer Clint Zweifel, we are effectively appointing a trusted escrow agent to ensure that the money is held and paid for the purpose the legislature desires. This avoids a standoff on whether to make the appropriation at all. It should also remove any thought Gov. Nixon might have about unilaterally indebting a generation of Missourians for funding a new stadium with your tax dollars.

Finally, the House budget reduces appropriations to the University of Missouri system by $8.7 million. This is less than two percent of their total appropriation from state government and less than a 0.28 percent reduction in the system’s overall $3.1 billion budget. Just to be clear, that’s not a typo. For every thousand dollars in the UM System budget, the Missouri House cut $2.80, a big cup of coffee.

Some have alleged these reductions are overly punitive, vindictive, and will harm students. I disagree. The most obvious reason is that the overall reduction is tiny compared with the system’s overall budget. The second reason is that the reduction relates to performance. Since last fall’s conflagrations, Mizzou has suffered significant enrollment reductions for next fall. Students are quite literally voting with their feet and leaving campus. With fewer students, there should be reduced appropriations.

Third, and finally, sometimes you have to tell the people and institutions you love that they’re traveling down the wrong path. To my knowledge, I’m one of only two members of the Missouri House who are double-graduates of Mizzou – first as an undergrad and then in law school. I’m far from a Mizzou-hater. I am a proud alumnus. Over the last seven months, I’ve been dismayed to see our state’s flagship university dragged through the muck in the national media. Unfortunately, I think the university’s leadership has largely created this problem and needs to take further steps to fix it.


The Most Frivolous Legislation I’ve Seen in Six Years

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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