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5.11.09

LA earmark procedures need changing, not elimination

In its deliberations, an interesting request came from Treasurer John Kennedy for the Commission on Streamlining Government to pursue: the end of earmarks as we know them. Kennedy argued that a Commission recommendation be to eliminate them completely, arguing they allowed too much wasteful spending. Opponents countered that this approach threw the baby out with the bathwater. What’s the correct policy here?

First, note that this is a statutory matter, not a constitutional one. This is because the Louisiana Constitution grants the Legislature power to make appropriations (Art. X Sec. 7(D)(1)). Thus, to alter the Legislature’s ability to make such appropriations, it would take just a statute to do so.

Second, this would affect the theoretical principal-agent relationship between the state and local governments. In theory, local governments are entirely creatures of the state, created and assigned to perform certain tasks (with a few dozen of these entities granted extra latitude in doing so through the use of home rule charters). Thus, to surrender the power to transfer money to a local government for a purpose the legislature finds desirable impedes its ability to act as the principal.

Third, a conceptual distinction needs making between one kind of agent, local government, and another, the so-called “nongovernmental organization” (NGO) which is an entity not connected to government, probably nonprofit in nature, but seen as a vehicle by which to carry out state policy. That differentiation relies upon another theoretical principle in intergovernmental relations, known as “subsidiarity.” This idea argues that governmental functions should be performed at the lowest possible level, regardless whether the administering level has the power to do so independently. There is some history of subsidiarity concerning federal-state relations in America, exemplified by the (vastly de-emphasized) 10th Amendment.

However, there are 50 separate political cultures concerning state-local relations, and Louisiana’s history is weak in the practice of subsidiarity. For example, the state provides extensive services in health care through its charity hospital system, and with the majority of funding in elementary and secondary education. Especially since the 1930s, this notion has not played as strong of a role in policy-making as it has in many other states.

Applying these principles, some measure of earmark reform is possible and desirable by the Legislature. It would be too restrictive to completely ban the practice. It does serve the principal-agent purpose, and if there are “abuses,” the means have been implemented, at least by legislative rules, to ensure transparency which would assist in the real solution to earmarks considered wasteful, voter recognition of this and use of elections to replace offending legislators. (Not that this couldn’t be strengthened; the standards need to become a matter of law and perhaps made stricter.)

However, in regards to NGOs, the principal of subsidiarity would mandate that the state get out of that business. Since the NGOs are confined to local areas and perform functions assigned to local governments, those governments would be the appropriate ones by which to make such decisions. A statute limiting state earmarks to go only to local governments to perform tasks assigned to local government by Art. VI of the Constitution would be entirely appropriate, and should be pursued.

4.11.09

Democrats continue desperate tactics against Vitter

You can tell that Louisiana Democrats do not think much of their chances to defeat incumbent Sen. David Vitter when they continue to reinforce their only line of attack on him based on the strategy that he’s “evil.”

With the issues preferences of the Louisiana public solidly on his side (as well as his continuing to hold comfortable poll leads a year out from the election), Democrats have engaged in the age-old strategy of coming up with as many implausible accusations as possible and throwing them all at Vitter, desperately hoping some mud sticks that portrays him as some insensitive weirdo. The latest effort was a coordinated attempt to make Vitter appear, in the words of the Democrat operative, to “support a law that tells a rape victim that she does not have the right to defend herself.”

(It is shameful that Democrats took advantage of a woman with personal tragedy to try to score political points this way. More to the point, if Democrats continue this line of inquiry, they’re going have to agree upon how they regard Vitter’s temperament. Because he said he committed a “serious sin” and his phone number turned up on a list of calls received by an escort agency, although he never has confirmed this, it is suggested by his political opponents that he paid for sexual intercourse. So Democrats are hinting that the same guy who allegedly paid for sex also would countenance rape by an unwillingness to let women defend themselves from it? Doesn’t seem consistent if he’d go so far as to pay for it, implying he would not want to prevent rape – if he didn’t think so, why pay for it?. But trying to figure out how and why liberals think the way they do has baffled even the wisest, keenest, and best-informed observers for decades.)

Of course, as Vitter himself pointed out, opposing the amendment (that would set a precedent in the government’s ability to intervene in internal corporate relations) doesn’t prevent a defense against alleged crimes, and the amendment isn’t even necessary since the courts recently ruled in a universal way that in those kinds of cases they would be adjudicated in the U.S. courts regardless of whether they occurred on U.S. soil or whatever contractual arrangements apply. All the useless amendment really did was to prevent arbitration from being used in any legal circumstance for Defense Department contractors, increasing business for trial lawyers and costs ultimately to be paid by the American public. As Vitter also noted, even the Pres. Barack Obama Administration opposed the amendment initially, although after its successful passage has expressed neutrality about it. The empty amendment will have nothing to do with the ability of employees to seek judicial relief.

Stunts like this, creating an issue that doesn’t exist, to date seem the only trick in Democrats’ bag against Vitter. Perhaps the foreknowledge that a huge wave is building against their candidates in the 2010 elections is driving them to such longshot tactics. If this is the best they can do, a year from now Vitter will have cruised to an easy reelection.

3.11.09

Whining appointee proposes setting back LA ethics law

If there ever seemed to be a man unhappy in his voluntarily-accepted job, it is Frank Simoneaux, current chairman of Louisiana’s Board of Ethics. Proclaiming ethics administration has become “crippled”, dispassionate investigation reveals the only “crippling” threat comes from Simoneaux’s constant yawping in favor of interjecting more politics and favoritism and less professionalism into the process.

Naturally, Simoneaux complains, as he has for some time, about the changes brought a year ago to the functions of the commission he heads. Prior to his joining, the board’s powers were changed by removing its adjudication function, leaving only with the power to bring charges. Now administrative law judges decide, the products of which the law states must be accepted by the Board.

The advantages of such a system, considered best practice in the ethics administration literature, over the previous are legion and well-known: rather than have political appointees without any necessary legal training or following legal advice render decisions, randomly-chosen civil servants insulated from political forces with law degrees and specialized legal training in this area of law decide. It’s worth noting that, under the previous system, in no other place in Louisiana jurisprudence outside adjudication for civil servants did any one body have the power to be all of the prosecutor, judge, and jury.

How anybody could assert that the change could create such an inferior situation only can be explained by understanding the real motive behind it of the pursuit of power and privilege: bringing back some version of the previous situation would give more of that to appointees like Simoneaux. Wholesale revisions of the nature suggested by him clearly would not be in the public interest.

Regardless, this does not mean that some review and perhaps tinkering at the margins may not have any value. Simoneaux recommends that the Legislature request the Louisiana State Law Institute to review the current law. Why not? By the time the request is made next year and the Institute accomplishes it, there will have been enough time to render initial judgments on the workability of the new system.

Also, as suggested by the more temperate Board member Scott Schneider, perhaps the board could have more input on interpretations, rather than utilizing cases with actual controversy concerning the law. Finally, maybe the board could be given an expanded appellate role. Instead of mandating that it sign off on any decision, if a majority of it contests a ruling made by the initial three-judge panel, three of the four remaining judges could be impaneled to review the initial ruling.
But acquiescing to Simoneaux’s power-aggrandizing demands does not serve the goal of better ethics enforcement. If he’s so upset about all of this, perhaps he should heed the advice of House Speaker Jim Tucker and resign the post he thinks is so worthless. His expressed attitude indicates he won’t be missed by those interested in high ethical standards.

2.11.09

Current education course will reward LA and its children

Louisiana is jumping into the fray for some helpful federal money for elementary and secondary education – no thanks to entrenched special interests which would rather protect their own interests than see improvement in education, and to others who have the wrong idea about quality education.

This week, the state invites public comment on its plan for the “Race to the Top” program which could provide as much as $250 million for intervention mostly in troubled schools, and some for underperforming schools. Part of the proposal calls for the potential expanded use of a successful tool used in the past, charter schools.

Of course, this irks the primary protectors of the current below-mediocre system, teachers’ unions, as the charter school concept allows for greater administrative freedom that makes it more difficult for inferior teachers not only to get continual pay raises, as has been the recent norm, but even to keep their jobs. Turning a school into a chartered one doesn’t always immediately bring results because better tools have to be used effectively and do not automatically improve matters, but the state’s track record with them has proven they do bring improvement beyond what the traditional model does.

This means representatives of unions, whose job is to siphon as much taxpayer money as possible to as many members that do as little work as possible, have to resort to disingenuous argumentation to try to criticize this strategy. Thus, you get one flack saying that charter schools generally fared worse than traditional public schools in the state’s most recent accountability report card, as a tactic to try to discourage use of them in the plan and in any other situation.

But this slyly tries to deflect from the truth. It is true that, when comparing all charter schools to all traditional schools, that traditional school scores on the state’s accountability system exceed those of charter schools.’ However, the reason why practically every charter school exists is because they were abysmal-performers taken over by the state for that reason then switched to charter status. When comparing progress of charter schools to traditional schools of the same kind, in fact (in New Orleans since most of the state’s charter schools are there) you see much greater improvement with the charter schools. No matter how much special interests try to deny or obfuscate it, charter schools have worked better than traditional schools in improving the worst-performing schools.

Yet putting greed ahead of children’s learning isn’t the only threat to the success of the proposal. With its recently-implemented “career” diploma that lowers rigor in the classroom, concerned observers wonder whether the state’s new “dummy diploma” will be used as a strike against the application, signaling the state lacks seriousness in its accountability efforts and favors making politicians look good by pumping up graduation rates at the expense of actual learning. This can be avoided by having the Board of Elementary and Secondary Education at its next meeting by requiring graduates under this diploma meet the same Graduate Exit Exam standards currently in place.

If BESE does this right thing and also ignores the background noise from defenders of the past struggling system, with its current accountability program Louisiana stands a great chance of getting rewarded for its progress and the steadfastness behind it. This will make many children in the state the biggest winners of all.

1.11.09

LA must investigate fund use for legality, efficiency's sake

The greater the reform, the more time and effort it will take, and one step in the process of overhauling Louisiana’s incredibly inefficient long-term health care system should begin with discovering the proper disposition of investment gains from a key health care account.

Last week, the former head of the state’s Office of Citizens with Developmental Disabilities Bruce Blaney, who now runs a nonprofit agency, called for an investigation into the disbursal of funds from the state’s Medicaid Trust Fund for the Elderly. The account holds funds for eventual disbursement to Medicaid providers, and the balances before being used are invested.

Blaney claims that these earnings, in the neighborhood of $50 million annually, should be apportioned so that two-thirds go for nursing home reimbursement and a third to reimbursement of home- and community-based providers. Instead, he asserts that it all may have gone to nursing homes, a violation of an agreement between the state and federal government that was providing funds. Not only does the former head of the overseeing department, Health and Hospitals, confirm this split, but written documentation of it exists, in the form of a letter signed by both state and federal officials.

However, the current overseer of the fund insists that the agreement lapsed with the end of Gov. Mike Foster’s second term. But unless the letter specifically states this, that seems an incredulous interpretation. Blaney has asked the Legislature to look into this, arguing that perhaps $200 million or more was misallocated over the past several years as a result of this. At the very least, something like the Legislative Audit Advisory Council needs to investigate this before the end of the year.

Bolstering Blaney’s claim is that lobbying by the nursing home industry in 2003 tried to get a constitutional amendment adopted that would have dedicated all funds to the industry’s reimbursements. Why would this be necessary unless it was generally understood that the division as described in the letter was in place?

But if Legislature does not act, or it does and finds the facts do support Blaney’s view and it then does not provide redress, then those supporting the integrity of the agreement need to go further and bring suit against the state. Perhaps knowledge of this may focus the Legislature, which has a notorious bias on favor of institutionalizing care of the resource-poor elderly and of the disabled.

That bias is indicated already in many ways, such as by the extremely favorable funding formula that, years ago, was costing the state almost $100 million extra a year according to the Legislative Auditor (and which could be much higher now) which rather than changing, the Legislature subsequently put into law. Also, the Legislature has tolerated giving the industry $20 million a year for empty beds.

Some recent favorable signs have been coming that the Gov. Bobby Jindal Administration, facing huge potential future budget deficits in part caused by Medicaid spending, is ready to stop the gravy train for institutions in the area of long-term care. It needs to add this resource to its efforts to increase efficient use of taxpayer dollars in this policy area, a move that likely will improve care and quality of life for program clients.