May 18, 2013

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Report on Speaker Lockhart’s Comments at Utah State University [Contributor]

May 15, 2013 by Leave a Comment

BluePrint_RhettWilkinson_ustRhett Wilkinson is a lead project manager for The Exoro Group, a public affairs firm in Salt Lake City. A senior in journalism and political science at Utah State University, he has previously interned in Utah Congressional and Gubernatorial offices and for the Deseret News. Opinions are his own.

 

Utah Speaker of the House Becky Lockhart, the first woman in the position in the state’s history, visited Utah State University in late April. She was hosted by the USU Institute of Government and Politics.  Here is a brief summary overview of the topics she discussed at my alma mater.

Using an example of how “cool” her mother thought she was for owning a VCR, Lockhart outlined the meticulous nature of policy-making in spite of rapid communication as a result of the growth of technology.  Lockhart suggested that political opinions of the Utah Republican Party’s leading policy experts and lawmakers are not as homogeneous as some may think—leading USU’s College of Humanities and Social Sciences dean to wonder if the structure of the state’s government should be fundamentally reformed.

Renegade Republicans?

Lockhart commented on the political diversity of the Utah GOP when asked about the challenges of working with a heavily Republican state legislature (61 Republicans and 14 Democrats in the State House, and 24 Republicans and 5 Democrats in the State Senate). It consists of “classic Republicans” (“which in Utah is pretty conservative,” she said), the “libertarian wing,” the “right-wing type,” and then “people who run as Republicans, because Republicans get elected here who are probably Democrats philosophically,” Lockhart said.

That diversity is positive, she said.

“If they are the same, that’s more of a challenge,” Lockhart said, adding that Utah is a “melting pot” for business, education and other enterprises. “Knowing the challenges we deal with is more healthy than thinking otherwise.”

Lockhart was introduced by USU Dean John Allen. In comments after Lockhart spoke, Allen said that as during his time as a University of Nebraska administrator he collaborated with members of the non-bicameral Nebraska state legislature, the only such kind in the nation. The political makeup of Utah that fosters false assumptions about its homogeneity encourages an intriguing question of looking at Nebraska’s model, he said.

Classroom clarification

Former Associated Students of Utah State University President Erik Mikkelsen started the question-and-answer period by remarking that while the state’s strong economy resulted from a strong educational system, that same body is now one of the worst in the nation. Prefacing his question that the issue must be addressed through funding and innovation, he asked Lockhart how the state plans to continue to help. He suggested Prosperity 2020.

“It’s a big, audacious goal,” Lockhart replied. “To be honest, I don’t think we can make it. Maybe by 2028.”

She also expressed displeasure with constituents who ask her what she will do about Common Core.

“We have an independently elected school board and locally elected school boards,” she said. “I say, if you don’t like the decisions they are making, don’t come in and ask me to override it. Change the body—take responsibility.”

Immigration ills

Another question was about how elements of party politicking affects immigration policy. A bipartisan group of senators recently proposed federal immigration legislation.

Lockhart said that following years of debate, she is now leaning just to see a resolution happen—especially after the Supreme Court has stated in recent years that it is a job for the federal government. Her own daughter has a friend who learned she was in the U.S. illegally after applying for college.

“She thinks she’s American, but she’s not—at least not officially,” she said. “So until we have enough people in policy power and formulate solutions, this will be a continual problem.

“We might be getting there.”

 

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Appointing versus Electing the Attorney General

March 19, 2013 by Leave a Comment

Senator wants Utah to look at appointing attorney general The Salt Lake TribuneTo avoid the influence of cash on Utah’s chief law enforcement office, Senator Todd Weiler wants the legislature to look into amending the Utah  constitution to allow for an appointed attorney general. With Utah’s long history of flawed AGs, perhaps it’s an idea we should take seriously.

 

During the Utah Legislative Session, ended last week, members of the legislature were largely taciturn on the Swallow scandal, preferring to reserve judgement until the FBI investigation into Swallow wraps and the facts are clear. Regardless, the legislature passed two pieces of legislation addressing, if indirectly, the Swallow scandal.

The first, Senate Bill 83 sponsored by Senator Todd Weiler, addressed employees of the Utah Attorney General’s office accepting outside consulting work–as Swallow has said he did for a Nevada cement project.

The second bill, pushed through on the last day of the session, though with none of the opposition that other last minutes bills have seen in the past, was Senator Peter Knudson’s Senate Bill 289. It aimed to move investigatory power from the Attorney General to the Lieutenant Governor when elections complaints were filed against the AG. While prompted by the Alliance for a Better Utah complaint about Swallow to the Lieutenant Governor’s office, both legislators and staffers went to lengths to point out that the bill was to remove a weakness in the law, not target Swallow.ada cement project after appointment by then Attorney General Mark Shurtleff.

Appointment by Supreme Court or Governor is a good idea

money-and-justice-scalesEven with these two changes in the law–one putting the same restrictions on political appointees as exist on state employees and the other preventing the AG from investigating himself–Weiler believes further changes may be necessary to avoid a repeat of the same problems.

“The discussion is: As an elected official in a statewide race, we’re asking these candidates to run around and ask people for political donations,” Weiler said to the Salt Lake Tribune. “If someone was appointed, we’d take that entirely out of the process. We wouldn’t have the chief law enforcement officer asking people for money.”

In an 2011 proposal for the same, State Senator Steve Urquhart  said that it could get better attorneys into the AG’s office:

“[...] maybe we would get a better-qualified attorney than we tend to get and we might get an attorney with an approach that is consistently on the merits of the issues rather than on the basis of politics or something else.”

Currently, only seven states have appointed attorney generals. The Salt Lake Tribune lists those states as Alaska, Hawaii, Maine, New Hampshire, New Jersey, Tennessee and Wyoming, citing the National Association of Attorney Generals.

6TXZ_Sup_Ct_Lg

In Tennessee, the state Supreme Court appoints the attorney general, which I find particularly interesting, especially given how Utah’s justices join the bench. Unlike many states, Utah’s Supreme Court justices are not elected but serve ten-year renewable terms after appointment by the governor and confirmation by the state senate. As result, Utah’s Supreme Court has avoided much of the politicization that plagues other states. Not beholden to campaign donations, Utah tends to have justices who are better known for the legal acumen than their political connections.

This kind of process can prove useful for an AG appointment in two ways:

  1. Appointment by the Governor: similar to selection for the Utah Supreme Court, selection of the AG would be based on merit and subject to an “advise and consent” process by the state senate. The process could be further depoliticized by including a vetting process by the Utah Bar Association.
  2. Appointment by the Supreme Court: already less beholden by virtue of their appointment and independence as a separate branch of government, an appointment by the Supreme Court would carry additional levels of review and detachment from the political process, allowing selection of a person without need of review of political bona fides.

There’s no way that politics will be completely removed from the process, but an appointment–either by the governor with consent of the senate or by the Supreme Court–would remove the politics from the Utah Attorney General’s office.

 Swallow opposes, makes “Bandwagon” argument

SwallowNot surprisingly, Swallow, with nothing to fall back upon if he loses his job, does not support the idea. To the Salt Lake Tribune

“The attorney general is the guardian of the public interest and should be independent and provide legal advice based on the law instead of political pressure,” Swallow said. “Utah is one of 43 states where the attorney general is elected by popular vote and this process ensures the attorney general is the lawyer for all Utah citizens.”

 

In case you missed that, Swallow implied that there’s less political pressure on someone who needs to raise hundreds of thousands of dollars to get elected (as he did) than there is on someone who is appointed. (Swallow also wins Logical Fallacy of the Day with his “Bandwagon” appeal to popularity as a validation of his position).

Not the first time…

220px-Mark_ShurtleffAs I noted earlier, this isn’t the first time that someone has suggested we look at moving to appointment of the AG. Given Shurtleff’s history.  Urquhart proposed looking into the idea in 2011.

“I also think it’s much cleaner if the guy making prosecutorial decisions isn’t out soliciting money from people who could be impacted by those decisions,” Urquhart said in a Salt Lake Tribune article at the time.

Then Attorney General Mark Shurtleff opposed the idea, touting the independence that comes with election. Of course, he had his own problems. During his term, Shurtleff was regularly pilloried by the City Weekly for receiving contributions from questionable donors, including the same ones who helped get Swallow elected and some of which are now under federal investigation.

Paul Rolly has also in his column told a short history of Utah’s attorney generals, and few escape some kind of scandal. With Utah’s history, perhaps it is time we change how we think about the office of the attorney general. It’s cliche to talk about lawyers,politicians, sharks, snakes and leeches in the same breath, but do we need to add to the taint of corruption and make the cliche real?

In 1998, the Utah Supreme Court was moved into...

In 1998, the Utah Supreme Court was moved into the Scott M. Matheson Courthouse building. (Photo credit: Wikipedia)

I like Weiler’s request, echoing Urquhart’s suggestion in years past, that the legislature look into changing the Utah constitution to provide for a more independent attorney general uncorrupted by the taint of political contributions. Utahns should be able to look to their attorney general as their advocate, regardless of whether they have been able to donate to his campaign.

Swallow has been accused by three businessmen of soliciting donations in return for protection. Regardless of the truth of the accusations, changing the nature of the selection of the attorney general would remove the possibility that prosecutorial decisions are tainted by money.

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A Special Counsel to Investigate Swallow?

March 14, 2013 by 1 Comment

Utah Legislature set to move authority for a special counsel to LG

Utah CapitolWith the last day of the Utah Legislative Session upon us, Utah’s representatives are set to finally take action to directly investigate the allegation against Utah Attorney General John Swallow.

In Senate Bill 289, introduced by Senator Pete Knudson, the legislature would grant authority to the Lieutenant Governor to appoint special counsel to investigate elections offenses if the Attorney General has a conflict of interest in a complaint.   Under section 4 of the bill, the authority granted to the Lieutenant Governor would be retroactive to March 1, 2013 and would include the complaint filed by Crystal Young-Otterstrom and Maryann Martindale of Alliance for a Better Utah, a left leaning activist group.

Normally, complaints would go directly to the Attorney General’s office and while the Lieutenant Governor’s office has not yet completed its review of the complaint, addressing the conflict in the law during the session is prudent.

“We have no indication from the lieutenant governor about where the complaint is in the process,” said House Speaker Becky Lockhart to the Salt Lake Tribune. “All we know is he approached us and mentioned this complication in the statute that we were unaware of.”

Up to Speed on Swallow

Swallow

The Salt Lake Tribune sums up the complaint that led to this change:

The complaint includes an allegation that Swallow attempted to conceal his interest in P-Solutions and payments from Richard Rawle, the late founder of the payday lender Check City.

When Swallow filed to run for office on March 9, 2012, he did not list several companies in which he was an officer at the time. He filed an amended return on March 15, the same day he took his name off of several companies, transferring his interests to his wife.

That includes P-Solutions, a company that received $23,500 from Rawle for consulting work on a Nevada limestone quarry, part of a planned cement project.

The money Swallow was paid came from funds St. George business owner Jeremy Johnson paid to Rawle. Swallow had put Johnson in touch with Rawle, Swallow and Rawle insist, to hire lobbyists to help him avoid a Federal Trade Commission lawsuit. Johnson said he and Rawle arranged to pay Senate Majority Leader Harry Reid, D-Nev., $600,000, which Johnson has called a bribe.

Reid has denied any knowledge of Johnson’s case.

Swallow’s conduct is the subject of a federal investigation and prompted calls for ethics reform in the Legislature. Democrats have also asked the governor to appoint a special investigator to determine if Swallow violated any state laws.

This is not the first time that Swallow has run afoul of the law, though it is the first time a federal investigation has been announced. You can learn more about Swallow’s colored past here, here, and here. They include accounts of Swallow offering access to his office in return for donations, fluffing claims about his involvement in Obamacare litigation, and alleged investigation by the FBI for interference in municipal contracting.

 

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Behold Utah’s Bow Tie Caucus

March 11, 2013 by Leave a Comment

 

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Don’t move the state prison…yet. [Contributor]

March 8, 2013 by 1 Comment

220px-Utah_State_Prison_Wasatch_FacilityRhett Wilkinson is a senior at Utah State University. He is studying journalism and political science. The opinions expressed are his own.

I felt hollowed last weekend as I watched James Bond find himself compromised, within killing range of the vengeful Silva.

It happened after the ocean blue-eyed hero made a robust attempt to reach a chapel in lonely Scottish field, seeking to save a boss, the target of Silva’s angst, who had displayed even maternal compassion for Bond.

His problem (beyond grenades being hurdled at him and torrents of fire pouring towards him from a helicopter): he reached a pond that was hardly frozen over, as he would learn moments after starting to run across it. Consequently, Agent 007 found himself standing in the middle of the body, tangled with one of Silva’s minions and the vengeful one himself standing along the pond’s shores.

Because of the fragility of the ice, however, Bond was also saved by it, shooting the material and allowing himself to sink deeply before proving to recover.

When it comes to moving the Utah State Prison in Draper, Utah Sen. Lyle Hillyard knows the state might not be as fortunate as the long-survived action man.

“When we step out on this ice, I want to see how deep the water is,” he said late last month, adding that he wonders how the state would handle the proposed financing options falling $100 million short in seeking to change the 62-year-old facility from its 690-acre site.

Seconds after Silva placed a revolver to the temple of his trusted directive, Bond sprung into the chapel spearing Silva with a knife and ending a chase that could have ended a half-dozen times.

Utah, however, doesn’t have that many options. It can’t gain more economic freedom if it is willing to sanction the transfer of a structure with a transfer price estimated at $550 million to $600 million.

We ought to pay attention to Hillyard’s insight. The Logan Republican has said that 33 years in the Legislature tells him the estimated $17 million to $20 million in annual savings from operating a new prison won’t happen. It’s not the right time, either: since 2005, the prison would have cost taxpayers only more than $300 million—the difference between the price of a new prison and the value of the land then. Since then, property values have dropped dramatically.

The prison’s six-month projected time frame would also cause problems for local government in terms of land-use planning and zoning, numerous legislators have attested.

The Senate also removed from a bill a provision that would allow the state to capture half of all the local property and sales taxes generated from redevelopment of the current prison to help finance a new facility. State Senator Scott Jenkins said that was placed in the bill should that money be needed.

The bill also would not preclude the state from asking local tax entities — cities, counties and school districts — to commit some of their anticipated tax revenues to construct a new prison.

Are those agencies willing to give that up for a prison? A local community isn’t likely to prioritize the relocation of the prison and how it’s financed, other than they can have new ground to develop.

The question is also begged about how much taxpayers and, mostly, developers would gain from scrapping the 390 acres in Draper now occupied by the prison and building roads, homes, shopping centers, movie complexes and all the other trappings of southern Salt Lake Valley cities.

It invites some serious human problems. Would volunteers or family members have the time, money and transportation to visit a distant prison? What about taking inmates to the University Hospital and its affiliates for health care or getting them to court?

If it’s approved, many entities should also expect to be in a long haul. Former Corrections Director Tom Patterson said during last year’s legislature that it would take 10 to 15 years to work out the economics of building a new prison.

On any account, isn’t this all moving a bit fast? As House Speaker Becky Lockhart first suggested, the Legislature truly ought to wait to pass legislation dealing with whether to move the prison from its Draper location. A special session could be held for a decision that could prove so consequential, rather than rushing the decision in a matter of a handful of days in which the state legislature is still in session.

That’s especially optimal now that the Senate has passed a fourth version of SB72, creating an 11-member committee to delve into the issues surrounding building a new prison and disposing of the 600-plus acres where the current prison stands. It allows interested parties to submit proposals not only on rebuilding the prison in a new location, but operating the prison.

Yes, at least two-thirds of the cost may be covered in the savings from operating a state-of-the-art prison and the sale of the current property. It may provide $20 billion in economic development to the state along with 30,000 to 40,000 jobs.

But in a state that prides itself on its self-sustainability and innovation, the project should hinge on its ability to be self-funding through savings rather than at least the current proposed tax revenue. Bond may have, against all odds, found a way through a crack in the ice only after avoiding a certain downfall. With its economic strength, Utah’s foundation doesn’t need this type of crack—especially with what’s currently waiting on the shore.

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Support for Bell integrity resonates in contrast with Swallow

February 25, 2013 by Leave a Comment

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It says a lot about Lt. Gov. Greg Bell that so many people have stepped up to defend him. I count myself among those that believe in his good will and integrity.

The outpouring of support, though, is a stark contrast from near absence of any advocates for Attorney General John Swallow.

Since the City Weekly article last week reported that an FBI assisted investigation was looking into Bell’s internal audit of a Division of Child and Family Services case, prompted ostensibly by “widely divergent accounts from DCFS and the family,” according to Bell in a statement Friday, supporters on and off of Utah’s Capitol Hill have gone to bat for the former state senator.

Utah state Sen. Todd Weiler, R-Woods Cross, is reported in the Salt Lake Tribune to have criticized any comparison of Bell to  Swallow—also is under investigation by the FBI –because  ”what Greg is accused of doing is trying to help a friend and neighbor.”  And “There’s no money involved, there’s no financial [motive]. It’s a completely different situation,” said Weiler. “Those two situations are entirely different.”

He wasn’t alone is his support of Bell:

  • “If I were to put it in transportation terms, I believe that Greg Bell is so straight, you could use him as a template to stripe the freeways with,” said Sen. Stuart Adams, R-Layton, who succeeded Bell. “I hope there’s no foundation to these allegations.”
  • Senate President Wayne Niederhauser, R-Sandy, said Bell was an “outstanding” senator and “was one of the top people as far as doing the right thing.”
  • And Governor Herbert called his Lt. Gov. “”as honest as the day is long.”‘

Perhaps the most descriptive, and damning to Swallow, quote came from Sen. Lyle Hillyard, R-Logan: “We’ve stood shoulder to shoulder with Greg Bell,” said Sen. Lyle Hillyard, R-Logan. “We don’t have that same relationship with John Swallow.”

Swallow was a member of the Utah state legislature back in the late 1990s and left to make the first of two runs for Congress. Despite his time in the Utah House of Representatives, though, support has not been forthcoming.

Utah CapitolAs I indicated Thursday when the story broke, I very much like Greg Bell. His track record as an honest and sincere individual resonates because of a lifetime acting in integrity and generosity. Serving as Lt. Gov. is a thankless, and mostly powerless, job. In fact, this may be the real rub that has put Bell in trouble. If what he has portrayed in response to the City Weekly story is true–that he was seeking truth and good government in his role as a state official–then it is proof that no good deed goes unpunished.

It’s unfortunate that it requires an investigation, but the public’s faith requires a higher standard of proof.

Asked for comment, Speaker Becky Lockhart said that ”We are consistently trying to respond and do things that would engender trust from the public[...] It appears it may be time to address some things within the executive branch and with constitutional officers.”  With any luck, the investigation into Bell’s audit will vindicate his behavior, and the legislature will clarify the roles and responsibilities of the state wide elected officials to avoid future problems like those encountered by Bell and Swallow.  While Senator Weiler is correct that the two situations are not similar in nature, they do share one thing and that it the potential to lose the public’s trust in their democratically elected government.

 

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Could the proliferation of laws by state legislatures lead to overcriminalization?

February 6, 2013 by 7 Comments

Utah CapitolAre we legislating too much? What might be the effect of passing a law each time we find a problem?

I was struck by a photo posted by Utah state legislator Dan McCay recently. It was a shot of the voting screen in the Utah House of Representatives during a vote on something called “Dumb Ideas.” According to the screen, McCay was the only one voting “Nay.”

https://twitter.com/danmccay/status/298832124109275136

lockhrdGood for him, I say, even if it was something of a staged joke.  It raises an interesting question, though, one echoed by Speaker Becky Lockhart in her opening comments to state legislators last week at the opening of the 2013 Legislative Session. She said

We far too often look for problems where none exist. Can someone here please tell me what definition of “health and public safety” hair braiding falls into? Do we really need to license more so-called professions so as to artificially limit commerce? The free market?

So to you, the members of the House of Representatives, I’m pleading with you to remember this one word for the next 45 days: restraint. Restraint, representatives.  Make sure to take a second and third look at that legislation you are proposing. Do we really need it? It’s been said that we each commit three federal felonies a day whether we know it or not because of the complexity of federal code. [...] Creating so many regulations, complicating so many issues, that the average citizen can’t help but run afoul of the law? Restraint, representatives.

[...]

But we’ve already got almost 1,000 bills being prepared this session. History says we’ll pass somewhere around 400 of them.

Four hundred new laws, folks. That’s a lot. It’ll keep the lawyers in business, but I’m not sure that’s always a good thing.

Lest you think that this is just political grandstanding by Utah’s “Iron Lady,” some are beginning to note that the costs of codification have not been adequately weighed. Dru Stevenson of South Texas College of Law posits that it may actually raise the costs on citizens, not to mention result in overcriminalization of society.  In an  article called “Costs of Codification,” Stevenson argues, according to the abstract, that

Between the Civil War and World War II, every state and the federal government shifted toward codified versions of their statutes. Academia has so far ignored the systemic effects of this dramatic change. For example, the consensus view in the academic literature about rules and standards has been that precise rules present higher enactment costs for legislatures than would general standards, while vague standards present higher information costs for courts and citizens than do rules. Systematic codification – featuring hierarchical format and numbering, topical arrangement, and cross-references – inverts this relationship, lowering transaction costs for legislatures and increasing information costs for courts and citizens, as statutes proliferate. This Article takes a first look at this problem. On the legislative side, codification makes it easier for special interest groups to obtain their desired legislation. It facilitates Coasean bargaining between legislators, and encourages legislative borrowing, which diminishes the “laboratories of democracy” phenomenon. For the courts, codification changes how judges interpret statutes, prompting them to focus more on the meaning of individual words than on the overall policy goals of enactment, and to rely more on external sources, such as legislative history. For both legislators and courts, codification functions as a Hartian rule of recognition, signaling legality for enacted rules. For the citizenry, the reduced legislative costs mean increased legislative output, yielding rapid proliferation of statutes and unmanageable legal information costs. More disturbingly, codification also fosters overcriminalization. While it may not be appropriate to revert to the pre-codified regime now, reexamining the unintended effects of codification can inform present and future choices for our legal system.

In other words, legislators are busy producing more laws than the typical citizen can keep track of (Curtis Haring excepted). The results are laws produced by active and activist minorities that produce benefits for them, but costs for the rest of us.

As Rep. Derek Brown once told me, if you want to know who a law benefits, just follow the money. Much of the time, the benefit is to a small and select group, not the general public.

Jestina Clayton braids the hair of her daughter, Esther Clayton, 5, at her home Monday, April 25, 2011, in Centerville, Utah. Clayton and the the Institute for Justice have filed a federal lawsuit seeking changes to Utah's hair braiding regulations.

Jestina Clayton braids the hair of her daughter, Esther Clayton, 5, at her home Monday, April 25, 2011, in Centerville, Utah. Clayton and the the Institute for Justice have filed a federal lawsuit seeking changes to Utah’s hair braiding regulations.

For example, read more about what I call the “Hair Stylist Industrial Complex,” cited by Lockhart in her speech, for an example of regulation out of control. It takes more time to earn a license to do hair than it does to earn a commercial pilot’s license. Does that make sense? Only if you’re one of the companies that owns the expensive cosmetology schools in Utah.

Another example is the annual requirement for cars to receive safety and emissions inspections. The requirement is misguided in many ways. First, there aren’t enough law enforcement personnel assigned to monitor safety and emissions companies to protect against fraud and to do so would take away police officers needed to protect against the real dangers to society, like as reckless drivers or bank robbers.

Second, fraud is, at least anecdotally, rampant. You bring your car in for a routine safety and emissions inspection and 15 minutes later receive a call from the mechanic that your car also needs X, Y, and Z done to it, none of which have anything to do with safety or emissions and won’t prevent your car from passage. And when you opt not to have the work performed, lo and behold, the inspection fails.

Last, are the inspections really that effective? You be the judge of that…but take a look out the window at the smog clogging Salt Lake Valley before you make a decision.

Does the legislature need to be so actively working to pass laws? I don’t doubt that there are always going to be laws that need to be updated to deal with changes in technology, the economy, population growth, and our culture. But updating laws and creating new ones are not the same thing, and too much of the first puts burdens on society that will only require revision in later years.

To echo Lockhart, let’s have a little restraint, this year and every year.

[h/t The Volokh Conspiracy]

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