Independence Day, 2005

This column publishes every Sunday through Thursday after noon (sometimes even before; maybe even after sundown on busy days) U.S. Central Time except whenever a significant national holiday falls on the Monday through Friday associated with the otherwise-usual publication on the previous day (unless it is Independence Day or Christmas when it is the day on which the holiday is observed bu the U.S. government). In my opinion, there are five of these: Memorial Day, Independence Day, Veterans' Day, Thanksgiving Day, and Christmas.

With Monday, July4 being Independence Day, I invite you to explore the link above.

Court decision threatens private property in Louisiana

What mischief could the U.S. Supreme Court decision that declared a political subdivision could expropriate private property for any “public use” create in Louisiana? As it turns out, plenty.

There exist two kinds of expropriation in Louisiana, a “regular” process that first requires a court process to establish need, then value of the land to be expropriated, before action can take place, and an expedited process known as “quick take.” The latter allows work to begin as soon as need is established, while negotiations continue for the appropriate price to be paid.

Art. 1 Sec. 4 of the Louisiana Constitution outlines the general parameters for expropriation in its discussion of the right to property ownership by Louisiana citizens. Title 19 of the Louisiana Revised Statutes defines the process of regular expropriation. Governments are allowed to employ the regular means unless they are granted “quick take” ability in the statutes.

The general statute for quick take expropriation comes from RS 48:441 and subsequent sections. These refer to the state’s Department of Transportation and Development’s ability to expropriate for state purposes, but what generally happens through the statutes is when a local government wishes to have such powers, the statutes connect the specific subgovernment to this part of the statutes, noting any exceptions. For example, the specific statute pertaining to quick take expropriation for Shreveport and Bossier City starts at RS 19:121 and through subsequent sections.

The Supreme Court decision becomes problematic because Louisiana generally allows regular expropriation for any “property” and the Constitution states “Property shall not be taken or damaged by the state or its political subdivisions except for public purposes” (emphasis mine). In essence, the decision now makes anything a government wants a “public purpose.” (I’m not a lawyer much less one that specializes in this area; if anybody out there with expertise in the area would like to comment here, please do.)

The timing was nice for this since it happened right at the end of the legislative session. Absent a special session, the door remains wide open for Louisiana governments to abuse this power for another year. Even longer would take a constitutional amendment, a surer way of protecting the people’s rights than by statute.

Of course, this presumes that state lawmakers are of a mind to try to strengthen property rights as a result of this decision. That presumption may not be a winning bet. Bills expanding local quick take legislation, for example, have passed in each of the past three regular sessions, and many more were introduced. Many local lawmakers who have the attitude that government, instead of creating the conditions for economic development by the private sector, should actually drive economic development, will put pressure on legislators and the governor not to limit this newly and vastly expanded power.

Worst of all, the quick take legislation already on the books can allow considerable damage to occur in a year. Potentially, property rights could be run roughshod over in a widespread fashion very quickly with lasting damage. What if the city loses the lawsuit over strip clubs, bond money, and public parks? Will it decide to open a publicly-owned strip club wherever it pleases?

Not in Louisiana, you may say? For doubters that the strong pro-property feelings of Louisiana citizens may not get translated into policy, the following note I received in response to the Sep. 16, 2003 column I wrote for FAX-Net Update, in which I wrote state Sen. Max Malone, then running for reelection, rightly looked askance at some uses of quick take. The writer (son of a former mayor) then and now, today being sworn in again, sits on the Bossier City Council and refers to the city’s attempt to use quick take legislation to build a new overpass:

How is the denial of quick take "choosing the people's interest over the elite"? The people are concerned about traffic woes first and foremost and several greedy individuals are denying the "people" the infrastructure improvements that they badly need.

(He then goes on to level what he intended to be insults about me, classy, temperate guy that he is, but that’s potentially a subject for a future posting unrelated to this one’s topic.)

In other words, if people try to use the regular process to protect themselves from the unlimited, coercive power of government concerning their property, they are “greedy” in the mind of this lover of big government power. His attitude proves why we do need to worry about this decision.

Hightower flunky fails to persuade

Attempts to distort facts don’t merely come from the top of Shreveport Mayor Keith Hightower’s Administration, they come from his underlings, too. City lobbyist Michael Wainwright affords us just such a glimpse (again) in his comments about state Sen. Max Malone’s actions regarding appointments to various state boards.

This past legislative session Malone sponsored an amended bill to bring more state control over a state body that had become a breeding ground for Hightower patronage, the Caddo-Bossier Parishes Port Commission. Wishing to reduce the weight of Shreveport control over the body (united, the city’s appointees can compel the board to do things), Malone, who has constituents equally in Caddo and Bossier Parishes, wanted to allow area legislators to nominate people to serve on the boards which then local officials could pick and also to even out the geographical representation on the board. Assisted with amendments by state Rep. Mike Powell, the bill would have.

However, Hightower loyalist Rep. Cedric Glover led the charge to stop it. Traditionally, members of the Legislature defer to others when bills deal with local matters. While area senators and Bossier House members agreed with the amended bill (as did all local government authorities except Shreveport), Glover rallied Caddo Democrats in the House to oppose it and it was defeated because of this show of area delegation disunity.

Thus, Malone prevented reappointment of two Hightower lieutenants to various boards and Lindy Broderick, lobbyist for and officer of the Shreveport Chamber of Commerce, to the Red River Waterway Commission. (Broderick's denial was because the Chamber did not lobby hard ennough for his bill, Malone said.) Generally nominees are approved in the Senate unless a senator from the area concerning the appointment objects, which Malone did.

This use of power by Malone irked Wainwright, who has been serving on the Port Commission about two years past his term expiration because Hightower was afraid to reappoint him (there is no senatorial check on this one; Hightower was scheduled to have the renomination vetted during yesterday's City Council meeting). Wainwright, whose thin skin has driven him to write facile parodies of leading Hightower critic Lou Gehrig Burnett’s FAX-Net Update, tries to excoriate both the Shreveport Times which supported Malone’s bill and Malone himself.

First, he presents to us a straw man argument concerning the goal of Malone’s legislation: “Any notion that transferring the authority to name commissioners to area legislators would make the board less political should now be put to rest.” Wrong: the process of selection is an entirely different matter from the operation of the board and that was not the purpose of the bill; it only intended to broaden and make more representative the political process of appointment. The selection process always will be political; that’s why a governor appoints and the Senate confirms, in the Red River Waterway Commission case for three members.

Thus, his syllogistic error moots entirely his next comment that Malone himself is being inconsistent by his using political power to block Broderick’s appointment. Again, the position taken by Malone and The Times is not what Wainwright asserts that it is, and in fact may be best summarized by words from a Times editorial: “Broadening the appointing process with legislative nominations … allows greater public scrutiny over the selection of commissioners, allowing taxpayers to consider qualifications and potential conflicts of interest.”

In short, the argument that Wainwright misses and does not address is, as The Times wrote, that the present system “opens the process to potential criticism about cronyism.” But Wainwright has even greater rhetorical folly to commit:

Apparently the senator believes only those who embrace his legislative philosophy of obstruction and negativism are entitled to lobby the legislator. Under SB 333, as proposed by Malone, two of his nominees would have been on the nine-member Port Commission. What kind of independent judgment do you think they would have been able to exercise?

Of course, what Wainwright sees as “obstruction and negativism,” which probably refers to Malone’s efforts put a brake on the building of the taxpayer-injurious publicly-owned convention center hotel, sensible citizens see protecting themselves against a city administration that disregards their best interests. And this statement shows us that if any inconsistency exists around this issue, it comes from Wainwright himself. According to him, Malone would have had some (but not sole) input into the nomination process of two of nine members corrupts the independence of the commission; but then how are we to view the fact that Hightower now has sole appointive power over five (a majority) members? On the Port Commission, what kind of independent judgment do you think Michael Wainwright can exercise?

By the tone and content of this letter, the answer is pretty clear: none. And its arguments and logic once again prove that attack dogs may make a lot of noise, but that’s all they can do.

Last days of Legislature = wackiness

Lots of confusing yet interesting legislation gets passed in a session of the Louisiana Legislature, especially towards the very end, and 2005 was no exception. In fact, it might have been made even more interesting in that this was the first “hybrid” session that focused on money matters but also allowed some (5 per legislator) general-interest bills and unlimited local bills.

This recipe for unintended consequences coughed up a couple of good examples from northwest Louisiana. State Rep. Mike Powell’s HB 338 started out as an attempt to simplify standards regarding the assessment of distances from alcohol sellers to proscribed areas such as churches and schools. State law says 300 feet as a person travels; Powell wanted to amend it to allow municipalities to use as an alternative the simpler 300 feet as the crow flies.

The problem came when in the last month of the session the U.S. Supreme Court ruled that in-state and out-of-state wineries could not be treated differentially by state law in their abilities to ship wine. This meant that anybody in Louisiana could get wine shipped directly to them from anywhere. This spooked liquor wholesalers in Louisiana which fought for an amendment to get any sales to restaurants or stores to go through a wholesaler. In essence, direct sales coming from anywhere could have bypassed wholesalers for these large-volume buyers (individuals’ ability to order and have wine shipped were unaffected). Sen. Edwin Murray complied, and the Senate bought it, and the House on concurring with the Senate’s changes.

However, Louisiana’s smaller wineries have trouble getting wholesalers to carry their product, and now within the state they would lose the ability to ship directly to stores and restaurants, so their cost of business has gone up dramatically and may put them out of business. Powell and practically everybody else were unable to guess the effects of the bill, amended and passed in the last week of the session. If Gov. Kathleen Blanco signs it, she better send a message out to wholesalers that in exchange for the protection from competition they think they’re going to get they had better be awfully accommodating in stocking Louisiana wines; 2006 is a whole different chance to change the law.

It’s one thing to slip up on unintended consequences in a quick session where information can be hard to come by, but it’s another to consciously sow the seeds of sabotage in your own bill. Sen. Robert Adley brought that problem on himself and his presumed beneficiary, the Bossier Parish Levee Board, with his handling of SB 6.

The bill made the composition of the Board more manageable and inclusive by expanding it to an at-large, additional appointment to represent the whole parish. But, as a favor to Sen. Francis Heitmeier who served with Adley on the conference committee empanelled to resolve differences between the House and Senate versions of the bill, he assented to Heitmeier’s inclusion of an amendment that, in effect, quintupled the salary of the Orleans Levee Board President, and pal of Heitmeier’s, Jim Huey. This looked really good after the Board just lost a suit for $45,000, the winning plaintiff against blaming Huey for the incident.

Adley failed to mention the potential salary boost in getting unanimous approval in the Senate a day before the session’s end. But Rep. Warren Triche, among others, smoked it out in the House, and perhaps the lawsuit lay behind the House’s eventual rejection of the conference report, killing the bill for the year.

There, acting in the stead of Adley to get the bill passed was Rep. Billy Montgomery, who argued that the money to pay for the increased salary would be borne by Orleans taxpayers alone. But that was a rather puerile line of persuasion; lawmakers should turn the other way while bad policy is being made because it’s not in their district?

Adley eventually succeeded in his own hijacking of a bill to get the change enacted, but Adley, a veteran of many years in the Legislature, showed questionable political skills on his original bill. Either he was oblivious to the controversy behind the Orleans Levee Board or he knew and maybe thought he could slip it through which, given the suit’s publicity, was a poor judgment. Why he went so far out on a limb for Heitmeier is another interesting question; it seems that such a big risk would require a big reward, something Heitmeier was in position to give as chairman of the Senate Finance Committee which handles the budget matters.

Implementation details may yet provide health care hope

In terms of financial overhaul of state health care costs in Louisiana, Gov. Kathleen Blanco has done little to achieve this. What then of her efforts to tackle the regulatory and administrative side of things?

One new law reorganized the provision of services, particularly in the intake of clients, to promote efficiency. However, the law also had a more ominous impact, to define into law the idea that the state should force people close to bankruptcy before they are allowed access to taxpayer-funded health care. In other words, somebody defined as “poor” gets all kinds of free care that only the rich could afford on their own, while everybody else gets much less assistance, if any, from the state, putting a huge burden on their resources. Generally, this means that before the state pays much to a family struck by catastrophic health costs that no private insurance in the world can cover costs adequately it mandates the wiping out of any but the most rudimentary amounts that can be set aside for living and retirement purposes.

The proposed law that encourages nursing homes to get into reimbursed residential care does not in any way shift the balance from institutional to home care, heavily tilted in Louisiana in favor of nursing homes (82 percent of long-term care dollars going to them as opposed to the national average of 67 percent). The only substantive favorable change here came with the funding of 100 additional home-based care slots (which represents about 1 percent of the total backlog of eligible people waiting for those slots – many of whom will die or be forced into much more expensive nursing home care paid by taxpayers long before their names come up to actually get these much less expensive services).

Another proposed law at least will help those with less-complicated health needs. However, an opportunity exists to enable this law to provide much greater services to clients and much greater savings for depending upon the rules developed by the Department of Health and Hospitals that address what "non-complex" medical tasks in-home workers can do and set up training parameters and a registry for in-home workers.

For example, the tasks associated with caring for a mobile (either by self or by electric wheelchair) ventilator-dependent person are not tremendously demanding except in extreme emergency situations. Indeed, such skills are taught to the patients and family members as a matter of course. Currently, the state allows payment (and insurance companies follow) only for licensed practical nurses or even more-qualified personnel to care for these individuals. But if personal care assistants trained in this area were allowed to be reimbursed, savings to families, insurance companies, and taxpayers could be substantial, and more skilled nursing personnel could be deployed to cases where their particular skills are more in demand.

Naturally, the state would have to set rigorous requirements, perhaps create a menu of different competencies that it can test and certify people in. As long as there is creative thinking and no relaxation of standards, it is this aspect of Blanco’s health care reform plans that holds the greatest, even if it is in an absolute sense small, potential for genuine improvement of the system for all concerned.

Partisan Legislature bodes ill for Blanco

With the regular legislative session for 2005 now over, some observers have noted that it may qualify has the first truly “partisan” session in a long time. One very obvious reason explains this – Republicans in the Legislature have reached a critical mass.

Over 25 years ago, Louisiana had the smallest proportion of Republicans in its legislature than any other state. A past political culture that allowed some conservative tendencies to flourish in the Democrats and a relatively large black (historically non-Republican) population account for some of this, but the main reason came from the nonpartisan blanket primary system installed over three decades ago. Without being forced to do the impossible by winning a Republican primary against true conservatives, pseudo-conservatives could continue to get elected without shedding the Democrat label.

But national trends favoring Republicans have proven unstoppable even against these defenses and, for the first time in over a century, as a result of the 2003 elections the minority party in Louisiana had better than one-third representation in each chamber. (In fact, today Louisiana’s minority is only the 17th proportionally smallest of all the states in the lower chamber, and 26th for the upper chamber). This became important especially in 2005 because of the fiscal nature of the session (currently, during even-numbered years the Legislature cannot initiate new taxes) allowing for new taxes which requires a two-third’s approval.

In other words, referring to a partisan identity when legislating makes sense only when something may be gained by operating through that lens. If acting as a partisan brought no gains (because there were insufficient numbers to make the promotion of the identity something that could bring benefits), legislators had little incentive to do so.

And research concerning political parties shows that, in an environment of general lacking of party cohesiveness, once one party begins to organize, the other soon follows. Thus, last month, after years of having a Republican Delegation in the Legislature, Democrats have followed suit. Legislative doings will take on an increased partisan tone as a result.

Of course, this constitutes bad news for one person in particular, Gov. Kathleen Blanco. She tries to fob herself off as more conservative than liberal to win votes, but her tax-and-spend ideology belies that image. A vocal Republican minority that, if it sticks together (of which there is no guarantee) stays true to its principles will highlight the fact that Blanco is not what she tries to convey. Such is the lesson her uninformed press secretary Bob Mann needs to learn; Republicans will continue to try to thwart Blanco not because they are partisan and she supposedly is not, but because she is wrong on the issues.