Category Archives: Local Government

Under Cover Of Jargon

The Indiana Statehouse is confusing. Often, that confusion is intentional. Lengthy bills are written in turgid “legalese,” and go on for pages. I’m a (recovered) lawyer and my eyes frequently glaze over.

And very often, you don’t have to be a hard-core libertarian to wonder: is this law really needed?

That was my first question when I received an email asking about Senate Bill 471, described as follows:

Would heighten the penalties for protests near oil and gas pipelines and other infrastructure by creating the offenses of “criminal infrastructure facility trespass” and “critical infrastructure facility mischief.” The bill provides that an individual who knowingly enters critical infrastructure facility without permission commits critical infrastructure facility trespass, a Level 6 felony punishable by up to 30 months in prison. Under the bill, recklessly or knowingly defacing such a facility constitutes critical infrastructure facility mischief, punishable by up to six years in prison as a Level 5 felony. In either case, the individual may additionally be liable to the property owner for damages, costs, and attorney’s fees. An organization found to have conspired with an individual who commits either offense may also be liable for a fine of $100,000. The bill newly defines “critical infrastructure facility” under Indiana law to include a range of oil, gas, electric, water, telecommunications, and railroad facilities, as well as any “facility that is substantially similar” to one of the listed facilities.

No one wants to see a “critical infrastructure” damaged. But a bit of digging suggests that more is going on with this bill–being pushed in several states by ALEC, evidently in reaction to Dakota pipeline protests– than the protection of “critical” utilities.

As my correspondent notes,

This description is accurate, but to get into more specifics one of the most troubling provisions is Ch. 10, Sec. 4 that says if an organization is found to be a conspirator with a person convicted of either trespassing or committing criminal mischief on “critical infrastructure” the organization can be fined up to $100,000. Sec. 5(a) could also potentially be interpreted as creating a cause of action by someone who has suffered damages not only against the person who caused the damage, but an organization found to be a conspirator with that person, to recover those damages. If that was the case the organization could be liable for more than a $100,000.

A Sierra Club officer explains the effect:

A couple of years ago the Hoosier Chapter was in discussions with some Northwest Indiana groups about a protest at the BP Whiting Refinery to oppose its expansion to allow it to process tar sands petroleum. When it became clear that some of the groups were contemplating civil disobedience, the chapter withdrew from the discussions, since the Sierra Club forbids illegal activities. In the event, about 40 people sat in front of an access to the refinery and were arrested for trespassing. I believe that most were let go without a fine. Under the proposed law, could we be found to have participated in the protest even though we withdrew? Could we be found liable for informing the public about the protest via our website, FB, and twitter, even though we didn’t support the civil disobedience? Certainly we would have to think long and hard about even participating in such discussions under this bill.

And that, I think, illustrates the actual purpose of the bill: to stifle dissent.

Indiana already has laws against trespassing and damaging property. S.B.471 ramps up the severity of the potential charges–from misdemeanors to felonies–and greatly increases the penalties. Although the bill contains a recitation that it is not intended to apply to “constitutionally-protected activities” (a provision added to mollify opponents of the measure), the question from the Sierra Club officer illustrates the chilling effect.

If one or two people at a protest inflict damage that was unintended and unforeseen by others, those others–including not-for-profits and civic organizations–run the risk of being hit with enormous fines. Of course they would “think long and hard.” That’s the whole point.

I am aware of no evidence that existing measures against trespass and property damage are inadequate or ineffective. But unnecessary and chilling as it may be, S.B. 471 is apparently moving “under the radar” toward passage.

This is how it’s done by the big “players” who understand how the system works.

While public attention and media coverage (such as it is) are focused on high-profile measures like bias crimes and teachers pay, troubling laws get a pass–in both senses of that word.

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Indiana Forward

I recently read an article that identified pluralism as the great challenge of our time.

Most Americans no longer live among people who look, pray and think as they do; we are no longer surrounded by people whose minor differences offer no challenge to the assumptions that ground our worldviews.

Will our tribal differences allow us to create genuine, supportive communities?

Psychiatrists can probably explain why some people are comfortable in a diverse environment and others are threatened, but that diversity is an inescapable aspect of modern life. The challenge facing lawmakers is how to craft rules that respect the right of threatened folks to hold their beliefs while protecting the targets of their disapproval or hatred from harm.

I recently posted about a letter to the editor from four Indiana legislators opposing a hate crimes bill.The tone of that letter made it abundantly clear that lawmakers who wrote it see the bill as criticism of  their belief that certain Hoosiers are unworthy of explicit protection. (The LGBTQ community was the clear, if unidentified, target of their “righteous” enmity.)

A very different perspective was offered by Michael Huber, who heads the Indianapolis Chamber of Commerce, and Ann Murlow, CEO of United Way of Central Indiana. In a column written for the Indiana Business Journal, they reminded readers that Indiana is one of only five states without a hate crimes law.

It’s a blind spot in our justice system and a flaw in our business climate that becomes more conspicuous with each passing year.

Nationally, reports of crimes motivated by a victim’s unchangeable characteristics—such as race, religion, sexual orientation and gender identity—increased 17 percent from 2016 to 2017. Stories of violence and vandalism from across the state show that Hoosiers aren’t immune to this trend.

The column reported on the establishment of a coalition called Forward Indiana by members of the business, nonprofit, education, faith, government and philanthropy communities.

That coalition understands that an inclusive bias-crimes law is good for people, employers and our state. The Indy Chamber has also reactivated the statewide Indiana Competes coalition, extending its anti-discrimination mission to make the business case for action against bias crimes.

Together, we represent thousands of companies, civic organizations, religious and social service groups, and individuals from all walks of life in support of a strong law with a clear list of personal characteristics that reflects the diversity of modern-day Hoosiers.

Simply put, we want Indiana to reject hate without loopholes or ambiguity.

Indiana Forward recognizes that failure to declare, in no uncertain terms, that government will forcefully protect its citizens from crimes motivated by the bigotries of other citizens would send a positive signal to self-righteous haters.

Huber and Murtlow are also absolutely right when they point out that passage of a hate crimes bill that is not inclusive, a bill that surrenders to theocratic demands to exclude certain citizens from its protection, would be an endorsement of the position that it is acceptable to hate members of that group.

If we go to the Statehouse ready to exclude some of our fellow citizens— trading equality for expediency—any victory would be a hollow one that surrenders any claim to real leadership….

If Indiana passes a bias-crimes bill in 2019 that pointedly excludes gender identity, it would only amplify the negative perceptions that hinder our economic development efforts.

No one wants another Religious Freedom Restoration Act; our partners still struggle with the fallout as they try to appeal to skilled workers, attract conventions and convince employers that Indiana is an inclusive and inviting state.

But the lesson of RFRA isn’t to avoid controversy, it’s that discrimination is bad for business and wrong for Indiana. Leaving gender identity out of bias-crimes legislation would leave us on the defensive, limiting our ability to welcome a diverse workforce and the business opportunities that follow.

It’s not enough to lead with an affordable business climate when human capital is also a top priority. Passing a watered-down bias-crimes law would force CEOs to rethink Indiana as a competitive place to recruit and retain talent.

We shouldn’t squander this opportunity to lead with hesitation or half-measures; the General Assembly should pass a strong bias-crimes law that doesn’t leave any Hoosiers behind.•

In other words, let’s bring Indiana into the 21st Century.

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Speaking Of Thought Crimes…

Or, in this case, a crime against thought.

A couple of readers alerted me to a rambling, incoherent and profoundly inaccurate “op ed”opposing hate crimes legislation that was sent to a number of smaller Indiana newspapers by four members of the Indiana House of Representatives: Bruce Borders, Matt Hostettler, Christopher Judy and Curt Nisly. I don’t know any of them, but I do know that if students of mine displayed so profound a disconnect from reality, they’d get failing grades.

The letter began by asserting that the proposed hate crimes bill is “an attack on Western Civilization,” and they ramp up the hysteria from there.

They do make one valid point: in our legal system, we punish behavior, not ideas. If the legislation proposed to sanction hate speech, they’d be correct to oppose it. But that isn’t what a hate crimes bill does–and contrary to their assertion that passage would usher in an Orwellian world of thought control (and no, I am not making that up, that’s part of their screed), that thought control has yet to emerge in the 45 states that have had similar laws on their books for a number of years.

Indiana’s version has yet to be finalized, but here’s the general way these measures operate: let’s say person X beats up person Y. Let’s further assume that the crime of battery carries a statutory sentence of 2-4 years. The judge must decide what portion of that time X will serve, and will make that determination after weighing what lawyers call mitigating and aggravating circumstances.

Let’s say X had previously been law-abiding, had too much to drink, and Y insulted his wife. Those are mitigating circumstances, and the Judge is likely to give him the minimum sentence called for by the statute.

But what if X had previous arrests or convictions, showed no remorse, and attacked Y out of the blue? The judge would consider those facts to be “aggravating,” and would undoubtedly hand down a sentence at the high end of the statutory range.

The judicial system recognizes a number of specific elements that are considered mitigating or aggravating, and that Judges should take into account in determining the punishment for a criminal act. Currently, in Indiana, motivation due to bigotry is not one of those standard elements. A hate crimes bill will add it.

Battery is a crime, a criminal act. In my hypothetical, it carries a sentence of 2 to 4 years. (I have no idea what the statutory range really is, this is for illustration.) If Indiana passes a hate crimes act, and X beats the you-know-what out of Y while shouting racist or anti-semitic or homophobic epithets, the Judge will be required to take that evidence into account when determining the length of X’s sentence.

In all probability, some judges would consider the hateful motivation even in the absence of a law, but there is no requirement that they do so. Having such a law on the books is recognition that criminal acts prompted by bigotry are not only unAmerican, but cause fear and anxiety in members of the victim’s targeted group.

Please note, we are talking about criminal acts. If Representatives Borders, Hostettler, Judy and Nisly want to tell the world they hate gay people or Jewish people or black people, they remain free to do so. If they want to “hold beliefs contrary to governing authorities,” this measure will not unleash the “Thought Police,” despite their hysterical assertions to the contrary.

They just can’t communicate those thoughts through anti-semitic graffiti on a synagogue wall–because that would be an act— the crime of vandalism.

I don’t know whether the letter is evidence of a lack of candor or a lack of basic understanding of the legal system, but if its authors are representative of our representatives, it explains a lot about the Indiana General Assembly.

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It Isn’t About Moderates and Progressives

Democrats are constantly arguing about whether the party should support moderate or progressive politicians. It’s an argument that illustrates Americans’ tendency to prefer nice, neat labels to the messiness of reality: most people hold a variety of positions that can’t all be neatly shoved in a drawer marked “liberal” “conservative” “socialist” and so forth.

Thinking people are hard to pigeonhole.

A paragraph from a column written for the Indianapolis Recorder by my SPEA colleague Marshawn Wolley  illuminates the real issue. It’s leadership.

Voters deserve officeholders who are willing to lead–mayors and governors and Presidents who are willing to stake out reasoned positions on issues (most of which are actually ideologically neutral), willing to explain their reasoning to the public, and willing to go to bat for them.

The context of Marshawn’s column was the upcoming mayoral election in Indianapolis, where a reasonably popular Democratic incumbent will run for re-election in a city that is reliably blue. Here’s the paragraph that caught my attention.

Personally, I think the mayor’s popularity is deceptive, and perhaps even soft in the Black community, and our times do not favor political moderates. The mayor didn’t show up on mass transit, the IPS referendum and was late on living wages for city workers. Mass transit was the biggest policy issue that could impact social mobility in a generation. He didn’t lead here. IPS is not called Center Township Public Schools — it’s called “Indianapolis” Public Schools. When the mayor’s Office of Education Innovation is approving charter schools they are happening in the IPS district. He was wrong to not weigh in on the referendum. While he eventually got around to supporting living wages, Black Democrats, who really need to speak out more, argued that a balanced budget couldn’t happen on the backs of workers. Each of these issues were rallying cries within the community and he missed them — bipartisanship and a balanced budget don’t drive people to polls.

I think Marshawn has confused a fear of staking out a leadership position (and thus becoming a target for criticism) with philosophical “moderation,” but the rest of his indictment is spot on.

Reluctance to exercise leadership is a liability, and not just within the Black community.

Another excellent example of this mayor’s allergy to getting “out front” of important issues involves the State DOT announcement earlier this year of its plans to “repair” the interstates that carve up Indianapolis’ downtown. The state’s plan would double down on ungainly remnants of a fifty-year-old bad decision that  impacts walkability and intrudes on five historic neighborhoods. A significant number of residents and businesses have come together to make the case for rethinking those highways; I’ve previously posted about the details of the “rethink” arguments.

Favoring a particular configuration for downtown interstates is not politically conservative, liberal, progressive or moderate.

The Mayor was finally persuaded to write a letter to the state’s DOT, supporting the ReThink plan, but has otherwise been invisible on the subject–just as he was invisible on mass transit and the IPS referendum.

It’s highly likely that political calculation drives this reluctance to engage; after all, when you take a stand, someone will disagree. Why take a chance of pissing people off when the political landscape looks advantageous–when the odds of re-election are in your favor?

On the other hand, that impulse to win office by “laying low” raises a question: why do politicians run for offices like mayor and governor if they don’t have a vision for improving their city or state? Why do they seek office if they aren’t interested in leading their communities in a particular direction? Do they view these offices merely as stepping-stones to something else?

Timidity isn’t the same thing as bipartisanship. It isn’t the same thing as moderation, either. Inaccurate labels just confuse the situation.

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Home Advantage

I’m not ready to move on from the subject of yesterday’s post, which was triggered by the efforts of numerous cities to lure Amazon’s second headquarters.

Let me just share two additional observations, one from a recent study reported in Governing, and one emerging from a recent argument in Indianapolis’ City-County Council.

The Governing article shared a study done by the Urban Institute.

In choosing New York and D.C., Amazon opted for two cities that have led the economic expansion since the end of the last recession in 2009, far outpacing the rest of the nation in job growth. The decision drew the ire of politicians at the state and federal levels, along with others who had called on the tech giant to place its second headquarters in a city where it could play a more transformative role in the economy.

Yet a new study from the Urban Institute suggests that landing such a large corporation isn’t actually the best way to build a local economy and spur job growth.

If give-aways massive enough to “steal” large employers–to lure them from City A to City B (in what certainly seems to be a national zero-sum game) isn’t a sound growth strategy, what is?

Instead, the report says, cities should focus on growing existing local firms, not trying to lure out-of-town companies and poaching firms from other cities. “Most job expansion and contractions come from birth and deaths of homegrown businesses or expansion or contractions of existing home-based businesses,” says Megan Randall, a research analyst with the Urban-Brookings Tax Policy Center and a co-author of the report.

According to Randall, when so-called “marquee companies” locate in a new city, they tend to displace existing businesses, especially mom-and-pop stores. Supporting and expanding homegrown enterprises has been a more successful strategy for adding job growth.

Worse, giving up tax revenues to lure a new company puts a strain on local services, particularly schools.

As New York University business professor Scott Galloway put it in an email to Barron’s on Tuesday, the tax incentives from New York amount to “an elegant transfer of funds from municipal school/fire/police districts to Amazon shareholders.”

Cutting into services and school budgets makes the local workforce less attractive in the long run, and the location less alluring, the Urban Institute report notes….

Cities would be better served, according to Randall and other economic policy analysts, by improving schools and public services, and focusing on nurturing their existing network of businesses.

When a city offers tax giveaways to lure a company, the government goes into the negotiation with a marked disadvantage because of what economists call “information asymmetry.” The city doesn’t have all the information about what the company is looking for. In some cases, a company may choose a city it would have moved to anyway, pocketing the tax incentives even though they weren’t a deciding factor.

“Firms are in a advantageous position,” Randall says. “They know cities want to attract jobs and create opportunities for their residents. They know they are in the position to leverage a public benefit from what they have to offer.”

What the article calls “negotiation” is more often–and more accurately–described as extortion. And that brings me to a recent dispute in Indianapolis’ City-County Council.

Corteva is a company formed last year, as part of Dow Chemical’s mega-merger with DuPont. Delaware-based Corteva—which includes the local operations of Dow AgroSciences—is set to be spun off as a public company in June 2019, and it employs about 1,400 workers in Indianapolis.

The City-County Council approved 30 million dollars to “incentivize” the company to maintain operations in Indianapolis.  Most Councilors weren’t happy about it.

The incentive deal authorizes the issuance of $30 million in economic development revenue notes to Corteva from the city of Indianapolis, which would be paid back with about $5 million annually in tax increment financing funds that the city had been passing through to government units such as schools, libraries, parks, police and fire protection. Those entities would no longer receive those funds while the notes are being paid off.

The council voted 18-7 to approve the deal. Democrats Zach Adamson and Stephen Clay voted against the plan as did Republicans Jeff Coats, Danielle Coulter, Janice McHenry, Jefferson Shreve and John Wesseler.

Even council members voting yes weren’t happy.

“It’s not the best deal; I’m not excited about it,” said Democrat Jared Evans. But he said the long-term benefit of keeping the jobs in the community outweighed the short-term harm to the taxing units.

Zach Adamson characterized the incentives as “nothing short of extortion;” he was exactly right. Far too much of what passes for “economic development” is better described as bribery and/or blackmail. “What will you pay us to come?” and “What will you pay us to stay?”

These deals steal money that would otherwise be used to improve the local quality of life. And as the Urban Institute study reaffirmed, the quality of life–good schools, good parks, convenient transportation, effective public safety, etc.–is what really drives job growth and economic development.

When you rob Peter to pay Paul, you just make both of them poorer.

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