Category Archives: legislature

Notes from a quiet street—elections issue

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A week from today is elections day.  We look forward to elections days for the wrong reasons.  Instead of being excited about taking part in the voting process we are excited because it’s the end of that interminable period when our intelligence is assaulted 30 seconds at a time—all the time, it seems, on the television.

—and when our mailboxes are stuffed with mailers of questionable veracity usually provided by people without the courtesy or the courage to admit they paid for the appropriately-named junk mail.

Interestingly, at the end of the day, a lot of people will transfer from being the kind of people they campaigned against to being those people. And what will they do to correct the impressions their voters have about government?

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We have been interested in some of the reasons various groups don’t want us to vote for a new system of drawing legislative districts after the 2020 census.  One side says it would be a mistake to let the state demographer (a person who spends his or her life analyzing population and population trends) draw new districts because they’ll just use statistics and will come up with districts that are more gerrymandered that some districts from the last go-around.  Others worry that letting the demographer draw the districts will weaken the political power of this or that group.   We must have been mistaken all these years because we thought reapportionment dealt with representation rather than power. Silly us.

Could it be that the state demographer won’t care if two legislative incumbents wind up in the same district instead of benefitting from a process that is suspected of protecting incumbents or at least their party majorities?  As far as the demographer coming up with screwball districts, surely that person couldn’t do worse than the creation of the present Fifth Congressional District that I dubbed the “dead lizard” district after the last congressional redistricting (it looks like a dead lizard lying on its back with its feet in the air) that has a former Mayor of Kansas City representing a rural area as far east as Marshall.

What the heck.  We can always change the constitution back to the present system if the legislative districts after the 2020 census are as bad as some interest groups forecast they will be, can’t we?

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Elections almost always have issues created by petition campaigns.  It’s an important freedom we have as citizens to propose laws or to ask for a statewide vote on something the legislature did that raises questions in the minds of enough people that they want citizens to have the final say.  But that freedom can carry with it unintended consequences because petitions don’t go through the refining process of legislative committee hearings, debates, votes, and compromises where possible.   Of course the legislature sometimes fumbles an issue and in both cases ballot issues can be issues financially backed by a special interest if not an individual.

Voters have an often-overlooked responsibility to get out the spy glass and read all the fine print in the election legal notices.  We haven’t talked to very many folks who have done that. So we get what we get and the courts often have to figure out what we got regardless of what we thought we were getting.

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The best part of election day is that all of the junk mail campaign propaganda that goes straight to our waste baskets will be replaced by Christmas catalogues.  We prefer Christmas catalogs for several reasons.  They don’t forecast national or international catastrophes if we buy something offered by another catalog.  They usually are honest about their products (the pictures usually are more accurate than the pictures of the hamburgers at fast foot joints). We have never gotten an L. L. Bean catalogue that suggests the products in a Land’s End catalogue are dangerous to our well-being because of who wears them or because of who the wearers hang out with.

And they don’t proclaim exclusive knowledge of what our “values” are.  The Vermont Country Store is filled with traditional values—soap on a rope, Adams Clove chewing gum, old-fashioned popcorn makers or hand-cranked ice-cream makers, or dresses whose styles are timeless.  Coldwater Creek is for people whose values tend toward the stylish with a little “bling” thrown in.   We have yet to see the Vermont Country Store catalogue that says the Coldwater Creek catalogue is too liberal to be good for us.

In short, the catalogues have a lot more things that we will buy than most of the campaign junk mail that winds up in landfills instead of recycle bins.

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Jefferson City is building a new fire station, replacing an older one in the east end of town (the building will be for sale, by the way, in case you want a unique home, assuming you can get a zoning change).  News of the planned sale of the old fire house brings to mind our old friend Derry Brownfield, who used to occasionally remind us why fire engines are red:

“Because they have eight wheels and four people on them, and four plus eight is 12, and there are 12 inches in a foot, and one foot is a ruler, and Queen Elizabeth was a ruler, and Queen Elizabeth was also a ship, and the ship sailed the seas, and in the seas are fish, and fish have fins, and the Finns fought the Russians, and the Russians are red, and fire trucks are always ‘russian’ around.”

Uh-huh.

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Go vote next Tuesday.  Do yourself and your state a favor and spend the next seven days with your reading glass studying all that fine print.

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Let’s just end it

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Bought something on the internet the other day.  Clicked on an icon that said, “calculate sales tax.”   It was optional, but I clicked on it and was told my purchase would entail $1.79 in sales tax.

Did I regret clicking on that icon?   Not at all.  Just a half-hour earlier I had shopped for a similar item at a brick-and-mortar store and hadn’t seen anything I liked.  If I had bought that item at that store, I would have paid about that much in sales tax anyway.  So by clicking on the internet icon, I—to use a cliché—levelled the playing field.  And I remained a law-abiding citizen.

Please don’t congratulate me for my fairness.  I’m sure I could have found something better to do with that $1.79 than give it to the government which—to use another cliché recently spoken—doesn’t know how to spend my money as well as I do.  I just felt that since the U. S. Supreme Court has said states can collect sales taxes from out-of-state internet vendors I should respect the majority opinion of our highest court.

It has not been a surprise that a member of the legislature quickly has come to my rescue. And his reasoning is no surprise, either.  This legislator considers imposition of the Missouri sales tax on internet purchases made by Missourians to be a sales tax increase and thinks the state needs to provide some relief for such an onerous imposition.

Pardon us, however, if we have trouble understanding how the state collection of sales taxes on internet purchases is a tax increase. But if we accept that line of thinking, why accept the  convoluted solution that goes with it?   We have a far better one and one that without doubt would be much more politically popular.

The idea put forth in the proposed legislation is to cut individual income tax rates even more to offset the internet sales taxes that income taxpayers might soon have to start paying. The idea seems premature because it’s going to take some time to make it legally and mechanically possible to collect those sales taxes. Then it will take some time to get a consistent measurement of how much those collections will be and how Hancock limits affect them.  A little less enthusiasm for immediate remedies to the “problem” of collecting internet sales tax might be advisable because there are other issues to be considered.

Think of all of the Missourians who shop locally and pay the state sales tax.  They are good citizens. They follow the law.  The law says those Missourians will pay sales taxes.  They obey the law.

Where is their outrage or political outrage on their behalf—the good citizens—when other citizens avoid following the law by using the internet to avoid paying the sales tax on the things they buy?   Tax avoidance often lands some people in the pokey—unless its sales tax avoidance by using the internet.  It seems this early legislative proposal legitimizes their tax avoidance.

I’d be willing to bet that many Missourians intentionally avoid paying state sales taxes at felony levels each year.  They keep their $1.79 and are never prosecuted for avoiding the sales tax law.

Let it be clearly stated:  Requiring citizens to pay a tax they have avoided paying is NOT a tax increase.  It is a matter of fairness.  It is requiring the sales tax scofflaws to live by the same standards with which their shop-local fellow citizens live.

Here is an idea that is eminently fairer:  Eliminate the sales tax for everybody.

Clearly, there is within the philosophy that the state should not recognize additional funds by collecting taxes from people who should have been paying them anyway, an implied acknowledgement that adequate funding for state programs and services and bureaucrat salaries is not a matter of concern.

So let’s just level the playing field by eliminating the sales tax on everything.  That puts our local businesses on an equal footing with internet sellers—in fact, it might give them an advantage because they don’t charge shipping fees for local purchasers.

To carry out contemporary political thinking: Eliminating the sales tax will trigger a boom in local retail sales, thus providing more jobs that generate more income taxes that will offset the loss of sales tax revenue.

Let’s not make this thing more complicated than it is.  There’s no reason to start calculating income tax cuts.  Just get rid of all sales taxes, period.   That makes everybody equal.

After all, I could have done a lot of good things with that $1.79 if I hadn’t been honest enough to pay a sales tax.

A tax gift, if we want it

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The U. S. Supreme Court has shown it can change its mind and a new ruling that lets states collect sales taxes from out-of-state internet retailers gives Missouri government a new opportunity as well as some new issues to confront.

All reasons for NOT collecting taxes on out-of-state internet sales seem to have been eliminated by the court’s narrow decision to throw out a 1992 ruling saying out-of-state internet merchants would not have to collect state sales taxes and pay them to the purchaser’s state unless the company had a substantial presence in a state.

That ruling in the early days of internet commerce put brick and mortar businesses in Missouri and other states at a disadvantage and they’ve been aggravated for years that the legislature hasn’t corrected the problem.  The legislature has said its hands have been tied by the 1992 ruling.

The ropes are off now.  We’ll be interested to see if state leaders next year call for passage of a law requiring collection of that sales tax.  There is no doubt the state could use the money.

The legislation will not be easy to write although the court ruling does provide some hints about what will work.

It would not be surprising to hear some voices claim—as they have in the past—that imposing sales taxes on internet merchants would be a tax increase on purchasers and therefore not something the state should lay upon the shoulders of taxpayers who have avoided sales taxes on certain purchases up to now.  We’ll have to see if that lame argument still has any legs in a state that continues to rank in various studies in the lower third of all states for overall tax burden.

The court ruling makes it harder to justify saying, “We’re pro business” while maintaining a sales tax policy that puts our home-town merchants at a sales disadvantage to businesses that exist on our computer screens.

And where do we get the idea that the computers on our desks or in our pockets are not some kind of a “physical presence” in our state? Let’s be honest and admit that the internet long ago became more a physical presence in our lives than Wal-Mart. We don’t have to drive across town to buy something on the internet, after all.

Checking out through Paypal is no different from checking out at the local counter.  The buyer doesn’t  physically stick a credit card into a slot at a cash register with Paypal.  But internet merchants do have a cash register right in front of us—the computer that is a very real physical presence. My brick and mortar house becomes an internet merchant’s physical presence in my town and my state every time I check out with Paypal or some similar system.  (Ohio tried to address the issue with a law saying the use of cookies on consumer’s computers by internet retailers constitutes a “presence.” The retailers are fighting the idea in court.)

The danger, as some might see it, to requiring sales taxes to be collected on internet purchases is that state revenue might increase to the point that some lawmakers will decide to once again ease the overall tax burden on Missourians again.

That idea is getting pretty old. And shaky.

Political commentator Josh Barro, a former staffer at the Tax Foundation (considered a conservative think tank) who contributes to Business Insider, observes in a new article that the court decision reminds states of the Constitution’s Commerce Clause that says states cannot unduly burden or discriminate against businesses from other states.

South Dakota, which brought the lawsuit, avoids that pitfall by providing those retailers with computer software that makes it easier for them to pay sales taxes.  It does not require those retailers to deal with the state and every political subdivision within it that charges sales taxes.  The money goes to a central state agency.  Our Department of Revenue, which collects sales taxes collected by our local businesses and then sends proper amounts to local governments, would fill that role with internet sales taxes.

Missouri has not joined the twenty-or-so states that have signed on to the Streamlined Sales and Use Tax Agreement.  Those states have agreed to some common rules dealing with their sales taxes.  This ruling might encourage a new legislature (The 2019 General Assembly will have new leadership and several dozen new members) to take a new look at the SSUTA as it considers what to do to capitalize on the ruling.

One of Barro’s former colleagues at the Tax Foundation, Joe Henchman, says, “If you want to be absolutely sure that your statute is valid under these rules, you should try to emulate South Dakota as much as possible.”  So that’s a starting point.

Barro makes an important observation that some Missouri leaders seem to have been going against for some time: “It is important for a tax system to be adequate—that is, revenues should grow on pace with the economy, so the government can keep pace with the demand for services as the economy grows.”

He notes tax-free purchases from internet retailers distorts the behavior of purchasers by encouraging them to buy online when they otherwise would buy at a local store, thus reducing local tax collections and that means “the government either has to cut back on services or it has to raise taxes on something else.”   The resulting erosion of sales tax income at the state level has put a heavier burden on property taxes and “taxpayers have revolted against increases in this inflexible tax, voting to impose caps that have in some states kept revenue growth well below economic growth.”

Add to that the penchant government has to lower various taxes under the philosophy that lower taxes will mean more jobs that will stimulate the economy and you can get a state that reduces services that industries and employers would like to see before they commit to creating jobs.

So Missouri has an opportunity because of the court ruling.

Justice Anthony Kennedy, writing for the majority in the Supreme Court decision, estimates the ruling could mean eight to thirty-three Billion dollars in annual tax revenues for the states.  The federal Government Accountability Office thinks Missouri’s share would be $180-275-million a year in state and local sales taxes.

Missouri could do a lot with that amount of money at the state and local levels.  Except—

We have the crippling Hancock Amendments.

Those parts of our state constitution put a ceiling on how much new taxes can be collected without a statewide vote.  State Auditor Nicole Galloway, a little more than a year ago, estimated that taxes at the statewide level could not increase by more than $94-million without such a vote. We’re not sure how much of the figure from the GAO would go to the state and how much would go into local government revenue accounts, but Hancock appears to put a cloud over the issue at the state level.

Before the passage of what was called Hancock II, the state had to make refunds to income tax payers if state revenue growth exceeded the original Hancock limits. The state did make those refunds for a couple of years before adopting the first of a series of tax cuts to make sure the state did not to go to the inconvenience of mailing out checks.  The state hasn’t come close to hitting the refund threshold since Hancock II. In fact, Auditor Galloway says Missouri is four BILLION dollars under that limit now.

Will voters support the new authority given Missouri by the U. S. Supreme Court to collect more than $94-million in internet sales taxes?  Will collecting six or seven or eight cents per dollar from an out-of-state internet seller increase state revenue so much that a statewide vote will be required, giving Missourians a chance to reject the proposal?  The GAO and the state auditor have put forth figures indicating that vote might be needed.

We have had about two decades of leadership telling voters their taxes are too high. We’ve seen voters who travel to the polls on increasingly bad roads that go across increasingly crumbling bridges refuse to support gas tax increases to make their journey smoother and safer. And the legislature has taken steps year after year to reduce the state’s financial ability to “keep pace with the demand for services as the economy grows.”

The court has presented Missouri with a gift.  Will Missourians decide to leave it unopened?

(You can read Josh Barro’s article at https://amp.businessinsider.com/supreme-court-wayfair-internet-sales-tax-decision-good-for-consumers-2018-6)

Missouri, the Seuss State, and the importance of “no”

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“I call them Thing One and Thing Two…                                                                             Then those things ran about                                                                                               with big bumps, jumps and kicks                                                                                        and with hops and big thumps                                                                                             and all kinds of…tricks.”

Dr. Seuss’s Cat in the Hat gave us two Things and they have become part of our conversation in various ways through the years. The story comes to mind because history has never given Missouri a Governor-Lieutenant Governor combination with the same first names. Until now. Mike 1 and Mike 2.  Governor Mike Parson and Lieutenant Governor Mike Kehoe.

Missouri has had five governors and three lieutenant-governors named John, but the state capitol has never had two Johns at the same time.  We’ve had three Josephs as governor and one Joseph as lieutenant-governor.  But never together.

But on June 1, 2018, Missouri began to enter the Seussical Era. And now we have a couple of cats wearing a couple of new hats. Mike 1 and Mike 2.

As the good doctor wrote in another of his other best-selling ruminations on life:

“Oh, the places you’ll go! There is fun to be done!
There are points to be scored. There are games to be won…
Fame! You’ll be as famous as famous can be,
with the whole wide world watching you win on TV.

Except when they don’t
Because, sometimes they won’t.”

We wish Mike 1 and Mike 2 a service without big bumps, jumps and kicks or tricks.  However:

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There is another issue beyond the legality of the appointment that piques our interest about the twoship of state government.

Article 4, Section 10. There shall be a lieutenant governor who shall have the same qualifications as the governor and shall be ex officio president of the senate. In committee of the whole he may debate all questions, and shall cast the deciding vote on equal division in the senate and on joint vote of both houses.

The Missouri Constitution carries over language written in 1875.

Today we pick a philosophical fight that suggests the lieutenant governor should always break ties in the senate and on those occasions when there is a joint vote by both the House and the Senate (the provision was written at a time when Missouri’s U. S. Senators were elected by the legislature) with a “no.”

Our argument is certainly open to discussion and we would welcome it in the comment area at the end.

Under our Constitution, the lieutenant governor is both fish and fowl, both legislative and executive in nature, the successor to the chief executive if something befalls the chief executive, and the presiding officer in the upper house of the legislative branch.

To test this idea, let’s suggest a circumstance in which the presiding officer in the upper legislative house breaks a tie with a “yes” vote on a bill.  Before the bill is truly agreed to and finally passed, the chief executive becomes unable to perform the duties of that office, thus elevating the person who broke a tie on a piece of legislation into a position of signing the bill into law.  The situation is at best awkward.  Under certain circumstances, signing the bill could create a conflict of interest because a vote cast to keep an issue alive during the legislative process might conflict with a new governor’s obligation to serve all of the people of Missouri.

So, let’s argue, the tie should always be broken in the negative.  Why?

Because it is the responsibility of those chosen by the people in the legislative districts to represent those constituents in finding agreement on a proposed law affecting all Missourians.  The Executive Branch, which is not chosen to specifically balance the rights of specific constituents, should not take legislators off the hook.

If the legislature, which is entrusted with enacting statutory policy that one should expect to be fair to all, cannot draft a policy that draws majority support, then its failure should not be excused.  And the lieutenant governor should not excuse that failure by voting “yes.”

Please note that we began by referring to this as a philosophical fight. In the real world, of course, there is partisanship and special interest favors to be considered, which is why a lieutenant governor who happens to be of the same party as the majority in the state senate is likely to let the majority party off the hook by turning a failure into a partisan success.

A “yes” vote to break a tie dismisses the value of half of the state’s population.  A “no” vote recognizes the place of both sides in the system of government, and demands that the people’s representatives work harder on an equitable policy for all.

A “yes” vote is politics.  A “no” vote is statesmanship.

The Replacement

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Governor Parson wants the legislature to pass a law allowing lieutenant governors who ascend to the governorship to appoint a new lite gov.  Sounds simple.  But maybe it isn’t. Then again, maybe it is.

“It needs to be done. I don’t like the state of Missouri being without a lieutenant governor,” he said after being sworn in. The feeling at the capitol is that he’ll call a special legislative session to clear up any doubt that he could make an appointment.  He thinks a lieutenant governor is important in the transition from the Greitens administration to his administration.  He does have a transition committee working with him.

He has not indicated if he’ll summon lawmakers into special session soon or wait until the regular September veto session and have a special session that runs concurrently with it—a more economical move.

Governor Parson did not mention the issue in his speech to the joint legislative session yesterday, which for all intents and purposes had more the flavor of an inaugural address than his remarks after his swearing in ten days ago.

The Missouri Constitution allows the governor to “fill all vacancies in public offices unless otherwise provided by law.”  State law, however, does not allow the appointment of a new lieutenant governor, state senator or representative, sheriff or recorder of deeds in the city of St. Louis. The Constitution also has a provision that, “If any state officer other than the lieutenant governor is acting as governor, his regular elective office shall not be deemed vacant and all duties of that office shall be performed by his chief administrative assistant.”  The provision is a delegation of authority of an elective official to a bureaucrat while the elected official is running the state. It’s not a particularly bad idea. The chief administrative assistant is likely to know the duties and operations of the office and by virtue of the position should be able to go to meetings, attend conferences, and make administrative decisions.

But it’s not a good idea for the lieutenant governor because it would lead to an unelected bureaucrat becoming governor if a vacancy occurs in that office a second time within a four-year term. In all honesty, and with absolutely no offense intended to present company, there probably are bureaucrats who could do the governor’s job and do it well.  But the highest elective office in the state should stay in the hands of somebody of a higher level than a bureaucrat.  Or at least, that’s what some people are likely to think, maybe most people.

And for bureaucrats who read this note, don’t get your feathers ruffled. The author appreciates bureaucrats.  He’d better.  He married one.

Governor Nixon vetoed a proposal a few years ago that would have applied the same standard of bureaucrat-in-charge to the office of lieutenant governor, saying that wouldn’t be appropriate.

Well, then, what should the new law say?  That’s for the professionals to decide.  But there is room for amateur comment.

The limits on filling legislative or certain local offices make sense because those are decisions left to community or district voters to make to begin with.  The lieutenant governorship is or should be in these circumstances a statewide decision.

It would appear, then, the question is whether to give the governor the appointment power or to give the governor the authority to call a special statewide election.

This is where things can get complicated.

Should the process of filling of the vacancy be different if it occurs because a lieutenant governor moves into the governorship versus a vacancy that occurs because a lieutenant governor dies or otherwise vacates the office?

Example: Governor Bates died in 1825. There was no lieutenant governor because Benjamin Reeves had resigned to survey the Santa Fe Trail. The Senate President Pro Tem became acting governor but the lieutenant governor’s office remained vacant.

In what way should consideration of filling the lieutenant governor vacancy alter the present line of succession for the governor’s office?  Now it’s governor, lieutenant governor, Senate Pro Tem, House Speaker. An appointed lieutenant governor would render the current succession provisions irrelevant, wouldn’t it?

What if the governor whose departure created the vacancy was of a different party from the lieutenant governor who rises to the governorship?  If the voters created the difference, should not their wishes be honored in the appointment process?  For instance:  Had Eric Greitens been the Democrat he once was and Mike Parson be the Republican he always has been, should a Governor Parson with appointment authority be required to appoint a Democrat lieutenant governor to maintain the different party governor-lieutenant governor relationship established by the voters?

The key question is whether the system should allow a governor to, in effect, appoint his or her successor or potential successor?

The issue becomes even more acute if the vacancy occurs in a campaign year.  Should a governor give a candidate for the lieutenant governorship a leg up in a primary or general election by appointing that person to that position?  The question holds whether the vacancy occurs before or after the filing window for candidates.

Suppose 2018 was an election year for lieutenant governor and the Greitens resignation had taken place before or during the filing period.  Would it be proper for Governor Parson to look at the list of potential primary candidates from his party and pick someone to fill the vacancy, thus presumably giving that person greater visibility, name identification, and possible fund-raising advantages over others who are interested in the job?

A proposal that briefly floated around in the recent regular legislative session called for senate confirmation of a nominated lieutenant governor.  We’re not sure that makes a lot of sense, especially if the vacancy occurs—as it has now—in May and the legislature is not mandated to be back until September.  Calling a special session just to confirm a new lieutenant governor will quickly draw criticism from those who suggest money is being wasted. And if a governor during a campaign year picks a state representative to fill the vacancy that a state senator wants to file for as a candidate, is confirmation by the senate less likely?  A deadlock on the confirmation process will serve nobody at a time when the obligations of the office need someone to meet them.

Calling a special election will be even more costly and such a proposition is likely to be criticized if it does not include a primary to allow any hopefuls to have their chance, a process that is likely to leave the office vacant for an unacceptable amount of time.

Of course, it’s entirely possible the legislature will not spend a lot of time kicking these and other ideas around and will just pass a bill saying the governor can appoint a lieutenant governor whenever there is a vacancy in that office and let the system play itself out, knowing that some people will have fits no matter what direction the bill debate takes or what form the bill finally has.

Some other miscellaneous observations as long as we’re chatting about this stuff:

The Constitution eliminates any uncertainty about whether somebody who would not be qualified to be governor could be appointed lieutenant governor—a 22-year old political phenom, for instance.  The constitution says the lieutenant governor shall have the same qualifications as the governor—at least thirty years old, a citizen of the United States for at least fifteen years and a resident of the state for at least ten years before the election.

The issue of replacement of the lieutenant governor is something we have been looking at since the Roger Wilson-Joe Maxwell days and as is the case with many things in politics, identifying a problem is far easier than identifying a solution.

But it’s about time the issue was addressed and it’s good to see that it is.

And then there’s this twist: The constitution says no governor can be elected to more than two terms EXCEPT in cases such as that which has befallen Mike Parson.  Section Seventeen says, “No person who has held the office of governor or treasurer, or acted as governor or treasurer, for more than two years of a term to which some other person was elected to the office of governor or treasurer shall be elected to the office of governor or treasurer more than once.”  So Governor Parson, by taking over for more than half of the Greitens term faces a shorter term limit than governors elected without having filled out someone else’s term.

Why are those two offices singled out? Because they are the offices of greatest power.  The administrator of all of state government and the person who has his or her hands on the state’s money.  And that’s where term limits really should be focused—not on length of service but on limits to power.   Unfortunately, Missouri voters fell a long time ago for the faulty idea that service is more dangerous than power and in doing so gave away their right to continue electing representatives and senators that they trust to write the laws under which all Missourians are supposed to live.

But that’s another rant and a distraction from today’s issue.

What do we do with the increasingly busy office of lieutenant governor when there’s no lieutenant governor to conduct all that business?

It’s time to decide.

Next?

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There’s a new sheriff in town. But the shadow of the old one lingers.

Mike Parson is in the governor’s office. The circumstances of the leadership change and the character of the new governor are reminiscent of events of forty-four years ago in Washington when Gerald Ford replaced the resigned Richard Nixon.   And the tone of new governor’s early remarks is familiar to those who remember or who have read Ford’s remarks upon taking the oath of office.  “Just a little straight talk among friends,” said Ford, not an inaugural address.

Thomas Jefferson said the people are the only sure reliance for the preservation of our liberty. And down the years, Abraham Lincoln renewed this American article of faith asking, “Is there any better way or equal hope in the world?”

I intend, on Monday next, to request of the Speaker of the House of Representatives and the President pro tempore of the Senate the privilege of appearing before the Congress to share with my former colleagues and with you, the American people, my views on the priority business of the Nation and to solicit your views and their views…

…I believe that truth is the glue that holds government together, not only our Government but civilization itself. That bond, though strained, is unbroken at home and abroad.

In all my public and private acts as your President, I expect to follow my instincts of openness and candor with full confidence that honesty is always the best policy in the end.
My fellow Americans, our long national nightmare is over.

Our Constitution works; our great Republic is a government of laws and not of men. Here the people rule. But there is a higher Power, by whatever name we honor Him, who ordains not only righteousness but love, not only justice but mercy.

As we bind up the internal wounds of Watergate, more painful and more poisonous than those of foreign wars, let us restore the golden rule to our political process, and let brotherly love purge our hearts of suspicion and of hate.

The leaders of the legislature already have invited Governor Parson to speak to a joint meeting of lawmakers gathered for the special session called to consider disciplinary action against Governor Greitens who with his family has been moved by Two Men and a Truck to their home at Innsbruck.  We wonder if the neighbors brought covered dishes and other welcome symbols to the Greitens house or whether they are waiting to see how the Greitens emerge once everything is unpacked.

They have left behind in Jefferson City the wreckage of the Greitens administration and the special House committee appointed to investigate whether impeachment articles should have been filed against him.  A special prosecutor is watching from Kansas City.

Should the committee continue to work?  Yes.

Should its subpoenas for Greitens documents be honored? Yes.

Should the special prosecutor keep investigating?  Yes.

The Speaker of the House might need to revise his order establishing the committee to authorize it to continue accumulating information about the way the Greitens administration functioned. The issue now might become the governorship itself.  And in examining how the governorship of Missouri should be managed, it is important to understand how the responsibilities of office were administered and what controls should be expected or placed on the administration of that office.  The task, therefore, might become more complicated and might require the committee to broaden its move toward conclusions, most of which might be based on what it learns about the way Eric Greitens administered the governorship.

After all, the work of the committee is the kind of thing Eric Greitens once said was important to the people of Missouri.   A year before he took office, he told St. Louis Public Radio there would be no secrets about the sources of his funding.

“The most important thing is that there is transparency around the money. We’ve already seen other candidates set up these secretive super PACs where they don’t take any responsibility for what they’re funding … because that’s how the game has always been played. I’ve been very proud to tell people, ‘I’m stepping forward, and you can see every single one of our donors.’”

We now know that he spoke with a forked tongue.  But he also repeatedly referred to himself as “the people’s governor.”  And the people deserve to know what he said they should know—about him, particularly.  He did not step forward and let people see “every single one of our donors.” The committee, to the best of its ability, should keep his promise for him.

On the day of Greitens’ resignation, information came out that the use of Confide, the app that destroys e-mails as soon as they are read, was far more extensive than Greitens had admitted or that Attorney General Hawley had uncovered.

Does the use of that app and the late revelation of the extensive use of it constitute obstruction of justice?   Lawyers can fight over that issue but the committee’s investigation of the matter is clearly warranted as an extension of the exploration of possible abuses in office by Eric Greitens, whether the destruction of Confide emails violated state records retention requirements, and whether those requirements should be amended.

The record of the administration of “the people’s governor” must be presented to the people he promised to fight for (to use another phrase he was fond of using).  The historical record of the seventeen-month administration of Eric Greitens must not be incomplete.

What the legislature has been doing since the revelations of the governor’s extramarital affair and the escalation of actions on both sides is a lesson that can guide future legislatures and future governors—and governor candidates—for decades to come.  Someday a long time from now, we hope, another legislature will look back for guidance at what the House and its committee have done and are doing. Let the record for our posterity be as complete as possible.

Resignation accomplishes several things.  Two things it should not accomplish, however, are to shield someone from history and to restrict the value of lessons from our time that may guide future generations.

It is what it is

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And what it is, is the last week of the second session of the 99th General Assembly of Missouri. This week had been a two-fer until Monday afternoon when the invasion of privacy case against the governor was dismissed.  Reporters until then had to try to keep one eye on the legislature’s actions and the other on the court actions in St. Louis.

This session seems to have had less pointed—and tiring—partisanship than some sessions in the past, perhaps because both parties have focused on a governor who has few friends among lawmakers instead of on the politics of each other.  Legislative leaders, particularly Speaker Todd Richardson and Senate President Pro Tem Ron Richard, have worked hard to keep the general assembly focused on its job, even when its job in the House of Representatives has included an investigation of the governor.

Both Richard and Richardson are leaving the legislature early next year when their successors are sworn in.  Richard has had his eight years in the House and his eight years in the Senate and the people in his district will never again have a chance to let him represent them again because of term limits.  Richardson could run for the Senate someday. But he has not filed for any office for this year’s elections.

Their jobs won’t really be done as of 6 p.m., Friday, though. The special session that can focus entirely on the governor begins half an hour later.  Lawmakers will have a month to decide if he should be impeached—and the attention of an investigating committee is increasingly focused on the governor’s dark money operations, some of which have produced attacks on legislators who have not forgotten or forgiven. And new revelations keep accumulating about the governor and dark money.

This has turned into a legislative session nobody signed up for.  Events since opening day and the later State of the State message from the governor have scrambled whatever the legacy this session leaves. Maybe that legacy will include a bequest for the 100th General Assembly to handle.

One of the densest shadows over this session is that of dark money.  Lawmakers have talked of doing something about it for years but haven’t done it.  It has become, regretfully, oxygen to too much of the political system.

Memory tells us that the best time to change a poor status quo is the year after an election when the pressure of winning another term is lessened for a few months.  Perhaps 2019 will be a good time to recall a couple of memorable things attributed to the colorful former Speaker of the California Assembly, Jesse M. Unruh, who said, “Money is the mother’s milk of politics.”

But his more important observation is, “If you can’t take their money, drink their booze, eat their food, (have sex with) their women and vote against them, you don’t belong here.”

Maybe next year’s lawmakers will be the ones to do more than complain about dark money.  Trouble is, many of them will have benefitted from it.

The Missouri Capitol has many mottos that were carved into its walls more than a century ago to inspire the public and its public officials to noble actions.  Maybe it’s time for a new one, starting with, “If you can’t take their money…..”

 

 

 

Suspension (a continuation of last week’s discussion)

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Last week’s entry about whether a governor facing a criminal charge and/or impeachment could be suspended with or without pay until his or her criminal situation cleared up brought a response from longtime colleague Bob Watson, who has had his nose deeper in the statute books and the Missouri Constitution than your faithful scribe has had his.

Bob thinks we already have what was discussed in that entry, pointing to Section 106.050 of the statutes, reading, “If any officer shall be impeached, he is hereby suspended from exercising his office, after he shall be notified thereof, until his acquittal.”

Bob also recalls that when the Attorney General tried to oust Secretary of State Judi Moriarty after her impeachment, the Missouri Supreme Court suspended her with pay until her impeachment trial ended. The ruling said the only allowable means of removal of a statewide elected official is through the impeachment process and the legislature could not legally enact laws automatically removing any elected executive official.

And three responses to last week’s entry (posted with the entry) from Bill Thompson offered similar clarifications.  We thank Bob and Bill for their assistance.

Our entry last week spoke to suspension before impeachment, however.  But suspension does involve removal from the office and it seems Bob is correct that a suspension before impeachment wouldn’t work.  It seems, therefore, that our point last week that a governor is, indeed, not like other workers who can be suspended upon filing of criminal charges. In his case, impeachment charges have to be filed, too.  Or at least as we now understand it.

We had overlooked one possibility covered by Article IV, section 11B of the State Constitution, which sets up a Disability Board made up of the lieutenant governor, secretary of state, the auditor, treasurer, attorney general, the president pro tem, the speaker of the house, and the majority floor leaders of the two chambers.  That board has the power to declare a governor unable to discharge the powers and duties of his office, upon which finding the gubernatorial succession protocol kicks in.

That only time we know of that such a board met and took action was in the hours immediately after Governor Carnahan’s plane crash, before confirmation of his death.  The board met and cleared the way for Lt. Governor Roger Wilson to become acting governor until there was that confirmation, at which point he was sworn in as the governor.

While some have questioned the governor’s ability to govern under present circumstances, he has been making the point that he can “discharge the powers and duties of his office,” by making appointments and making public appearances and speaking as the elected chief executive of the state.

The discussion highlights the uniqueness in Missouri history of today’s situation, however.  However it turns out will be an important guide should Missourians ever face something like this again.

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In a related note, we see that Rachael Herndon Dunn, the editor of the Missouri Times newspaper (which is different from the Missouri Times quarterly newsletter of the State Historical Society of Missouri and the earlier Missouri Times newspaper of the 1970s) says in the latest edition of the newspaper’s magazine that the three people she would pick, if she could pick three people to join her for dinner, would be Bob Griffin, Bill Webster, and Eric Greitens.

Interesting.  But what could they possibly have in common to discuss?

Not just another employee

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Last week’s entry, “The Process,” caught the eye of fellow former Capitol scribe Steve Kraske, once the ace political reporter for the Kansas City Star and now an associate teaching professor at UMKC.  Steve also does a weekly radio show about current events on NPR affiliate KCUR-FM.   He decided we needed to talk about “The Process” on his Monday show this week.

http://kcur.org/post/seg-1-gov-greitens-and-process-impeachment-seg-2-saving-historical-records-umkc

In preparing for the program, it occurred to THIS former Capitol scribe that the person who holds the highest elective office in state government does not have one of the privileges that people in other walks of life have when they get into trouble.  We don’t know how having that privilege would change the way events are developing, but the idea of instituting it might bear some thought.

In private business as well as in state and local government, a person suspected of breaking the law or of violating company standards can be suspended with or without pay until legal proceedings determine if that person is guilty.  If they are, the suspension becomes termination.  If they are found NOT guilty they can expect to be made whole by their employer.

But—as far as we know—the legislature can’t suspend a governor until the courts have made their determinations.  Impeachment during that period is not suspension. It’s flat-out removal.  And if the governor is found NOT guilty, he or she has no expectation of being restored to their position.

When it comes to a governor, it’s an in-or-out matter.  And that’s a matter of concern for the governor and those in and out of the legislature as impeachment talk continues.  As we write this, we have not heard how the signature-gathering on the petition for a special session to consider impeachment is going. Three-fourths of the members of both houses have to sign the petition.  Pro-impeachment lawmakers have made their sentiments known, often loudly.  But the governor only needs twenty-six percent of the legislators to refuse to sign and the special session push fizzles.

If suspension were to become part of state law, the Lt. Governor would be the acting governor until the case is resolved.  If the governor is cleared, the Lt. Governor goes back to his or her smaller office and the governor returns to the big oval room.

Would such a system be less unpleasant than what we’re watching now?  Probably depends on the governor/legislature relationship.  Should the legislature have the power to, in effect, fire the governor before a legal determination is made in the governor’s legal cases?  It has it now.   But is it right?  Isn’t there or can’t there be some structure that gives the governor the same privilege lesser citizens have when they become targets of suspicion?

We’re just asking.

The Process

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This is a time of strong opinions, strong statements, and strong actions.  In such times it is important to recognize there is The Process.

The Process often is ugly.  The Process often is painful. The Process often seems to take longer than it should.

But The Process is what assures us that there is order.   And without order there is no justice.

This is one of those times when The Process emerges from its normal daily work to become a prominent factor in our state political system.

This observer has seen two Speakers of the House and one Attorney General sent to prison. He has seen a Secretary of State impeached and removed from office. He has seen a State Treasurer exonerated after being charged with profiting from state funds. He has covered criminal proceedings against at least seventeen members of the House and three members of the Senate that resulted in convictions or guilty pleas to misdemeanors and to felonies.

In forty years of front line reporting in state government, he watched 1,032 people serve in the General Assembly, interviewed or covered (in one form or another) eleven governors, nine lieutenant governors, eleven Secretaries of State, eleven state auditors, ten state treasurers, and eight attorneys general.  Now he is watching something new and wondering how, in the end, this circumstance will fit into the list of those mentioned in the earlier paragraph.

For the first time in state history a sitting governor faces both criminal proceedings and the potential for removal efforts.  People from both sides are calling for him to resign.

The Process has become his greatest protection as well as his greatest threat.  It diminishes emotion.  It provides a structure for a balanced determination of justice.  It is not perfect but The Process gives balance in times of fierce attacks and equally fierce denials.

A special House committee has presented its first report of the legitimacy of allegations against the governor, who has called its work a “witch hunt.”   The committee was led by an honorable chairman, wisely picked by a Speaker who has chosen to respect The Process despite the difficulties the committee’s hearings might cause for several people whose lives have been altered by events. The committee has not judged the governor but it has concluded the key witness against him is credible.

The governor says the report was drafted without any testimony in his own defense. The committee reports the governor refused invitations to testify.  The governor says he will testify after his criminal trial ends and that is within his rights. Simply put, the stakes are higher in his criminal trial than they are in the committee’s study.  Potential loss of office is serious but not nearly as serious as a potential conviction and possible loss of freedom in the criminal case.  The governor’s decision is not really that hard to make under those circumstances. It is a legitimate part of The Process.

While the committee’s first report seems to be devastating news for the governor, it also is valuable news to the governor because it provides him and his defenders with a strong preview of the kind of testimony they will have to attack in the criminal proceeding next month.  It also provides them with a challenge.  They must determine how to undermine the credibility of that testimony without antagonizing a jury.  The governor says he is confident a jury of his peers will exonerate him.  His lawyers gain through this report an understanding of a fine line they will have to walk in disputing the validity of the testimony without making the witness so sympathetic in the eyes of the jury that the jury of peers tilts the wrong way for their client.

It’s The Process at work.

The committee report strengthens and increases the resolve of those who demand the governor resign. But it also strengthens his position that he should stay because a report is not a jury nor are those demanding his resignation jurors.  As long as The Process considers a person innocent until proven guilty within The System, he is innocent.

He still retains the powers of governor although his ability to govern remains badly weakened. But if he resigns the office he was elected to hold and then is found not guilty of criminal charges, he has no way of returning to the office in which the voters chose him to serve.

The Speaker and the President Pro Tem have said the legislature will start its process of convening a special session to consider penalties for the behavior described by the committee’s witness.  Voters in 1988 approved a constitutional amendment letting the legislature convene itself in special session for as many as thirty days without a call of the governor.  Article III, Section 20(b) says the session can be called by three-fourths of the members of the House and three-fourths of the members of the Senate, a big requirement but a possibility given the committee report and the existing poor relations between the governor and the legislature.

The House does not have the power to remove the governor.  It can only file charges.   The Senate, in the case of a sitting governor, does not have the power of removal either.  Its authority rests in appointing seven “eminent jurists” to conduct a legal proceeding.  Again, The Process brings the matter into The System where justice is determined, we should all hope, in a non-partisan and less emotional setting. Only those jurists can determine if he should forfeit his office.

This also is a time for firm hands on the reins in the legislature.  While the committee continues investigating the governor—-and there is no indication when it might drop the other shoe—the legislature still has about five weeks to focus on its lawmaking responsibilities.  The legislature must provide a budget that will keep government services going to the people who need them.  It also must determine the fates of several issues that will affect the hourly lives of Missouri citizens. That is its responsibility until 6 p.m., May 18.

It is not precluded, with three-fourths of the members agreeing, during that time from setting a date for the House to begin impeachment proceedings in a special session.  It might choose—out of respect for The Process—to set dates that do not conflict with the governor’s right as a citizen to obtain a fair trial. That’s The System, maintaining order in the legislative process.

The governor, as is his prerogative, is entitled to his office until he is removed or disqualified from holding it.  While retaining his position is not popular with many people, it is his prerogative.

The Process is in place and it is moving.   It is protecting the governor while at the same time threatening him, as it would do with you and me if we were facing serious accusations.  The result might not be what you or I would prefer.  But The Process is, in the end, our best hope for justice for you and me.

And for the governor.

(image credit: brainyquote)