Once again, Obamacare stumbles in Arkansas

Rep. Mike Patterson: Official Speech Suppressor of the Arkansas General AssemblyEarlier this week, Republican legislators were asked by state Insurance Commissioner Jay Bradford to support the establishment of a state health insurance exchange; yesterday, as detailed in this excellent story by John Lyon, they turned him down.

You can read commentary at our sister site, The Arkansas Project, from David Kinkade about what Bradford’s initial request was, why it was a Trojan horse, and how Republicans reacted to it. You can also read my post over there about how committee chairman Mike Patterson did his best to block the distribution of the latest AAI report to lawmakers. By the way, about that report -- you should read it.

You should read it because the state’s political and media establishment seem convinced that unless we establish a state health insurance exchange immediately, we will have a federal exchange imposed on us shortly. There are plenty of reasons to believe that it ain’t necessarily so.

Why Obamacare is in critical condition

Earlier this year, near the close of the legislative session, the Advance Arkansas Institute argued that our state legislature should do nothing to advance Obamacare (for instance, it shouldn't establish a state insurance exchange) until some of the many uncertainties surrounding the program were clarified. In our paper analyzing the Beebe Administration's proposal to establish a state exchange, Lawmakers Who Want to Surrender Even More Control over Health Care Policy Should Love HB 2138, we argued that the inferior product that the Beebe Administration had presented to the legislature on a take-it-or-leave-it basis should be rejected, and that lawmakers should consider establishing an alternate exchange which would better serve Arkansans health care needs. (The choice that Obamacare offers is that, unless a state establishes its own exchange, the federal government will swoop in and establish one for us.)

Since then, however, the prospects for the successful implementation of health care reform have continued to worsen. The federal government issued hundreds of pages of regulations that further constrain the possibilities of efficiency in a state health care exchange, and a fascinating new paper by John Graham of the Pacific Research Institute demonstrated that it is nearly impossible that more than a third of the nation's population will be under state exchanges by the 2014 deadline. Journalist David Hogberg discovered that a bug in the federal legislation makes it impossible for federal exchanges to offer the subsidies to consumers that are supposed to make Obamacare work. The establishment of a federal exchange will be nearly impossible for an additional reason: federal funding will almost certainly be unavailable for the foreseeable future. In short, Obamacare is in critical condition, and the resources it needs for life support are unavailable.

This means that conservatives in state legislatures in Arkansas, and across the country, have it within their power to block the establishment of Obamacare. They just need to hold firm and resist the entreaties of liberals to establish an exchange on the state level. Will Arkansas legislators have the courage to let Obamacare wither and die?

Why is our attorney general ignoring the law?

John Brummett’s recent column about Arkansas Attorney General Dustin McDaniel’s questionable and self-serving use of legal settlement funds lays out the start of a good case that McDaniel is abusing his office for political gain.

Brummett asked McDaniel under what authority the attorney general had to spend settlement money, which he supposedly holds in trust for the people of Arkansas, to fund a new branch of his own office that would investigate computer sex crimes.

McDaniel replied that his actions were justified by cy pres, which “he called a time-honored judicial doctrine that holds that settlement dollars ought to go toward addressing the failings made evident by the lawsuit.”

McDaniel is simply wrong, and his interpretation of cy pres represents a perversion of the legal doctrine. I’ve laid out the case against McDaniel’s misapplication of the doctrine in a paper here (opens in PDF).

The larger problem that McDaniel’s actions illuminate is the establishment of an essentially unchecked fourth branch of government in the AG’s office, in which the office seizes for itself executive, legislative, and judicial powers.

McDaniel insists that it is his prerogative both to redirect and to spend public money, powers that are conventionally confined to judges and legislators. McDaniel, although hardly the first AG to exploit the office’s authority for political gain, seems intent on pushing the envelope.

At a wonderfully hypocritical February 2010 press conference where he first announced the settlement, McDaniel alleged that the Zyprexa manufacturers “didn’t care what they were doing to taxpayers.” The same thing could easily be said about McDaniel. Check out my paper for more detail.

(Cross-posted at The Arkansas Project.)

Update on Thursday, October 20, 2011 by Dan Greenberg

Update: McDaniel did the right thing and changed the policy of the office.

The devil is in the details

There aren’t many Arkansans who think gas prices are too low. But a new federal tax proposal threatens to force fuel prices even higher.

Last month, two respected U.S. senators introduced legislation intended to cut taxes, spur economic growth, and reduce the interference of the tax code in our economy. The Wyden-Coats Bipartisan Tax Fairness & Simplification Act of 2011 would enact many worthwhile tax policies – such as reducing and simplifying tax brackets, lowering the corporate tax rate, and getting rid of the alternative minimum tax. But one deficiency in the Act demonstrates an important lesson of tax reform – namely, that just one change in the tax code that gets the details wrong can counterbalance the good effects of praiseworthy policies. In short, the devil is in the details.

More particularly, the Act contains one proposed change in the tax code that would not only make our economy less productive and our tax code more unfair, but could also raise fuel prices and threaten America’s energy security. For more information, read the newest AAI Arkansas Alert: Don't Be Fooled by "Tax Reform" That Raises Taxes on Energy and Raises Prices at the Gas Pump.

The Arkansas crime rate is about to double

Question: What do all these things have in common?

 A high school teacher sends several emails to a parent saying “I worry that if your son’s performance in my French class does not improve, he is likely to receive a failing grade for the course.”

 A political activist posts several updates on Facebook claiming that the election of a certain candidate would lead to military defeat, burdensome taxes, and cultural collapse.

 A newspaper publishes several editorials on its website discussing with some righteous anger and in some detail the wickedness of a convicted criminal’s actions.

 A father sends his teenage daughter several text messages informing her that she would be grounded for the weekend unless her room was clean by the time he got home.

 Answer: doing any of those things could get you sent to jail under a new “cyberbullying” law that the Arkansas General Assembly passed this week. For more information about what is arguably the most thoughtless and most unconstitutional law that the state legislature produced this session, click here.

The bill passed unanimously in the Senate, although it created some controversy and discussion in the House. Click here for the House floor debate (then go to 2:23:51) and click here to see how each House member voted.

Update on Thursday, March 31, 2011 by Dan Greenberg

Professor Eugene Volokh of UCLA law school discussed our work on cyberbullying yesterday. He regularly monitors the creation of criminal statutes involving cyberbullying across the states, and he often discovers that they are unconstitutional. As he noted, Rep. David Meeks brought up our paper in his floor speech Monday in the course of urging people to vote against the bill and for (among other things) the First Amendment: see floor debate here, starting at around 2:23:51.  Rep. David Meeks, AAI Hero

I know a good number of smart people, but I only know a few genuinely brilliant people. Eugene Volokh is a genuinely brilliant person (I don't say that just because he agrees with me on this, either!); I have known him and learned from him for nearly two decades, and anyone interested in constitutional law will find that his blog (which is coauthored by a bunch of other legal academics) deserves regular attention. Eugene was too polite to point this out, but the piece I wrote was heavily influenced by his earlier work on cyberbullying. (A Tom Lehrer song is perhaps relevant here.) Basically, the good ideas in my piece come from him, although any mistakes or errors are mine alone.

Better teachers, better schools

Arkansas’s children deserve good teachers. Good teachers help students more than anything else can. But teachers in Arkansas are currently licensed under a set of bureaucratic requirements that have never been shown to improve educational quality or benefit students. These bureaucratic requirements can keep potentially good teachers away.

In the newest paper for the Advance Arkansas Institute, Stuart Buck -- Distinguished Doctoral Fellow at the University of Arkansas's Department of Education Reform -- explains how House Bill 1893 improves the teacher licensure process in Arkansas by opening the schoolhouse doors to more potentially good teachers. Buck is a native of Arkansas and the author of one of the most interesting books I have ever read about what W.E.B. du Bois called the problem of the 20th century: the problem of the color line. Read Acting White: The Ironic Legacy of Desegregation -- or if you're looking for something a bit cheerier, read his analysis of the teacher licensure bill. 

How to increase voter turnout and decrease voter fraud

Every American has a fundamental constitutional right to fair elections and to ballot integrity. But in Arkansas, voter fraud is very easy to get away with and very hard to prove. In a nutshell, that is the reason for HB 1797: by requiring photo ID to vote, it would block polling-place vote fraud.

Some people say that requiring voter ID in order to vote would decrease turnout -- or even, in the words of the Arkansas ACLU, "disenfranchise" people. In the newest paper from the Advance Arkansas Institute, we look at the evidence, which suggests that a voter ID requirement actually increases turnout. In fact, the data from the 2008 elections reveals that states with a voter ID requirement actually saw higher turnout than states without that requirement. Read Requiring Voter ID: Bad for Voter Fraud, Good for Voter Turnout here.

The current state of the law is a bit of an embarrassment: under Arkansas law, poll workers are required to ask voters to show ID when they vote, but voters are free to decline. That rule has the primary effect of convincing law-abiding citizens that the system works while completely failing to deter someone who wants to impersonate someone else at the ballot box and commit vote fraud. If you have never watched a polling place in action, you should. You will see something very interesting: when people pull out their ID and see that there’s no requirement for the poll worker to look at it, you can almost read their mind. They’re thinking: “What’s stopping someone else from showing up and giving my name and voting for me?” The answer is: practically nothing. 

Arkansas election history, which contains at least one account in the last decade of an elected official pleading guilty to offenses involving vote fraud and another legislative election which a bipartisan legislative committee found pervaded with fraud, shows that vote fraud deserves to be addressed by the Arkansas General Assembly. On Friday, the House State Agencies Committee passed HB 1797 out of committee (see video here); the full House will vote on it this Monday.  

Update on Monday, March 21, 2011 by Dan Greenberg

UPDATE: Bill passed the House and moves on to the Senate tomorrow.

Secrecy in state government continues to advance

HIf Churchill thought Russia was mysterious, he should have seen Arkansas.is powers of expression were peerless. Just before the outbreak of World War II, Winston Churchill said these famous words over the radio: “I cannot forecast to you the action of Russia. It is a riddle, wrapped in a mystery, inside an enigma.”

Observers of Governor Beebe might draw similar conclusions about his administration. Governor Beebe’s recent policy activism suggests a resistance to openness and public scrutiny. Last week, for instance, he sent taxpayer-funded state employees to the Senate Public Health Committee to argue against Sen. Missy Irvin’s Healthcare Reform Accountability Act, which would have required the federal government to disclose the costs of federal health care reform to the public. Regrettably, the disinformation that was spread by advocates of government secrecy – such as DHS Director John Selig’s wild misrepresentations that requiring disclosure of program costs might somehow threaten Medicaid – carried the day. Senate Bill 709 would have required state agencies to disclose the costs of federal health care reform to the legislature—as well as evidence of specific, state-level statutory or constitutional authority for the state to act—so that state policymakers could be informed of the costs before the law was implemented or enforced. Like the “open checkbook” bill that will be signed into law tomorrow, the Health Care Reform Accountability Act would have been a welcome step towards the complete disclosure of public business—disclosure to which the public is entitled. Health care expert Christie Herrera wrote this paper for AAI on the importance of disclosing the expenses of federal health care reform.

Today, other advocates of secrecy in government will push their effort to remove even more public business from public view. SB 777 is scheduled for consideration in the Senate Public Health Committee today. This bill advertises itself as a quality improvement measure. But advocates of open government should be aware of what SB 777 really does: it blocks public scrutiny of records involving the care of the disabled. Eric Francis, a local journalist and a two-time winner of the I.F. Stone award, recently authored this paper for AAI on the dangers of shrouding care for the disabled in mystery.

There will likely be a great deal of media attention paid to the attempt described above to shrink the Freedom of Information Act. Regrettably, journalists have paid very little attention to what is arguably the most important health care reform story in Arkansas. A little more than a week ago, Governor Mike Beebe revealed that he had been planning fundamental and unprecedented changes in the state’s Medicaid system, in concert with the Obama Administration, with little or no consultation with state legislators. At this point, almost nothing is known about the Beebe plan beyond a six-page memo his office has distributed. But AAI is doing its best to clear away the fog of mystery that surrounds this proposal: health care expert Twila Brase has supplied us a paper with the initial questions that policymakers and citizens should ask Governor Beebe about his Medicaid proposals.

Churchill ended his peroration on the mysteries of Russia with this sentence: “But perhaps there is a key. That key is Russian national interest.” I hope that the actions of those who are doing their best to make public business a private matter are motivated by something beyond their own political interest. But on this point, I am less than optimistic. 

Protecting taxpayers

Earlier today, Sen. Jason Rapert’s Taxpayers’ Protection Amendment (SJR 4) was heard in the Senate Committee on State Agencies. If enacted, this amendment would require a “supermajority” vote of 75% from both houses of the legislature in order to raise taxes in Arkansas. Among the many virtues of this proposed constitutional amendment is that it would make it more difficult for the Arkansas General Assembly to increase our tax burden. But that is far from the only good consequence of a supermajority requirement. In The Taxpayer Protection Amendment: Good For Taxpayers, Good For Tax Policy, I write about its many good consequences – not just for taxpayers, but for the budget process, legislators, and the general public.

In other news, the House passed the state budget transparency bill today, which we praised in an earlier Arkansas Alert. During the debate over the bill, Rep. Johnnie Roebuck referred to that research from the Advance Arkansas Institute today on the floor: here's the video (about 22 minutes into the session).

The virtue of procrastination

Our state legislature currently faces a long menu of tough decisions this session, including reconciling tax relief with responsible budgeting, revamping our criminal justice system, deciding whether to increase funding for highways, redrawing congressional districts, and addressing the debt in our unemployment trust fund. But I think the most important thing that the Arkansas General Assembly can do this session is: nothing. In my new paper, The Most Important Thing The Arkansas General Assembly Can Do in 2011: Nothing, I explain how, in at least one respect, it is crucially important this session that the state legislature does nothing at all. If you want to know what very important public policy the legislature should take no action at all on this year, click the link above.