Tuesday, May 29, 2012

Schweich, The Fiscal Note and that $100K Check from Humphreys

So… Let’s see, when we last left off… David Humphreys had written a $100,000 check to Auditor Tom Schweich.  I wrote about it in my usual baffled manner because Schweich isn’t up for reelection this year.

A reader then suggested that Humphreys, a strong proponent of changing the non-partisan court plan, was showing his support for the auditor on the eve of a fiscal note being prepared by the auditor.

Not so, replied Schweich’s office, saying that the legislature had written a fiscal note so the auditor would not be doing it.

Well, it is so.  The next day: “Now that we know they (the legislature) did not write a fiscal note for SJR 51, we will follow the practices we have in place for preparing them…. I (Spence Jackson) must refute, in the strongest possible terms, your anonymous tipster’s insinuation that this office would be inappropriately influenced by campaign contributions.”

But wait!, critics called, Schweich announced he wouldn’t be doing anymore fiscal notes after the court ruled that he lacked the constitutional authority to do so.  (See statement below).

Actually, I’m told, that policy only covered initiative petitions.  Because this came through the legislature, that policy does not apply.

But there is a strange logic in play now.  I mean if the auditor lacks the constitutional authority to write a note for an initiative petition, it’s hard to see how he has authority to write one for a senate joint resolution.  Lawyers, discuss…

Schweich’s Temporary IP Policy

MEMORANDUM

To:       Senior Staff and Jon Halwes

From:   Tom Schweich

Re:       Fiscal Notes

Date:   April 17, 2012

After consultations with the appropriate staff members, I have decided to modify temporarily the process of preparing fiscal notes.  This adjustment will remain in effect until our office receives specific guidance from the Missouri Court of Appeals and/or the Missouri Legislature.

During this election cycle, our office has received 144 initiative petitions, compared to just 16 received in the 2004 election cycle.  We have received input from hundreds of state and local government entities, lobbyists, attorneys, and interested citizens regarding the fiscal notes for these petitions.  Under the law, we have only 20 days to prepare the fiscal impact note for each submission and our ballot summary is limited to 50 words.

Moreover, during this election cycle, we have been sued 36 times regarding these petitions, and Secretary of State Robin Carnahan has been sued even more often than our office.   These lawsuits are often financed by lobbyists with substantial resources whose only apparent goal is to prevent Missourians from ever voting on these matters.  I believe they have no interest in an accurate fiscal note and that they only want to protect their own financial interests by obstructing the initiative process.  Their efforts have cost Missouri taxpayers and this office significant time and resources.

Then, as you know, in Brown v. Carnahan, a case involving tobacco taxes, Judge Beetem ruled that our office does not have the constitutional authority to issue any fiscal notes, despite the clear legislative mandate to do so.

Following that, in Francis v. Carnahan, Judge Green ruled that our fiscal note failed to take into account data submitted to the Court, but not submitted to our office during the 20 day statutory period that we have to review the petitions.  The effect of Judge Green's ruling is that an opponent of a ballot initiative now has incentive not to submit information to our office during the 20 days, so that he or she can later sue, submit new information, and get a ruling that our note failed to consider the materials that we did not previously have.  We believe this decision runs contrary to prior appellate and circuit court rulings and practice, and renders a legally sustainable analysis of the data submitted to this office virtually impossible.

More recently, Judge Joyce ruled, in Rogers v. Carnahan, that our fiscal note in the income tax case was "unfair" because the oral testimony at trial of the witness opposing the petition was "credible" and testimony of the witness supporting the petition was "not credible."  As you are well aware, we do not have the resources or the time (20 days) to take testimony from the hundreds of citizens and government officials who prepare the data submitted to our office for consideration.  We do assess the credibility of the written submissions, but assessment of the people who wrote the submissions is not possible.  Moreover, Judge Joyce said that, in preparing the notes, we may not assume that the legislature will take the actions required by the ballot initiative.  In fact, Judge Joyce's opinion requires us to assume the legislature would ignore the constitutional mandate to replace the current income and related taxes with a new sales tax.  If we are required to assume the legislature will not do what it is mandated to do, we will be required to state that the fiscal impact is unknown with respect to any initiative petition that requires legislation.

There are also bills pending before the legislature that either eliminate our role in the fiscal note process or change the process.

Because one judge believes we cannot write any fiscal notes, another turns aside our notes based on data we did not have, and a third requires us to assess the credibility of unnamed people who have prepared written information for our office and then assume the legislature will not implement the initiative, I agree with others in this office that we cannot at this time write notes that will sustain a legal challenge by the well-financed proponents and opponents of the initiatives.  I cannot justify wasting taxpayer resources in an effort to do so until we have significant clarification from the courts or the legislature.

The good news is that we have appealed or will appeal all three rulings and hope to have clearer guidance before the next onslaught of initiative petitions.  In the meantime, should we receive initiative petitions in which the fiscal impact is in dispute, pending further judicial or legislative action, we should simply issue the following fiscal note summary:

"Due to recent court rulings that the auditor (1) does not have the authority to issue a fiscal note, (2) must consider data and testimony not presented to it during the statutory submission period, and (3) cannot assume the legislature will implement the initiative, it is impossible to state the fiscal impact."

TJones Hearts Dokes

Speaker-elect Tim Jones is headlining an event for Eugene Dokes in House 70.  Dokes is in a Republican primary.  He also presided over the debacle of the St. Charles Presidential Caucus which turned off a lot of engaged Republicans in that area.

But Jones is stepping into the primary because: Republicans recruited Dokes before that miserable performance; House 70 is a toss-up district; and they think that Dokes’ opponent isn’t a legitimate option to try to win in the general.

Maps Done Done

Late last week, the Missouri Supreme Court upheld the new congressional map.  Read Elizabeth Crisp’s article Here.

Excerpts from Russ Carnahan’s Statement Court Decision

“Thanks to Congressman Clay and his deal with state Republicans and his attempt to keep a politically comfortable seat for himself, St. Louis no longer has two seats in the U.S. House, we're now down to one single seat.  Only one seat, not two, to support President Obama, only one seat, not two, to win back the majority for Democrats in the U.S. House. Congressman Clay failed a key test of leadership by not standing up for the people of our region or our Democratic Party. During the weeks ahead, this will be one of many defining issues of our campaign that will help spur a healthy debate about who is the best fighter for the newly merged 1st Congressional District.”

Casas Chugs On

In House 79, Martin Casas’ latest email blast touts his latest endorsements “On Monday, The St. Louis Association of Realtors decided to support my campaign, on Tuesday Collector Of Revenue Greg F.X. Daly threw in his support, on Wednesday the St. Louis Young Democrats announced their endorsement, and last night the members of the Sixth Ward Democrats endorsed my campaign.”

Me

Lobbyist Rodney Boyd interviewed me on his radio show last weekend, cementing my status as a semi-celebrity.  “You know normally at the end of the legislative session I will get the speaker, the floor leader, someone from inside the beltway, our beltway in Jefferson City, to come in talk about the highs and lows… I thought this time I’d do something different…”  Hear it Hear.

eMailbag

On the “Michael Jackson” drug

“Sounds to me like DOC picked a controversial drug/method to guarantee Jay Nixon won’t have any executions during his tenure. Same for Chris Koster.  He gets to look tough on crime while knowing it will be years before the litigation on the drug resolves itself therefore pandering to all sides.”

On Mike McGhee’s Car

“It is the opinion of the Missouri Ethics Commission, for purposes of matters under Chapter 115 RSMo, that when an individual is being reimbursed for the use of that individual’s vehicle by a county or other political subdivision, the vehicle becomes like a county vehicle.  Therefore putting a political sign on such vehicle would appear to be a violation of section 115.646 RSMo…”

Tweet of the Weekend

Joe Smith ‏@rep_joe_smith: "The WWE Tribute to the our fallen heros for Memorial Day and narrated by @JohnCena was outstanding and very respectful.  #WWE #RAW @WWE"

Lobbyists’ Principals Changes

From the Pelopidas website:

Jack L Todd added Trinity Industries Inc.

Matt Hill deleted John Britton Associates, and all of those clients of Britton.

Jessica Hodge deleted Lewis, Rice & Fingerish, and Fresh Ideas.

$5K+ Contributions

Ameren UE Political Action Committee - $5,056 from Ameren Fed PAC.

Jay Nixon for Missouri - $10,000 from Gregory Boyce.

Jay Nixon for Missouri - $15,000 from Peabody Investments.

Citizens to Elect Kurt Schaefer - $5,005 from Mike Kehoe.

MO Democratic State Committee - $10,000 from CHIPP Political Account.

Civic Progress Action Committee - $7,400 from U.S. Bank.

Missourians for Responsible Lending - $15,000 from Communications Workers of America.

Give Missourians a Raise - $15,000 from CWA District 6 Political Educ Committee.

Putting Kids First in Boone County - $12,500 from Pathways Community Health.

MO State Teachers Assoc Legislative Impact Co - $10,000 from Southwest Region MSTA.

Clean Water STL - $10,000 from Monsanto Company.

Clean Water STL - $15,000 from Committee for Bond Initiatives.

Committee Against Rampant Rate Increases - $20,895 from Renew Missouri.

Missourians for Health and Education - $25,000 from Gary Forsee.

MO College Republicans - $10,000 from Gary Grewe.

MO Republican Party - $25,000 from Anheuser Busch Companies.

Bank of America Missouri Political Action Committee - $7,000 from Bank of America Corporation State and Federal PAC.

Contribution Commentary

Former University of Missouri president Gary Forsee drops $25K into the campaign to pass the cigarette tax increase.

Birthdays

Happy birthdays to Reps. Cloria Brown (70) and Glenn Klippenstein (75), lobbyist Zach Brunnert (25), and Rob Schaaf staffer Chris Dunn.