The Legislative Process

Yesterday, the Indianapolis Star ran the second part of Matt Tully’s series on ethics at the Indiana General Assembly, or how a bill really becomes a law.

What struck me most was the irony–the amounts of money spent by vocal proponents of free enterprise and the market economy in pursuit of legislation privileging their positions in that market and/or protecting them against competition. Sunday liquor sales, gaming operations, banking rules, collective bargaining…for a state that  celebrates capitalism, our lawmakers spend an inordinate amount of time picking winners and losers.

Want an example?

Also appearing in yesterday’s paper was a report on a hearing held by the House Utility Committee on the boondoggle known as the Rockport Coal-Gasification plant.

As readers of this blog will recall from previous posts, then-Governor Mitch Daniels entered into a thirty-year deal with Leucadia National Corporation, represented in Indiana by long-time Republican operative and Daniels friend, Mark Lubbers. (If the name sounds familiar, it’s because Mark Lubbers’ wife Teresa was appointed by Daniels to head up the state’s Commission on Higher Education.) The terms of the deal obligated the state to buy the company’s synthetic gas and resell it on the open market. Indiana ratepayers would get discounts or increases on their bills, depending upon whether the synthetic gas was more or less expensive than gas available on the open market. Seventeen percent of ratepayers’ bills would be tied to the Rockport plant’s rate.

State Senator Doug Eckerty, who opposes the deal, has sponsored a bill that would send the agreement back to the Indiana Utility Regulatory Commission for a full review.

In the committee hearing, Eckerty pointed out that gas prices have plummeted since the plant was first proposed, and that the manufacture of synthetic gas is no longer economically feasible. Coal gasification projects in other states have been abandoned. As he noted, if private sources will not finance these projects, why should taxpayers?

When natural gas prices were high, there was at least a thin justification for a deal that used Indiana ratepayers to guarantee the profits of a private company. Now even that pretense of a public purpose is gone. Mark Lubbers testified that gas prices are volatile, so the plant would protect ratepayers if and when the prices spiked again.

The problem is, whether gas prices rise again is irrelevant. The state should not be picking private-sector winners and losers. I hate to use a sports analogy, but government’s role in the economy is best compared to that of the umpire or referee in a game. When government abandons that role–when it suits up and plays with one of the teams–it is improper. It violates the rules, undermines the sport, and makes cynics of the onlookers.

It’s no different when the game is the free market.

Comments

Prognosticating and the Supremes

As any lawyer will attest, predicting the outcome of Supreme Court cases is foolhardy in the extreme. But I’ve never let the prospect of making a fool of myself stop me, so I’m going to go out on a limb and do just that.

Yesterday, as practically everyone within earshot of a news report knows, the Court heard the first of two important cases on marriage equality. Yesterday’s arguments dealt with the appeal of the Ninth Circuit decision striking down California’s Proposition Eight; today’s will center on the constitutionality of DOMA, the “Defense of Marriage” Act.

I expect the Court to strike down DOMA, which–among other things–allows the federal government to treat marriages recognized by different states differently. Throughout our history, laws governing marriage have been the province of state governments. DOMA allows the federal government to treat legally married citizens from some states very differently than legally married citizens from other states. I expect the Court to follow its own ample precedents on federalism and equal protection; I’m pretty confident DOMA will fall.

That said, the betting in legal quarters on Proposition 8 has always favored a Court cop-out.

When the Justices asked for briefing on the issue of standing, most lawyers following the case saw that as a signal that they were looking for a way to dispose of the case on procedural grounds, that they were looking for a way to avoid ruling on the merits of the question whether marriage–which the Court has repeatedly ruled is a “fundamental right”–must be made available to gay citizens as well as straight ones.

As disappointing as it would be to have the Court sidestep that question, a decision to the effect that only the Governor and Attorney General of California had standing to appeal the judgment (or a ruling that review had been “improvidently granted”) would have the effect of reinstating the lower court’s decision. Although such a decision would affect only California, that state has some 11% of the population of the U.S. The number of citizens living in states with marriage equality would grow dramatically, adding to the pressures that are already mounting elsewhere.

As numerous observers have noted, in the absolute worst-case scenario, the Court’s decisions in these cases can only slow the inevitable. Same-sex marriage will be a national reality within the next few years, with or without the Court’s assistance. A decision containing a ringing affirmation of equality would be lovely, but its absence will not alter the eventual result.

So there you have my predictions. I hope I’m wrong about Proposition 8, but given the questions thrown at the litigants during yesterday’s arguments, I doubt it.

At this point, we’ll just have to wait and see.

Comments

The World’s Worst Legislature

Harrison Ullmann used to call the Indiana General Assembly “The World’s Worst Legislature.”

At the start of each legislative session, my husband used to warn everyone to watch their pocketbooks and count their spoons–“Like the shark in Jaws, they’re baaack…”

Yesterday, I linked to the Star article detailing the cozy relationships, conflicts of interest, and general lack of sensitivity to ethics that characterize the Indiana legislature. Today’s lesson involves a law that has been sailing through the process with little or no conversation–a measure that illustrates perfectly the perils of being a city in a state with no home rule in a state governed by a herd of petty dictators.

Senate Bill 213 would invalidate Indianapolis’ hard-won ordinance that protects gays and lesbians against job discrimination. By its terms, the law–which has passed both houses and awaits Mike Pence’s signature–denies cities and towns the right to pass employment measures inconsistent with state or federal law. The sponsors insist that their goal was to address the hodgepodge of wage and hour laws around the state, not to invalidate the grant of civil rights, and profess surprise that the measure could be interpreted to do so.

Either the sponsors are being disingenuous, or they are unbelievably naive. By its terms, the bill invalidates any provision of an employment contract that gives employees benefits not granted by the state or required by the federal government. Nowhere does the language limit its effect to wages.

Municipalities in Indiana whose own residents have engaged in the democratic process and passed civil rights protections for GLBT employees include Bloomington, Lafayette and West Lafayette, Michigan City, South Bend, Fort Wayne, Evansville and New Albany. But then, what do the citizens of those cities know? Why should they be allowed to make their own decisions about the requirements of fair treatment?

Even if you believe that this is a case of unintended consequences, the essential lesson remains: our arrogant lawmakers believe they know better than local folks what we should be able to pay workers and how we should be able to treat them. That attitude is manifest in the discussions about mass transit–why should we allow central Indiana residents to decide for themselves whether they want transit enough to pay for it?

I remember the political activism that preceded Indianapolis’ passage of the current ordinance. A lot of people worked very hard to pass the measure–exactly the sort of civic activism that all politicians claim to respect, and that teachers try to encourage.

Yesterday, during a discussion of political activism, several of my undergraduate students justified their political apathy by expressing a belief that individuals really can’t do anything that would change or otherwise affect “the system.”

Indiana’s legislators are working hard to prove them right.

Comments

Conflicts of Interest

Matt Tully has begun a series of articles highlighting the numerous conflicts of interest at the Indiana Statehouse. My husband’s reaction was “so what’s new?” And it is depressingly true that here in the Hoosier state we get these revelations every few years. Nothing seems to change.

On the one hand, there is a legitimate dilemma in states like Indiana, where our legislature is part-time and those we elect have “real world” jobs. One of the arguments for such legislative arrangements is that those who serve will have expertise in the private sector that can illuminate the lawmaking process. If a state representative knows a lot about banking or insurance, for example, should we not avail ourselves of that knowledge?

The problem is, the sorts of conflicts Tully describes go far beyond recognition of specialized knowledge. It’s one thing to listen to a legislator-banker’s opinion on a pending bill, and another to put him in a position to advance legislation benefitting bankers–or worse, a position to derail efforts to regulate them.

I’ve talked with members of the City-County Council and legislature who simply cannot see their own conflicts. It’s easy to convince yourself that what’s good for your law firm, or industry, is good for the city or state as a whole–that you are actually adding value because of your specialized knowledge. But human nature being what it is, it is a very rare individual who can shake off the attitudes and interests of their daily experience and look objectively at proposed rules that will affect his own livelihood.

The examples Tully describes are well beyond the pale. Unfortunately, these conflicts are not new to the Indiana landscape. Whatever corrective measures may come from the first article, or others in the promised series of revelations, it would be comforting if we dealt with the problem this time around by thoroughly revising the system that continues to produce these ethical lapses.

It’s long past time to impose a meaningful code of ethics on the Indiana General Assembly. One that might remind our lawmakers that they are supposed to be acting in the public interest–not their self-interest.

Comments