Convention of the States? One “Yes” Vote in Massachusetts

The Koch brothers and their allies think it would be a swell idea if the states got together to have a convention for the purpose of adopting amendments to the Constitution.

And they’re working at getting the state legislatures in 34 states (a two-thirds majority) to ask for one, as Article V of the Constitution provides. Right now, they’re at 28, and several more states are targets in this year’s legislative sessions. The amendments at the top of the wish-list would require a balanced budget and would limit federal power in other unspecified ways. And as misguided as those ideas are, it’s even worse — there’s nothing to stop a convention from entertaining other amendments once it gets underway, so we could also be looking at proposals doing away with same-sex marriage and even the most modest form of gun control, not to mention due process and equal protection. (Before you get too jittery, any amendments would have to be ratified by 38 states, a three-quarters majority.)

You’re probably thinking it can’t happen here in Massachusetts. And you’re probably right that our Legislature will not join the 28 on board so far. But there is a bill pending before the Election Laws Committee to have Massachusetts join the ranks of states asking for a convention. It was filed by Senate Minority Leader Bruce Tarr and it proposes a convention “limited to proposing amendments to the Constitution of the United States that impose fiscal restraints on the federal government [and] limit the power and jurisdiction of the federal government.”

(Senator Tarr on other occasions is not so unhinged and sometimes his proposals are laudable: for example he has filed legislation to prohibit broadband providers in Massachusetts from using or selling their customers’ internet histories without permission, reinstating an Obama-era rule that President Trump did away with.)

The Election Laws Committee has not scheduled a hearing date yet. It will be interesting to hear testimony in support of the bill, especially explanations about how amendments proposed by a convention of the states could be limited in the way the Senator fondly hopes. Stay tuned, and meanwhile, if you have friends in Maine, Kentucky, Minnesota, Montana, South Carolina, Virginia, Wisconsin, Washington or Idaho, tell them to be on the lookout. Those Legislatures are the ones the Kochs are pursuing.

The Governor’s Power to Cut State Funding: You Haven’t Heard the Half of It

With the recent unwelcome news that state tax revenues are continuing to fall short of projections, Governor Baker is “reviewing all options” to balance the budget.

One of the most familiar of those options is for the Governor to cut funds that the Legislature appropriated at the beginning of the fiscal year last July (these reductions are known as “9C cuts,” named after the provision of the General Laws that gives the Governor this unilateral power).  Back in December, the Governor cut the budget by $98 million via 9C cuts, an unpopular move that lawmakers protested as unnecessary at the time, but which has since been proven to be insufficient.

A lesser known budget-cutting tactic, which the Governor also used in December, is known as a “trust sweep.”  Some state monies are deposited into trust funds to be used only for specific purposes.  One example is the Housing Preservation and Stabilization Trust Fund, which the Legislature established a couple years ago exclusively for grants to provide “affordable housing for low-income families and individuals in the commonwealth, particularly those most at risk of becoming homeless.”

But facing the pressure of the budget shortfall in December, the Governor not only cut $98 million in appropriated funds, he also used trust sweeps to close the gap, informing the Legislature that various trust fund balances were “unneeded” and were therefore available for budget-balancing purposes.  Surely the Governor did not mean that additional money for affordable housing was “not needed” — he simply regarded other needs as more pressing.

Included in the trust sweeps, apparently, was some or all of the $4 million in the housing trust fund.  I say “apparently” because the administration was not inclined to disclose many details. State House News learned that 12 trust funds were under consideration for sweeping, the largest being the Commonwealth Care Trust Fund, which is intended to be used to increase health care coverage and which had a balance of $53 million at the time it attracted the Governor’s attention. Another target was the $7 million in a fund dedicated to assisting persons with mental illness or developmental disabilities.  The trust funds eyed for sweeping in December had balances totaling $145 million, more than the $98 million in 9C budget cuts that received press coverage.

Of course, the Legislature could have stopped the trust fund sweeps by passing legislation prohibiting them, but that would not have solved the budget shortfall.

This is not a huge amount of money in the context of a $40 billion budget. But I’m sure that advocates for homeless people, people with mental illness and people with developmental disabilities would have suggestions that more closely follow the purposes for which the funds were established. And a reminder, when you’re contemplating our current budget hole, that various piggy banks the Legislature established for various important uses have already been raided.

Who’s Geoff Diehl? A Listicle

The Herald’s saying that State Representative Geoff Diehl will challenge Elizabeth Warren next year. So what do we know?

  • He’s a small business owner from Whitman who was first elected to the House in 2010.
  • In 2013, he filed an amendment to a House bill to benefit veterans through a property tax exemption and a “Support Our Veterans” license plate program. His amendment would have required that all persons seeking state housing assistance provide their social security numbers. When his amendment was ruled out of order because it did not pertain to the primary subject of the bill, he and allies requested a roll call vote on that parliamentary ruling. The result, a 126-29 vote upholding the ruling, created the scandalous (if entirely specious) impression that 126 members of the House had voted to give priority for state housing assistance to undocumented immigrants over veterans. That roll call vote became the centerpiece of a flyer distributed in 20 legislative districts by the Massachusetts Fiscal Alliance and its sister PAC, Jobs First Massachusetts, targeting Democratic incumbents in 2014. The campaign had little success.
  • Also in 2014, after the Legislature increased the gas tax from 21 to 24 cents per gallon and tied future increases to the consumer price index, he played a prominent role in the successful ballot campaign to repeal that indexing. The repeal has resulted in a (greater) shortfall in the state’s transportation funding.
  • In 2015, he and other conservative legislators joined with other, more progressive groups to oppose taxpayer funding for the Olympics. Later that year, he lost the election for an open State Senate seat (the incumbent, Thomas Kennedy, had passed away in June) to State Representative Michael Brady.
  • He was the first state lawmaker to endorse Donald Trump for President, in February of last year. And he stood by his candidate through every controversy, even Trump’s disparagement of federal judge Gonzalo Curiel, when others grew faint of heart.
  • His legislative priorities for this session include a bill to give taxpayers the option to direct the state not to use any of their income tax payments to pay for abortion services. It requires the Revenue Department to calculate the amount of state money used to pay for abortion services as a percentage of the state’s General Fund, to apply that percentage to the liability of each taxpayer electing the option and to set those amounts aside in a special fund.

David Bernstein: “Let’s Dismantle the Massachusetts House of Representatives”

David Bernstein has really had it with the Massachusetts Legislature’s opaque back-room operations and its continuous failure to address many of the state’s long-term needs. And in this month’s Boston Magazine, he’s offering a solution: “Let’s Dismantle the Massachusetts House of Representatives”:

If all of this infuriates you; if you’re also enraged that Beacon Hill continuously fails to seriously address the state’s long-term needs for transportation, housing, education, and development; and if you’re sick and tired of the state legislature’s opaque back-room operations, I have a proposal for you: Eliminate the Massachusetts House of Representatives.

Points for boldness! This is also a thoughtful argument that touches on the feudal origins of the two-chamber system (the nobles needed a safe space where they could protect themselves against the tyranny of the majority) and the present effect of that system, which is to allow “special interests to gum up the works without any public accounting for legislators.” Exhibit A in this regard is the conference committee process, which comes into play every time the House and Senate pass differing versions of a bill:

As Beacon Hill watchers know, bills in conference committee pile up until the final days of the formal session, when the supposed work of two years, 200 legislators, and committees in open hearings is actually done in a hectic rush, by a handful of people, horse-trading within and between bills, until finally spitting out new versions for the two chambers to hastily endorse.

Also not to be missed is a timeline detailing Speaker DeLeo’s consolidation of power and predicting the end date of the DeLeo era (January 2021, when he becomes a lobbyist).

A couple thoughts:

First, in deciding on its governing rules for this new (2017-2018) session, the Legislature acknowledged the problem of the end-of-session bottleneck. The new rules require the joint committees, which handle the initial consideration of bills, to complete their work in early February rather than in mid-March, and they also prohibit the appointment of new conference committees within 14 days of the end of a legislative session. But there’s no deadline for conference committees to finish their work, so stay tuned to July of next year to see if these rules changes have practical results.

Second, if the Legislature is continually failing to address the state’s pressing issues, the question arises — what are they doing with their time?

My theory: they’re doing a lot of enacting, but the bills that are passed fall under the decidedly “noncontroversial” category — designating bridges and overpasses in honor of beloved community members; establishing sick leave banks for one state employee at a time, exempting a single municipal position from the Civil Service laws, or granting one additional liquor license to one town.

In 1997, the noncontroversial bills like these made up about a tenth of the Legislature’s output. Now it’s more like one in three.

Uncontroversial

The graph presents a corollary of Bernstein’s thesis — our Legislature avoids many pressing issues (charter schools and marijuana being two recent examples) and increasingly contents itself with hyperlocal items that lack wide application or great import.

Anyway, read the article. I’m not convinced about the remedy he’s proposing, but the diagnosis, seems to me, is beyond dispute.

Following Up on Some Issues

(A few developments on three posts from earlier this year: Baker’s welfare policy, Mass Fiscal’s disclosure policy, the SJC’s ruling on mandatory minimum sentences.)

Back in June, Governor Baker sought unsuccessfully to reduce state welfare payments to families in which a disabled family member was receiving federal disability payments. Under Baker’s plan, as the Herald reported, the state would no longer pay $400 per month to a grandmother who’s caring full time for her 13-year-old granddaughter who cannot walk or talk because of the cerebral palsy that she has had since birth. The cutoff of state funds Baker proposed would have left the family of two to survive on the $750 per month in federal disability payments the granddaughter receives.  The Legislature told the Governor no.

In August, the Supreme Court of New Hampshire struck down a welfare eligibility restriction in that state very similar to the rule Governor Baker wanted Massachusetts to adopt. The federal disability payments, the court ruled, were intended as specific assistance to persons with disabilities and were not intended to be available for the family’s general living expenses. One hopes that if the Legislature’s rejection of Baker’s proposal does not deter him from introducing it again, the New Hampshire Supreme Court decision will.

***

In August, after the Legislature passed a law requiring organizations that use direct mail for their electioneering to disclose the names of their five largest donors, just as organizations that use paid television, internet and print advertising must do, the Massachusetts Fiscal Alliance, purveyor of preposterous allegations about the voting records of its opponents, was left with a choice — either divulge the names of its five biggest donors, or curtail its electioneering.  They recently announced that they would keep their donors’ names secret, which means that their direct mail efforts this election season will not be indulging in their usual farcical claims but will merely encourage recipients to visit their website.  In an effort to portray this decision as a victory, Mass. Fiscal commented that it never wanted to become dull:  “We are always looking at ways to improve our effectiveness in communicating with the voters.”

***

In April, the Supreme Judicial Court heard arguments in a District Attorney’s appeal of a case in which the trial judge declined to impose the statutory minimum mandatory prison sentence for drug distribution on a disabled black man who had been convicted of possessing an amount of drugs weighing less than a five-gram packet of sugar.

Earlier this month, the court issued an opinion reversing the trial judge and ordering that the minimum mandatory sentence (3 1/2 years instead of the 2 1/2 years the trial judge ordered)  be imposed. But in that decision, the Court also sent a message to the Legislature that arguments about the unconstitutionality of mandatory minimums, such as the strong evidence of their racially discriminatory application during the twenty years that they have been on the books, might be appropriate for the court to consider in future cases.

No on No on 3

Last week opponents of Question 3, which would bar the extreme confinement of farm animals and the sale of meat and eggs produced under those conditions, registered themselves as a ballot committee under the name “Citizens Against Food Tax Injustice.”

This is the same group that earlier this year challenged the Attorney General’s decision to allow Question 3 to appear on the November ballot. By way of a spokesperson whom they describe as an anti-poverty activist and a recipient of food stamps, they offer a populist take on the evils of Question 3; it’s “a food tax that seeks to steal affordable food choices that most of us make, causing undue harm to the hundreds of thousands of residents in the Commonwealth who already struggle to feed themselves and their families.”

I’ll let the proponents and opponents of Question 3 fight it out over the effect that Question 3 would actually have on egg prices – I’m more interested in the bona fides of the group’s professed anti-poverty motives.

Of the $75,100 in the ballot committee’s treasury, $75,000 of it comes from Forrest Lucas, the Chairman of Lucas Oil (as in Lucas Oil Stadium, where the Indianapolis Colts play) and the deep pocket for “Protect the Harvest,” a non-profit created to defend agribusiness against what it calls a “food elitist movement” advocating for regulations that will increase production costs. (Mr. Lucas is also rumored to be a front runner for the position of Secretary of the Interior in a Trump administration, which is seeking a cabinet that is more “business-friendly” than the current one.)

Other evidence tending to disprove the so-called egalitarian sympathies of Citizens Against Food Tax Injustice:

One of the lawyers in the legal challenge that the group brought against Question 3 is Jon Bruning, a former Nebraska Attorney General who generated some controversy in his unsuccessful campaign for a U.S. Senate seat from that state a few years ago by comparing welfare recipients to raccoons, thusly: raccoons are “not stupid, they’re gonna do the easy way if we make it easy for them. Just like welfare recipients all across America. If we don’t send them to work, they’re gonna take the easy route.”

The Northeast Agribusiness and Feed Alliance, another Question 3 opponent, made sure that its annual meeting in Albany this summer included a trip to the State Capital to register protests to proposals to increase that state’s minimum wage.

Question 3 opponent National Pork Producers Council lists among its recent victories a labor ruling that shortens the rest break time that employers must afford to the livestock truck drivers who work for them.

I think we get it. Citizens Against Food Tax Injustice wants consumers to be able to afford the food its business interests produce. Despite its choice of a spokesperson with a commendable background in fighting poverty, it’s no more of an “anti-poverty” concern than Walmart is.  No on no on 3.

 

 

 

Yankee Doodle Town

Big day in Billerica yesterday. Governor Baker dropped in for a ceremony designating it “Yankee Doodle Town.” (The backstory: in 1775 a young Billerica patriot seeking to join the Minutemen was captured by the British while he was trying to buy a rifle. After tarring and feathering him, the Redcoats mockingly called him “Yankee Doodle.” And then, as so often happens, cultural appropriation transformed a term of derision into one of honor.)

The Yankee Doodle Town law (Chapter 240 of the Acts of 2016) was only one of many designations among this year’s enactments. Other laws bestowed honorifics in memory of various beloved community members upon: a bridge, a courtroom, a basketball court and a traffic island. The third Monday in April is now to be celebrated as First Responder Day.  (In some years First Responder Day will fall during the second-to-the-last full week in that month, aka Licensed Practical Nurse Week.)

And designations like these are just one of the categories of laws the Legislature passes that apply to only one town, or to only one public space, or to only one job title or one person. We have lots of laws exempting a single position (like the deputy police chief in the town of Haverhill) from the Civil Service laws, or establishing a sick leave bank for one state employee, or granting an additional liquor license to one municipality.

It occurred to me recently to wonder whether one-shot laws like these are making up a greater share of the Legislature’s statutory output than used to be the case. It seems I was right: in the 1997-1998 session, about one law in ten fell into this category, but in the two most recent completed sessions, that ratio has increased to closer to one in three. During that time, the Legislature gave special designations to 67 public spaces, or days (or weeks, or months), established 200 sick leave banks for state employees, exempted 34 positions from Civil Service laws, and granted additional liquor licenses to municipalities on 104 occasions.

This development, while nowhere close to the most worrisome legislative trend on Beacon Hill (disclosure: I confess to tuning in to the as-yet uncompleted contest between “Roadrunner” and “Dream On” for the title of Official State Rock Song), may be a symptom of another, more ominous tendency among legislators to adopt leadership’s position on issues of real significance and then to content themselves instead with hyperlocal items lacking in wide application or great import.  If I were among the 50 or so legislators whose positions on gambling underwent 180’s after pro-casino Bob DeLeo succeeded anti-casino Sal DiMasi as Speaker of the House, for example, I might think it wiser to keep my head down on the big stuff and and deliver some constituent services instead, even if they are services of the merely symbolic kind.

After the 2015-2016 session ends, I’ll check the numbers again to see if this trend is continuing. In the meantime, don’t forget to commemorate Eddie Eagle Gun Safety week, which starts on Saturday.