Voice For Liberty

Category: Kansas state government

  • More problems with Kansas judicial selection noted

    Kansas University law professor Stephen J. Ware has researched and written extensively about the processes that states use to select justices to their high courts. Kansas, as it turns out, is at the extreme end of the spectrum of the methods the states use. My post Kansas is at the undemocratic extreme in judicial selection describes Ware’s recent research on this topic. The title of the post should give a hint as to the nature of Kansas’ system, which gives our state’s lawyers outsize influence in the process. Here’s Ware’s summary:

    But however one assesses this issue, one’s assessment does not alter the conclusion that the process lacks democratic legitimacy. Giving a member of the bar far more power in selecting the supreme court than her fellow citizens have is unacceptable in a democracy, regardless of whether this inequality results in a more liberal or conservative court than would result from a more democratic selection process.

    Now a legal writer has made an argument that our state’s process may be unconstitutional. The article “Does the Kansas Supreme Court Selection Process Violate the One Person, One Vote Doctrine?” by Joshua Ney, published in the Fall 2009 Washburn Law Journal has this as a conclusion:

    The 1958 Amendment to the Kansas Constitution granting the state bar the power to elect a majority of the Nominating Commission has since come into conflict with the requirements of the one person, one vote doctrine. The notable exceptions to the one person, one vote doctrine do not apply to the bar election of Nominating Commission members. Kansas’s use of a nominating commission does not per se create a constitutional conflict. Rather, the conflict lies in electing its Nominating Commission in a manner that gives one citizen’s vote substantially more weight than another citizen’s vote. Because Kansas currently grants the state bar over two-hundred times more voting power than non-lawyer citizens in the election of members to the Nominating Commission, the state’s system stands in violation of the one person, one vote doctrine. Moreover, any state that currently gives its bar the power to elect or appoint members of the state judicial nominating commission is vulnerable to having its supreme court selection process struck down as a violation of the one person, one vote doctrine. Kansas should immediately adopt one of the many constitutional alternatives to the current system or risk a potentially successful challenge to the system in court.

    Ney’s quote from William “Boss” Tweed, political boss of Tammany Hall, summarizes our problem accurately and compactly: “I don’t care who does the electing so long as I do the nominating.”

    Citizens who want to see reform in the way Kansas selects justices: what should they do? For now, my best advice is to contact their Kansas representatives and senators. Reform requires an amendment to the Kansas Constitution. That requires a two-thirds vote in both the House and the Senate, and then a majority vote of the people. The governor has no direct role in the process, except to help set the tone of the debate and apply persuasion to legislators.

  • Kansas legislative duo to update Pachyderms

    Kansas Representatives Don Myers (Republican from Derby) and Pete DeGraaf (Republican from Mulvane) will jointly present “An update on the financial status of Kansas” at the Wichita Pachyderm Club on Friday December 11.

    All are welcome to attend Pachyderm club meetings. The program costs $10, which includes a delicious buffet lunch including salad, soup, two main dishes, and ice tea and coffee. The meeting starts at 11:45 am.

    The Wichita Petroleum Club is on the ninth floor of the Bank of America Building at 100 N. Broadway (north side of Douglas between Topeka and Broadway) in Wichita, Kansas (click for a map and directions). Park in the garage just across Broadway and use the sky walk to enter the Bank of America building. Bring your parking garage ticket to be stamped and your parking fee will be only $1.00. There is usually some metered and free street parking nearby.

  • Play Powerball for the good of the Kansas budget?

    In an explanation presented to the Kansas House Appropriations Committee of how the Kansas state budget was balanced by Governor Mark Parkinson Monday, there’s a line item “Powerball income tax windfall.” The amount is $3.1 million, the result of a Kansan having won the multi-state jackpot not long ago.

    That this item had its own line is evidence of just how hard it is to balance the budget in the face of declining revenues. I’m surprised no one on the committee suggested we all buy Powerball tickets to help the Kansas economy.

    One of the ways the budget was balanced is to shirt ARRA (the federal stimulus) funds from next year to this year. Previously, Kansas had planned to use about half of the ARRA money this year, and half next. After Monday’s action, we’re now spending about two-thirds of it this year, with one-third left for next year, according to Kansas Budget Director Duane Goossen.

  • Wiggans, drug profiteer, in race to be Kansas governor

    I’m waiting for this headline to pop up in Kansas newspapers or blogs.

    How else will Kansas leftists be able to describe Tom Wiggans, the newly announced candidate for the Democratic party nomination for Kansas governor?

    Described by the Associated Press as “a former pharmaceutical company executive” — wait, doesn’t that describe a person who profits from sick people? Just the type of person Democrats love to demonize?

    While we wait to see if Kansas newspapers and leftist blogs make this connection, read Kansas Watchdog’s reporting on his political contributions.

    Also, according to Forbes, Wiggans earned $323,579 in 2008 from serving on the boards of three drug and biotechnology companies.

    It will also be interesting to see how Kansas leftists react to Wiggan’s association with the Hoover Institution, described by Wikipedia as “influential in the American conservative and libertarian movements.” Wiggans was a member of its Board of Overseers.

    Hoover is intellectual host to conservative and libertarian thought leaders like Richard A. Epstein, Chester E. Finn Jr., Eric Hanushek, Caroline M. Hoxby, Tibor R. Machan, Condoleezza Rice, Russell Roberts, and Shelby Steele.

    Hoover is also home to a personal hero of mine, Thomas Sowell, who is Rose and Milton Friedman Senior Fellow on Public Policy. Friedman — one of the giants of the modern libertarian movement, although not loved by all — was senior research fellow at the Hoover Institution from 1977 to 2006.

  • ‘Efficiency Kansas’ introduced in Wichita

    At stops in Topeka and Wichita, Kansas officials introduced the Efficiency Kansas loan program.

    This is a program funded by the American Recovery and Reinvestment Act of 2009, better known as the stimulus bill. In Kansas, the State Energy Office, a subsidiary of the Kansas Corporation Commission, was awarded $38 million to foster energy efficiency for homes and businesses in Kansas. That office will manage the program.

    Kansas Treasurer Dennis McKinney was in Wichita to introduce the program and help give tours of a demonstration home in west Wichita. In his remarks he said that the program engages private sector forces so that the program runs effectively and efficiently.

    The program starts when a homeowner or business owner contacts a participating lender or utility company. The customer selects an energy auditor from a list of those qualified to work in the program, and the energy audit is performed. The result is a plan. Then, the customer seeks bids from contractors based on the plan. If the State Energy Office approves, work can start.

    Homes can receive up to $20,000 in improvements, while small businesses can receive up to $30,000.

    In this program, it is participating banks or utility companies, not the state, that make the loans and it is they who bear the risk of credit loss. The loans are fixed-rate, up to 15 years term, with an interest rate of not more than 4%. The State Energy Office provides rebates to lenders to cover $250 of loan origination fees.

    For the demonstration house in Wichita, a three bedroom ranch-style house of 1,440 square feet built in 1963, the cost of the recommended improvements is $2,922. Estimated monthly energy savings are $35, and the monthly payment on the loan is $24. The demonstration house in Topeka required $7,617 of work, with monthly savings estimated at $89, and payment of $57.

    Analysis

    In the press release, Kansas Governor Mark Parkinson said “this program will help save jobs and put more Kansans back to work.” Many would disagree with this assessment, as the program is paid for with borrowed money that must be paid back at some later date. The taxes necessary to repay this borrowing will reduce jobs in the future.

    I asked McKinney that if these energy efficiency investment are wise economically, why can’t we let people make them on their own rather than having the federal and state government involved. His answer was that the program makes loans available at 4% interest rather than 8%, and the program would gain the attention of entrepreneurs to help get more homes upgraded.

    As with many government programs, this essentially boils down to a subsidy. The program participants will be able to borrow money at a below-market interest rate.

    While some people might feel it is worthwhile for the government to subsidize low or modest income homeowners, the owners of the Wichita home probably don’t fall into that category. According to the Sedgwick County Treasurer, the house has an appraised value of $99,800. There was a large flat-panel television among its furnishings. Should Americans of all income levels pay taxes so that this family can save a few dollars a month on a loan?

    Further, although the program is touted as being low cost to the state, the state pays $250 for each loan to the lending bank. The first 1,000 participants will receive $350 to help pay for the energy audit.

    Prior to this program, the State Energy Office had just five employees and a budget of $500,000. Now the office’s website lists ten employees. While the costs of this program are paid for by the federal government, this should be of little comfort to taxpayers.

    Surprisingly, there was no mention of this program’s role to potentially reducing carbon emissions.

  • Rep. Steve Brunk on Kansas taxes and spending

    Speaking to the Wichita Pachyderm Club on Friday, Kansas Representative Steve Brunk (Republican from Bel Aire) addressed taxation and spending in Kansas government.

    Brunk said “We need more taxpayers, not more and higher taxes.” In evaluating legislation, he said he asks these questions: Does this help the state of Kansas bring companies to the state, and does it offer encouragement to companies already here?

    Kansas is usually just about in the middle of all states in ability to attract companies to the state. We should be able to better than that, and a way to do better is to reform our taxing environment.

    Some of our taxes should go away. The franchise tax is in the process of being phased out. That money is now available to make capital investment and create more jobs.

    The corporate income tax should be eliminated, he said. The death tax or inheritance tax is inherently unfair, as people should be able to pass their estates to heirs without being tax.

    Also, the capital gains tax is punitive, he said. It should be reduced or eliminated.

    “We need a low and predictable tax base, so that we can attract businesses to Kansas to provide jobs without having to offer special and unique incentives.”

    When revenues have increased in Kansas, we spent it rather than setting some aside in a rainy day fund. When revenues have not increased as quickly, it causes problems with the budget. Today, we’re probably facing a period of slow growth.

    Brunk showed a chart of Kansas spending as compared to the inflation rate. Spending increased much faster, almost four times faster, he said, adding that this is unsustainable.

    So Brunk has proposed what he termed a “speed limit.”

    The spending problem is due to Republicans and Democrats alike, although Brunk said Republicans are amateurs at spending compared to Democrats. Without Republican help, budgets could be passed. There is a core of about 55 or so conservatives in the Kansas House of Representatives. The rest of the House Republicans are willing to spend along with the Democrats.

    To this end, Brunk has proposed a constitutional amendment that he calls the REAL Act: Revenue and Expenditure and Assessment Limitations.

    One thing this act does, he says, is to limit the rate of growth of spending to the rate of inflation. This would force the state to prioritize what it spends on, and to take a look at finding excess spending. Existing programs would be reviewed.

    The REAL act would also limit the ability to increase taxes or start new taxes by requiring a two-thirds majority in the legislature.

    The REAL act also provides for a rainy day fund, sometimes called a budget stabilization fund. The money in this fund could be used only to stabilize the budget when revenue drops below the rate of inflation growth. After this fund is full, an emergency fund would be created and funded for dealing with disasters such as the Greensburg tornado or the southeast Kansas floods.

    We also need to avoid download state spending to counties, he said. There could be no mandates with accompanying funding.

    Turning to property taxes, Brunk mentioned Proposition K, an effort to stabilize property taxes. Introduced in this year’s legislative session, the measure was referred to a tax subcommittee that didn’t do much to advance the proposal. Based on feedback and concerns, he’s going to adjust Proposition K and introduce it again.

    Responding to a question from the audience, Brunk said that he conceptually likes the idea of a Fair Tax, a tax based on consumption rather than income or property ownership. Later, someone else asked, in jest, if an exemption for cigars could be part of a consumption tax law.

    Answering another question, Brunk said that a problem with Kansas budgeting is that we have “add-on” budgeting instead of zero-based budgeting. Each year agencies must justify not their entire budget, but only the additional amount that they’re asking for this year.

    Analysis

    The REAL Act, as described on The Kansas Real Act page, is much like the Taxpayer Bill of Rights proposals, in that it limits spending to inflation plus population growth. These measures are universally and vigorously attacked by government spending advocates such as teachers unions and public employee unions, as they, amongst others, live off of ever-increasing government spending.

    In my opinion, the components of the REAL act — limits on tax increases, the requirement of a supermajority to increase taxes, and a rainy day fund — are eminently sensible. Whether these measures can be passed as a package as a constitutional amendment is difficult to answer. In Kansas, such amendments require passage by two-thirds of the Kansas House and Senate, and then by a majority vote of the people. Action by the governor is not required, not can the governor block an amendment, except through persuasion of the legislature or the people.

    An amendment to the constitution is required for any laws of this type to be truly effective. Kansas law already requires that the state hold ending balances of 7.5% in its funds. But each year the legislature decides to waive or ignore this law. That can’t be done, to my knowledge, to measures that exist in the constitution. Similarly, the Kansas Supreme Court can’t overrule the constitution and order the legislature to take action, as it has done with K-12 school spending.

    The difficulty in passing clear and coherent laws was illustrated by the question about the exemption for cigars. Although proposed in jest, there will be constituencies that will be quite serious about exemptions to nearly any law that is passed.

  • Kansas protects its gambling interests

    At one time Kansas prohibited its citizens from gambling because it was thought to be immoral. That attitude started to change when Kansas allowed a lottery. Now that the state owns casinos — that’s right, in Kansas the state owns the casinos that aren’t Indian casinos — thoughts of morality have been swept aside. Or, at least, we’ve decided that the potential revenue inflows to state coffers is more important than the moral health of Kansans.

    Now that Kansas is in the business of gambling, it’s working to protect the monopoly it granted itself. In Wichita, entrepreneurs sought to get around gambling laws by offering a variation of poker that they argued was legal. A judge disagreed, and the game was shut down, preserving the monopoly of the state in gambling.

    Having settled the question as to whether gambling is moral, we now see that this case is all about the money. The state doesn’t like competitors.

    The state is willing to look the other way on smoking too, when it comes to the potential of earning more revenue from its casinos. Earlier this year the Kansas senate considered a state-wide smoking ban that allowed smoking in its casinos.

    Is this another example of Kansas hypocrisy: smoking should not be allowed, except where it might reduce the state’s gambling revenue?

  • KPERS report sparks backlash from Wichita SEIU

    Recently Kansas University professor Art Hall, along with a co-author, published a study explaining the funding crisis in KPERS, the Kansas Public Employee Retirement system. In summary, the report states: “The key finding of the study is that the KPERS system will not be in actuarial balance over the thirty year amortization period set in GASB standards. This means that KPERS will continue to accumulate unfunded liabilities for the foreseeable future. It is highly likely that KPERS will continue to impose a heavy tax burden on future generations.”

    This finding has raised quite a protest from those who expect to receive a benefit from KPERS in retirement. It may be the school districts and teachers that are protesting the loudest. What’s really strange is that they’re protesting what appear to be facts based on solid research.

    An example of the blowback to this report is when Harold Schlechtweg, business representative of Service Employees International Union Local (SEIU) 513 in Wichita, addressed the board of USD 259, the Wichita public school district regarding the KPERS report. He advocated for raising taxes earlier this year in front of the Wichita City Council so that employees he represents wouldn’t lose their jobs to less expensive outsourcing.

    To the school board, he said that when “people make a political intervention — and that’s exactly what that report was — I think that some requirement should be placed on them that they consider the impact of that.”

    This is a puzzling statement. Is Schlechtweg asking for some sort of censorship or approval to be obtained before think tanks or advocacy groups publish their articles? I don’t think he would consent to this requirement being placed on himself, as many of his arguments wouldn’t pass any sort of sanity test.

    For example, in a Wichita Eagle op-ed earlier this year, Schlechtweg said that if wages and benefits paid to Wichita parks workers were cut, the community would suffer. Let’s remind him who pays the wages and benefits he tried to protect: the taxpayers of the city of Wichita. The interests of the workers he represents are in direct opposition to that of the Wichita taxpayer.

    Schlechtweg (and others) object to use of the word bankrupt, but if that accurately describes the financial condition of KPERS, why should we gloss over it?

    He also mentioned the large losses in 401k plans. That’s not true for everyone. If a person’s funds were invested in, say, money market funds, there would have been no losses.

    Employing the tactics often used by the left when faced with issues not favorable to their cause, Schlechtweg attacks personalities. He slams the authors of the study as “not friends of public education,” naming Americans for Prosperity, the tea party groups, and the Kochs specifically.

    He praised the Kansas National Education Association or KNEA, the teachers union), for their work in providing information on this issue. Mr. Schlechtweg, if you’re going to discount the arguments of certain advocacy groups, can we agree that the teachers union is one of the most single-sided, uncompromising, and untruthful advocacy groups?

    And while bashing the political motives of others, doesn’t Schlechtweg realize that the KNEA is all about politics, if about anything at all?

    The fix for KPERS, he said, is to fund it. A problem, of course, is that taxes will likely have to be raised, and people don’t like to pay taxes. But to advocates like Schlechtweg and the SEIU, that’s not a problem. The taxpayer, it seems, is both their source of funds and focus of their scorn.

  • Kansas is at the undemocratic extreme in judicial selection

    Kansas University law professor Stephen J. Ware has extensively researched and written on the method of judicial selection in the United States. His recent paper The Bar’s Extraordinarily Powerful Role in Selecting the Kansas Supreme Court again lets us know that in Kansas, a select group of lawyers has tremendous control over the nominating process. It’s a process that desperately needs reform, despite the effort that Kansas lawyers spend defending their elite privileges and powers in this regard.

    The first part of the paper is captioned “Kansas is extreme — no other state gives the bar as much power.” In detail, Ware describes the three basic ways that the states select supreme court justices. Kansas is unique among the states: “In sum, Kansas is the only state that allows the bar to select a majority of ‘a nominating commission that has the power to ensure that one of its initial nominees becomes a justice.’”

    This system gives lawyers a great deal of power in selecting supreme court justices: “In this extremely undemocratic system, a lawyer’s vote is not only worth more than any other citizen’s vote; it is worth over 200 times more.”

    As we might imagine, lawyers vigorously defend this system using a variety of arguments. Here’s one:

    The problem with bar-power extremism in judicial selection is that it rests on a one-sided view of the role of a judge. It emphasizes the judge’s role as legal technician at the expense of the judge’s role as lawmaker. Of course, judging does involve the narrow, lawyerly task of applying to the facts of a case the law made by someone other than the judge (e.g., a legislature). But judging also involves the exercise of discretion. Within the bounds of this discretion, the judge makes law.

    Ware continues: “Let us frankly acknowledge that judges are not merely technicians; they are also lawmakers.” This is particularly important when considering the selection of supreme court justices, as they have the most discretion in making law.

    Based on analysis of political contributions of the lawyer members of the nominating commission, they’re more liberal than the average Kansan. That’s in spite of the fact that more are registered as Republicans: “Interestingly, of the twenty-two lawyer-commissioners studied, seven were registered to vote as Democrats, while twelve were registered as Republicans. In other words, the Nominating Commission’s Democratic lawyers were more likely than its Republican lawyers to contribute to their party’s federal candidates. And, in fact, some of the Republican lawyers made more contributions to the other party’s federal candidates, while none of the Democratic lawyers did this.”

    In summary, Ware writes:

    But however one assesses this issue, one’s assessment does not alter the conclusion that the process lacks democratic legitimacy. Giving a member of the bar far more power in selecting the supreme court than her fellow citizens have is unacceptable in a democracy, regardless of whether this inequality results in a more liberal or conservative court than would result from a more democratic selection process.

    What about the retention elections that Kansas supreme court justices must face? None have ever lost. Across the country, judges are retained 98.9% of the time.

    We need reform. Just read the conclusion, where Ware writes: “In supreme court selection, the bar has more power in Kansas than in any other state. This extraordinary bar power gives Kansas the most elitist and least democratic supreme court selection system in the country.”

    You can read the entire paper at The Bar’s Extraordinarily Powerful Role in Selecting the Kansas Supreme Court. Previous coverage of this issue is at Kansas must change its judicial selection method and Kansas has the appearance, without the reality, of judicial accountability.