2003 Columns

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Capitol Correspondent - the NCC Column 2003

Diocesan Newspaper columns by James R. Cunningham

New Legislature Under Way for 2003 (1/3/03)

Self Sufficiency as a Measure of the "Truly Needy" (1/17/03)

Legislature Begins with a Low Number of Bills Introduced (1/31/03)

Important Bills Under Consideration (2/14/03)

Bills of Concern (3/14/03)

A Third of the Legislative Session is Complete (2/28/03)

Legislature at Halfway Point (3/28/03)

Survey Informs on Cuts, Taxes (4/11/03)

Courage Behind LB 294 (4/25/03)

Session Winding Down With Budget Focus (5/9/03)

Showdown Over Budget (5/23/03)

Legislature Ends Without Extending (6/06/03)

Legislation Commentary (6/20/03)

Last Detail on Legislation (7/4/03)

Legislative Odds and Ends (7/18/03)

Trip Exhilarating in Many Ways (8/15/03)

Negated Budget Decision Restores Health Coverage (8/29/03)

Progressive Change Needed in State School Aid (9/19/03)

Items Saved for the Season (10/3/03)

Major Mental Health Reform (10/17/03)

Vatican II's Words of Wisdom (10/31/03)

Duality of Faith and Citizenship (11/14/03)

New Ag Statement Impresses (11/28/03)

LB 671 Not Only About Disposition of Remains (12/19/03)

Capitol Correspondent for 01/03/03

New Legislature Under Way for 2003

The 98^th Nebraska Legislature will begin its two-year journey into history next Wednesday, January 8 at 10 a.m. in the George W. Norris Chamber on the west side of the magnificent rotunda of the State Capitol Building. That’s the first Wednesday after the first Monday of January, as prescribed by the state constitution.

The 2003 regular session of the unique one-house body of 49 citizen lawmakers will last 90 working days, unless extended. An extension is a rare happening, and it’s also rare for a session to conclude any earlier than the 90^th day. A preliminary calendar issued by the current Speaker of the 97th Legislature, Senator Curt Bromm of Wahoo, projects next June 2 as the 90^th day in 2003.

It will be a long and difficult five months, made especially so by the continuing serious dilemma engulfing the state budget. It is in this regular, 90-day session that the 98th Legislature must establish the state budget for the biennium beginning next July 1 and running through June 30, 2005. A revenue shortfall of nearly $675 million is currently projected for just a continuation budget of some $5.5 billion for the biennium. That shortfall, affecting that budget, is a really big problem for this Legislature, a problem that will create a lot of stress and strain.

This Legislature also will have a second regular session, scheduled for 60 working days, in 2004. In addition, special sessions, called when there are "extraordinary occasions," are also possible.

Legislative Leadership

The first day of every new Legislature is often the most exciting and compelling in our estimation. Along with the rightful amount of pomp and ceremony, the legislators take up the highly important business of electing their leaders, including the Speaker and chairperson of the Executive Board, as well as the chairpersons of the various standing and select committees.

Senator Bromm looks to be a shoe-in for continuing as Speaker, but the incumbent chairman of the Executive Board chose not to run for another term in the Legislature, so that key post, which oversees a great deal of the internal, administrative aspects of the system, is open. Several of the incumbent committee chairpersons will be re-elected to their posts, but there also are some open positions and some shuffling is likely to occur as well. Any posts that feature competition are decided by secret ballot among the 49 lawmakers, a process that typically provides a bit of early intrigue.

Committee Composition

After the leaders are elected and the other ceremonies are concluded, the Committee on Committees, composed of the elected chairperson and members selected by three caucuses, generally organized along the state’s congressional district alignment, meets to determine committee assignments for all the legislators, other than the Speaker and Executive Board chairperson. Although most committees will have several holdover members, each committee will have a different composition of one extent or another.

Forty-four lawmakers who start their service in the 98^th Legislature on its opening day served during all or part of the 97^th Legislature, which not only featured the regular sessions in 2001 and 2002, but three special sessions as well. That means that five legislators are considered "rookies" or the "freshman class." Those senators and the districts they represent are as follows: Senator Mike Friend (10), Senator Mick Manes (18), Senator Arnie Stuthman (22), Senator Jeanne Combs (32), Senator LeRoy Louden (49). In addition, Senators Ray Mossy (3) and Joel Johnson (37), who were appointed to fill vacancies during 2002, essentially are new to the process as well.

We will continue our practice—already 26 years old and counting—of using this column in the diocesan newspapers to describe and comment on bills and other legislative matters. In addition, information about the Nebraska Catholic Conference’s positions and perspectives on legislation will be available on its website: www.nebcathcon.org. Also, the State operates an official website of the Nebraska Legislature: www.unicam.state.ne.us.

Time for Prayer

As has been our custom for nearly 20 years, we acknowledge the beginning of a new session of the Legislature by offering a special prayer. It is adapted from an invocation originally presented by Most Rev. John Quinn, when he was Archbishop of San Francisco, at a meeting of the National Conference of State Legislatures.

On behalf of the members and staff of the 98^th Nebraska Legislature, First Session, Let Us Pray:

"Heavenly Father, we are pausing in the midst of turbulent times to be aware of you.

"Let those who represent us be truly aware of your presence. Help them to conduct an opinion poll of your wishes in regard to themselves and all those they represent.

"Grant them the ability to know that you genuinely love them. In their quiet moments, allow them to be proud of the profession they are in. Help them to be calmly in control of their lives and not be paralyzed by insecurities or driven by ambition, the value of which they may or may not have reflected on for some time. Grant them the flexibility to grow, the resiliency to accept the setbacks, and the fortitude to adhere to convictions in which they believe.

"If they have the label of conservative, given them the tolerance at least to study the changes that are sweeping society. If they are thought of as liberal, make them perceptive of what is available in existing structures. If they are moderate, keep them from confusing moderation with lethargy.

"May they always be mindful of the awesome nature of their vocation—a position in which they profoundly affect so many lives. May they have the common sense to recognize that good, truth and beauty, no re-election, are wise priorities.

"Never allow them to be carried away with their own importance. Grant them the serenity of realizing that the crisis of confidence in government is not current, but as old as government itself.

"Let them never forget that this world’s power pales in significance when measured against the treasures of eternal life which you have promised us. May they use whatever influence and skills they have for your greater honor and glory for the welfare of the people. Amen."

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Capitol Correspondent for 01/17/03

Self Sufficiency as a Measure of the "Truly Needy"

We read recently that the American Dialect Society voted "weapons of mass destruction" Word of the Year for 2002.

We didn’t realize there was such an honor. Obviously phrases are just as eligible as individual words.

Interestingly, that same phrase also made it onto the 28^th annual Lake Superior State University list of blacklisted words,

for being guilty of repetition, misuse and general uselessness.

For 2003, the phrase "the truly needy" might be in the running for one or both of the aforementioned recognitions. It’s likely Nebraskans will hear or read that phrase a lot, especially over the next five months, during the Nebraska Legislature’s session. As the Governor and the legislators determine how to deal with the serious budget deficit, and particularly as they consider further cuts to Medicaid and other support programs for low-income working families and the disabled, and perhaps even to all programs of public assistance, they will often be emphasizing a desire and intent to protect "the truly needy." For the most part this emphasis will be truly sincere. Nobody wants to harm "the truly needy," even in doing what has to be done during these fiscally difficult times.

But who are "the truly needy"? What standards determine where the line is drawn between the truly needy and the not so truly needy?

Some variations are encompassed by the base phrase by the way. At times you might hear "truly poor" or "genuinely poor" or perhaps even "legitimately impoverished." Those are part of the same spin.

Standards Not Realistic

Should "truly needy" be determined by the federal government’s poverty standard? Intuitively that seems logical and reasonable. For example, for a single mom, one preschooler and one school age child living anywhere in Nebraska the federal poverty line is annual income of $15,020.

Obviously, that’s not realistic. Most studies conclude that it is based upon an outdated methodology and that it seriously underestimates the impact of societal changes. In other words, the case is strong that there are families with incomes above the federal poverty line that are still "truly needy."

Perhaps the standard for determining "truly needy" should be so simple as full-time, minimum-wage employment. Typically that figure is said to be slightly above $13,800 per year. That’s even less than the federal poverty standard, and therefore even more unrealistic.

How about using the equivalent of maximum ADC cash assistance plus the value of food stamps? Those are generally regarded as subsistence grants. For the family of single mom with one preschooler and one school-age child, that amount is $8,640. That’s the lowest of all, considerably less than the two previous approaches.

Perhaps the approach to take is to rely upon the separate eligibility levels that govern each particular program. But that’s mishmash, and those levels already cause debates over eligibility.

The conclusion, as well as the reality of the debate, seems to be that "truly needy" is in the eye of the beholder. Whoever use the phrase controls it. It’s highly subjective. Those with the greatest clout in the legislative process can dictate who "the truly needy" are. It probably will depend on the level necessary to help balance the budget.

New Report on Self Sufficiency

This session, Nebraska’s policy makers have available to them a new resource that should be relevant and useful in making these budget cutting decisions. Released late last November, The Self Sufficiency Standard for Nebraska is a report that shows, on a county-by-county basis, and accounting for variations in family composition, what it actually costs to meet basic needs without government or private-sector assistance. In other words, it calculates the bare-minimum costs for housing, food, transportation, childcare, health care, clothing, household items, utilities and federal, state and local taxes that a working family faces. The flip side of these costs is the income needed to be economically self-sufficient.

The report represents collaboration between a national organization, Wider Opportunities for Women, a researcher at the University of Washington, and the Nebraska Appleseed Center for Law in the Public Interest, which has a distinguished record of advocacy for low-income families and children in this state.

As the report states: "An uncertain economy, major changes in welfare policy, major changes in programs that help support working families and the state budget crisis have given new urgency to the question of economic self-sufficiency for Nebraska’s working families."

Using the example of a single mom with a preschooler and a school-age child, the self-sufficiency income standard, according to the report, is $37,357 in Douglas County; $34,364 in Lancaster County; $24,276 in Adams County and $21,592 in Dawson County. That’s an hourly wage of $17.69, $16.27, $11.50 and $10.22 respectively.

Few, if any, policy makers will accept this new self-sufficiency standard as the basis for identifying "the truly needy" in Nebraska. While it is probably more realistic than the other standards mentioned, because they draw the line too low, most policy makers will view this as a line that is too high. Moreover, it would dictate expansion of economic supports, something that can’t and won’t happen in this budget climate.

However, this new report underscores the vital role that support programs play in mitigating the disparity between actual income and self-sufficiency. When the budget is facing cuts, this information should be part of determining priorities. Policy makers will be responding irresponsibly if they fail to consider it.

Significant Bill

Closing on another note. There will be a number of significant bills during this legislative session; certainly among them will be LB 46, proposing the Community Corrections Act and the Correctional System Overcrowding Emergency Act. The title tells it like it is: Nebraska’s prison system is seriously overcrowded and greater emphasis on community corrections is a reasonable and necessary way to relieve it.

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Capitol Correspondent for 01/31/03

Legislature Begins with a Low Number of Bills Introduced

During the period of 10 legislative days prescribed by the rules of the Nebraska Legislature for introduction of new legislation, state senators serving in the current session introduced 793 bills. It has been reported that the figure is a five-year low for the first session (odd year) of a new Legislature. If that is a sign of restraint on the part of legislators, then it is likely attributable to the fact that issues related to the State’s budget dilemma are expected to dominate the action.

Other than the fact that the Legislature’s rules require that all but a narrow category of bills have to have a public hearing in front of one of the standing committees, and that process takes a hefty chunk of time, the number of bills isn’t particularly significant; certainly not as significant as the merits of the measures, or lack thereof.

The Legislature is a forum for ideas. Legislation stems from ideas, along a spectrum that includes minor, technical, clean-up changes in current state laws on one end, and new, radical, major policy changes on the other end. They all fuel the process.

New and Carryover Leadership

The basic organization for this Legislature, the 98^th in state history, was established on the opening day. As expected, Senator Curt Bromm of Wahoo had no opposition for the post of Speaker and was affirmed by unanimous acclamation. The post of chairman of the Legislature’s Executive Board did not have an incumbent; the outcome was that Senator Pat Engel of South Sioux City was elected, 33-15, over Senator Dennis Byars of Beatrice.

Probably the most intriguing scenario of the committee leadership elections was prompted by a decision on the part of Senator David Landis of Lincoln, who is the body’s second-most tenured member. After several consecutive sessions as chairperson of the Banking, Commerce and Insurance Committee, Senator Landis decided to seek to head the Revenue Committee, for which there was no incumbent. Since the Banking Committee came first in the line of elections, Senator Landis let his leadership ride on the outcome of the vote for Revenue Committee. In the closest contest of all, Senator Landis edged Senator Pam Redfield of Omaha, 25-24.

Another committee without an incumbent chairperson was the Agriculture Committee. Senator Bob Kremer of Aurora was elected to the post, defeating Senator Phil Erdman of Bayard, 39-9. The open Banking Committee chair went to Senator Mark Quandahl of Omaha, who was unopposed.

Only one incumbent chairperson failed to prevail in a bid to continue in the same post. Senator Matt Connealy of Decatur narrowly lost to the challenge of Senator Floyd Vrtisak of Table Rock; the vote was 25-23. Other close elections—the process is by secret written ballot—were Trenton Senator Tom Baker’s 25-23 win over Senator Nancy Thompson of Papillion for chair of the Transportation and Telecommunications Committee, Lincoln Senator DiAnna Schmiek’s 26-22 win over Senator Adrian Smith of Gering for chair of the Government, Military and Veterans’ Affairs Committee.

The following legislators were re-elected without opposition to committee leadership posts they previously held: Senator Roger Wehrbein of Plattsmouth, Appropriations; Senator Ron Raikes of Lincoln, Education; Senator Ray Janssen of Nickerson, General Affairs; Senator Jim Jensen of Omaha, Health and Human Services; Senator Kermit Brashear of Omaha, Judiciary; Senator Ed Schrock of Elm Creek, Natural Resources; Senator Paul Hartnett of Bellevue, Urban Affairs; and Senator Elaine Stuhr of Bradshaw, Retirement Systems.

Information regarding the Legislature’s committees, including full committee memberships, as well as a lot of other information about legislation and legislators, can be obtained from the website operated by the Unicameral Information Office. It’s www.unicam.state.ne.us. That website can also be linked from our Nebraska Catholic Conference website, www.nebcathcon.org/legis_issues.htm, which also includes information about bills and issues of interest and concern for the Conference.

Bad Public Policy

One bill that is already firmly entrenched on the Conference’s "radar screen" is LB 299, introduced by Senator Marian Price of Lincoln and co-sponsored by Senators Schimek, Byars, Hudkins, Stuhr and also Seantor Jeanne Combs of Friend. The bill proposes to mandate that all health insurance plans, programs and contracts must, if they provide any prescription drug coverage at all, cover contraceptive drugs and devices. The same mandate would apply to outpatient contraceptive services as well.

The health insurance industry generally opposes LB 299 because governmental mandates constitute bad public policy insurance-wise, relative to the marketplace. The Nebraska Catholic Conference opposes LB 299 because it’s bad public policy religious-freedom-wise. It is coercive legislation that would force all insurers, employers and individual consumers who have any objection to contraception on the basis of religious convictions and/or moral values to either violate their convictions and values or forego drug coverage altogether, or perhaps even health insurance coverage altogether. Adding to the concern is the fact that most contraceptive drugs function as early abortions, as a secondary, if not primary, mode of operation.

LB 299 purports to provide conscience protection for religious institutions and "religious employers". However, this part of the bill is vague and ambiguous, if not totally incoherent; narrow and inadequate, if not totally disingenuous.

The Legislature’s Banking, Commerce and Insurance will make the first determination regarding LB 299. The date for the committee’s public hearing on the measure is still pending.

Capitol Correspondent for 02/14/03

Important Bills Under Consideration

The session of the Nebraska Legislature now underway at the State Capitol is heavy into a mode of operation that splits activity between floor sessions of the full body of 49 lawmakers in the mornings and sessions of the standing committees in the afternoons. As a collective body, the Legislature is moving bills through the three stages of floor action—General File, Select File and Final Reading—while the committees are continuing to hold public hearings on bills assigned to them, and also making decisions in executive sessions about what to do with bills that have had hearings.

Perhaps like never before, money lurks at or near the core of most bills this session. The State is facing a serious budget deficit, which means that spending has to be cut or revenue has to be increased. As a corollary, numerous special interests, including state agencies and political subdivisions, and private enterprises as well, are looking to create policy or modify policy or keep policy unscathed in the interest of coping with economic woes.

In a previous column we pointed out "the truly needy" as an often-heard phrase during these financially challenging times. Here’s another one: "fiscal flexibility." Governmental agencies want all the "fiscal flexibility" they can get from the Legislature, in order to withstand and control budget cuts.

For example, LB 414 proposes to change a "shall" to "may" and thereby eliminate the current requirement that the Department of Health and Human Services Finance and Support conduct a market survey of child care rates every two years and use that information to set reimbursement rates for providers of child care for low-income families at between 60 percent and 75 percent of the market. If this bill goes through, the agency will have discretion to drop reimbursement rates even lower, thereby cutting back some on subsidized child care. That result will place more pressure on low and limited-income families.

Some Bills of Interest

Following are sketchy summaries of just a few of the many bills that the Nebraska Catholic Conference is already monitoring.

The idea of reinstating the sales tax on home-prepared food is back again, of course. LB 368 and LB 387 both propose this. Neither bill includes the indexed income tax relief that typically has been a part of past legislation of this type. Under LB 368, the revenue generated from taxing food presumably would go directly into the General Fund. Under LB 387, it would be earmarked for a newly created "School Aid Distribution Fund." Also, there’s LB 57, which proposes to reinstate the tax, but only on "bakery items, candy, snack foods and soft drinks."

Also on the subject of food, LB 383 proposes to restore food-stamp eligibility for any individual who has been convicted of a felony involving the possession, use, or distribution of a controlled substance, but who is participating in or has completed a substance abuse program. Federal policy eliminates food-stamp eligibility for such individuals, but also allows states to "opt out" of that ban. LB 383 would add Nebraska to the list of 31 states and the District of Columbia that have already opted out. The bill would not have an impact on the state budget, because food stamps are federally funded.

LB 411, introduced on behalf of the Governor, proposes some additional cuts in medical assistance coverage (Medicaid) for qualifying low-income Nebraskans. Although they are relatively narrow in scope, these cuts would follow on the heels of cuts previously made, during the last regular session and the special session that followed soon thereafter. One of the newly proposed cuts is especially lamentable; it would eliminate "presumptive eligibility" for pregnant women and children, which could delay pre-natal care.

LB 689 is a nuisance bill. It proposes to mandate that owners of all religious, educational and charitable property that seek exemption from property taxation, whether initially or any renewal thereafter, would have to submit valuations of the property for which the exemption is sought. This is a faulty idea. If a property is properly taken through the process and meets all the statutory and administrative requirements and conditions for exemption, then its value is unnecessary and irrelevant, because there is no taxation. What’s more, a mandate of even estimating valuation for what typically are some particularly unique and highly complex properties—churches, schools, hospitals, nursing homes—when the property already has been determined to qualify for exemption, would be a huge waste of time, energy and resources, for both the owners and the government officials as well.

Presumably, a purpose of LB 689 is to engender and percolate a general public attitude that points out exempt entities as being responsible, at least in part, for high property taxes. To the contrary, it is irrefutable that tremendous social advantages and an enhanced common good arise from the presence of religious, educational and charitable entities within communities.

Inexplicably, and without sufficient justification in our opinion, (no one, other than its sponsor, testified in support of the bill at its public hearing, for heaven’s sake) Senators Tom Baker, Patrick Bourne, Ray Janssen, David Landis, and Ron Raikes, joined the introducer, Senator Pam Redfield, in sending this unwarranted legislation from the Revenue Committee to the full Legislature. We hope that’s the end of it. A proposed committee amendment that would put the entire burden on the county assessors to determine valuations for traditionally exempt properties does not do much to improve the bill, which is flawed in its premise.

Withdraws from Bad Bill

Finally, an update on information presented in our last column about LB 299. It proposes to mandate that all insurance plans and programs that provide any coverage of prescription drugs or devices must cover contraceptive drugs and devices, and outpatient contraceptive services. Senator Jeanne Combs of Friend, to her credit, has withdrawn her name as a co-sponsor of that bad bill.

Capitol Correspondent for 02/28/03

A Third of the Legislative Session is Complete

More than a third of the currently running session of the 98^th Nebraska Legislature has been completed. The ride has been relatively smooth and easy so far, not much rancor, not a lot of controversy. Part of the calm has to be attributed to the collective realization that the last third, when the fiscal deficit will be confronted, will be plenty difficult.

The session has not been standing still, however. If the numbers mean anything—and it’s wrong to overemphasize them as an indicator of productivity—the session thus far has certainly been about the business of lawmaking. As of the 32^nd legislative day, earlier this week, state legislators already had passed 60 bills, give or take a few. What’s more, another 50 or so had been advanced out of a standing committee to General File, then on to Select File, and then on to Final Reading, where they await a vote on the question of passage.

It’s probably the case that the lawmakers realize the process will be painstaking when the budget issues dominate the agenda, and so they are intent on dispatching relatively mundane proposals.

Reporting on More Bills

Mundane in comparison or not, here is another installment of measures that are on the radar screen of the Nebraska Catholic Conference.

LB 338, introduced by Senator Jim Jensen of Omaha and eight of his legislator colleagues, proposes moderate increases in the state’s excise taxes on alcoholic beverages. In addition, and just as importantly, the bill would establish the "Substance Abuse Treatment Fund" and designate a portion of each component of the alcohol tax to that Fund, for purposes of supporting services and programs in Nebraska.

LB 338 has two companion bills. LB 337 proposes to assess a two percent surcharge (i.e., in addition to any other taxes) on the gross receipts from the sale of alcoholic liquor consumed on the premises of a liquor licensee. It too would establish a Substance Abuse Treatment Fund, which would receive the surcharge collections for use in funding substance-abuse treatment services for juvenile and adult offenders in the state’s correctional programs. LB 283 also proposes moderate increases in the alcohol taxes, but all the revenue would go into the General Fund, where it would be subject to the regular appropriations process.

The Nebraska Catholic Conference submitted testimony in support of the package of alcohol tax bills to the Revenue Committee. The Conference’s preference would be the bills that designate a portion of the revenue for substance abuse treatment and services. This is a consistent, longstanding position for the Conference, which views this as a family-life issue of great importance. Substance abuse is a damaging illness, a family illness. Treatment and a continuum of services for those who suffer from this illness are compelling needs and a legitimate priority for state funding.

The liquor-industry lobby is formidable, but the time is overdue for legislators to take action of this nature, starting with the Revenue Committee, which would be acting in the best interests of the common good by sending one or more of these bills to the full Legislature.

Capital Punishment

Three measures deal in a direct way with Nebraska law governing capital punishment. LB 791 reintroduces the idea of repealing authority for the death penalty and replacing it as a sentence for first-degree murder with imprisonment for life and mandatory restitution of the victim’s survivors. LB 526 reintroduces the idea of changing Nebraska’s method of execution from electrocution, unusual among all death-penalty states, to lethal injection. The Nebraska Catholic Conference supports LB 791 and, with that being the case, has no position on LB 526.

The third measure is new on the scene. It’s LR 10CA, which designates it as a Legislative Resolution proposing an amendment to the State Constitution. This would place restrictions on the power of the State Board of Pardons, comprised of the Governor, Attorney General and Secretary of State, in commuting a sentence of life imprisonment without parole or pardoning an offender sentenced to life imprisonment without parole. Whereas that power is now broadly discretionary, this proposed constitutional amendment would require that the Board’s decision to commute or pardon be unanimous and limited to when the offender is elderly, permanently infirm or permanently disabled and poses no threat to public safety, or to when newly discovered evidence creates reasonable doubt as to the offender’s guilt.

Random Notes

The white, bodaciously long, stretch limo parked in the short tunnel outside the north, ground-floor entrance to the State Capitol was a tip off on what was happening inside. Vegas casino big wigs were on hand, making a pitch in front of the Legislature’s General Affairs Committee for expanding gambling authority in the Cornhusker State. Wasn’t there; didn’t see it, but apparently the presentation was high-tech glitzy, even if it wasn’t riveting.

And finally…Senator Mike Foley of Lincoln’s 29^th legislative district and Senator Mike Friend of Omaha’s 10^th legislative district share an office suite in the northwest corner of the Capitol’s first floor. Of course upon entering that office, one is first asked, "Friend or Foley?"

Capitol Correspondent for 03/14/03

Bills of Concern

On March 3, the Nebraska Legislature’s Banking, Commerce and Insurance Committee conducted a public hearing on LB 299, a bill proposing to mandate that every individual and group health insurance plan (i.e., policy, certificate, subscriber contract, contract of insurance provided by a managed care plan, preferred provider agreement and health maintenance organization subscriber contract) that provides any coverage for outpatient prescription drugs or devices must provide coverage for prescription contraceptive drugs or devices, terms undefined for purposes of the legislation. Similarly, every plan that provides coverage for any outpatient service must provide coverage for outpatient contraceptive services, defined as "consultations, examinations, procedures, and medical services provided on an outpatient basis and related to the use of contraceptive drugs and devices to prevent pregnancy."

The bill, introduced by Senator Marian Price of Lincoln and co-sponsored by Senators Dennis Byars of Beatrice, Carol Hudkins of Malcolm, DiAnna Schimek of Lincoln, Elaine Stuhr of Bradshaw and Nancy Thompson of Papillion, purports to provide an exemption for religious institutions, religious organizations and "religious employers," but this so-called conscience clause is ambiguous and ineffective at best, and deceptive and irresponsible in its worst light.

Given its coercive nature and the lack of meaningful and adequate protection of religious and moral convictions, testimony in opposition to the bill was presented on behalf of the Nebraska Catholic Conference, the association through which the three Nebraska dioceses speak and act mutually and cooperatively on matters involving public policy, under the direction of the Diocesan Bishops. In part, that testimony stated:

"First, LB 299 fails to honor the right of religious freedom and denies the right of conscience-based decision making for all health care payers: insurers, employers, providers and participants. It proposes an unwarranted governmental intrusion that would coerce numerous Nebraskans to be involved with, and pay for, something that is contrary to their religious beliefs and/or moral convictions….

"Second, this bill is objectionable because, under certain circumstances, it mandates coverage of, and therefore payment for, abortion; it would force insurers, employers, and individual consumers to pay for the destruction of early human life…. The (mandated) coverage is for whatever the federal Food and Drug Administration designates. One mode of action for some contraceptives is to make the woman’s uterine wall non-receptive in the event a new human being is conceived. If the contraceptive method fails to prevent fertilization and a human being is conceived, the newly conceived embryo will be inhibited from implanting in the mother’s womb and will be destroyed. This is an early abortion, a chemical abortion.

"Third, LB 299 is objectionable in that it seeks to put the power of government and the force of law behind a presumption—one that is open to challenge and rebuttal—that contraception serves the common good and should be promoted as a matter of public policy…. Furthermore, contraceptive drugs and devices do not treat pathology. Their purpose is to suppress and/or alter healthy bodily functions. Therefore, this bill is more about legislatively enshrining certain sexual mores and lifestyle choices than it is about addressing women’s health or equity."

Other Aspects

One slightly redeeming fact about LB 299, which really has little to do with the bill itself, is that its mandates most likely would not apply to self-funded health insurance programs, because such programs are governed by Federal law and are not subject to state mandates.

It was somewhat surprising, and disappointing to say the least, that part of the testimony in support of LB 299 was provided on behalf of the Nebraska Commission on the Status of Women. This was advocacy for coercive legislation on a controversial subject by a state government agency that is funded by an appropriation from the State’s General Fund, using taxpayer dollars. We hope Governor Johanns will review this situation and the priorities of this state agency.

Time for an Increase

LB 435, sponsored by Senator Chris Beutler of Lincoln, proposes to increase the hourly minimum wage in Nebraska from $5.15 to $5.80 beginning Oct. 1, and then to $6.30 beginning April 1, 2004. The intent of the proposal is to adjust the minimum wage for inflation and loss of purchasing power. Part of Senator Beutler’s compelling testimony in front of the Legislature’s Business and Labor Committee was that the poorest one-fifth of all Nebraskans make less today than they did 20 years ago.

Testimony in support of LB 435 was submitted on behalf of the Nebraska Catholic Conference. This is in line with the consistent and ongoing efforts of the U.S. Conference of Catholic Bishops in support of Federal legislation to raise the minimum wage.

Cloud of Litigation

LR 11CA, if you haven’t already heard, is about legalizing casino-style gambling in Nebraska. That would take an amendment to the State Constitution. So the Legislature is considering the proposed legislation, which, in the form in which it moved from the first round of floor debate to the second, would add this wording to the Constitution: "The Legislature may authorize gaming at up to eight facilities in the State of Nebraska….The Legislature shall provide for the operation, regulation, and taxation of gaming at such facilities."

"Gaming" is defined. It’s "any game of chance played with cards, dice, equipment, or a machine for money, credit, or any representative of value." Not defined, at least at this point, is the term "facilities." What exactly are "facilities" for purposes of this wording being proposed for the Constitution? Presumably the Legislature would decide, but this is setting up as a classic experience in legal process.

See that tiny dark spec far, far out there on the horizon? That’s a cloud of, uh oh, litigation. Will it eventually make its way to hover over a courtroom somewhere in the state? Stay tuned, there’s still a lot to happen, including more debate in the Legislature and, perhaps, a vote of the Nebraska electorate in November of 2004.

Capitol Correspondent for 03/28/03

Legislature at Halfway Point

The 98th Nebraska Legislature has eclipsed the halfway point in its first regular session. The first half ended with the 45th legislative day on March 17, so the annual St. Patrick’s Day party had a little extra spirit.

Future contingencies might create an exception, but the Legislature’s committees have otherwise completed public hearings on the bills assigned to them. That being the case, legislators have begun meeting in daylong floor sessions earlier this week. The focus is on priority bills, those designated by individual senators (one each), by standing committees (two each) and by the Speaker (25 additional).

Taking up a spot on the committee-priority list is one of the most bizarre and incongruous bills of the session. It’s LB 32. Only to be lamented is the fact that the Legislature’s Natural Resources Committee advanced this bill to General File, the first stage of floor debate, on a 6-1 vote, despite justified opposition from a broad variety of organizations and associations, including the Nebraska Catholic Conference.

We commend Omaha Senator Mike Friend for being the lone committee member to vote against advancement of this flawed bill.

Superficially, LB 32 proposes to give municipalities, counties and natural resource districts authority, under certain conditions, to establish, impose and collect "use charges" to pay the costs of owning, operating, constructing, equipping, improving or extending present or proposed storm sewer systems and also costs of "storm water management programs," a term left undefined for purposes of the legislation.

Apparently, this new authority to impose use charges is intended to be available only to municipalities, counties and natural resource districts that are subject to certain Federal mandates, i.e., the National Pollutant Discharge Elimination System Act. Proponents of the bill, most notably the city governments of Lincoln and Omaha, claim it is merely creates a new "tool" that affected municipalities, counties and natural resource districts may turn to, if they opt to do so. The strictly optional nature of this proposed new authority is doubtful, however, given the fact that the bill appears to amend statute 18-504 in a way that would make it read as follows: "…It shall be the duty of the governing body of the municipality to charge rates for the use of…any storm sewer system… which rates shall be sufficient, at all times, to pay the cost of operation and maintenance thereof… to pay the cost of development, establishment, and implementation of storm water management programs…." (Emphasis added) Typically, a "duty" is quite the opposite of an option. Perhaps the proponents are unfamiliar with this part of their bill.

The bill authorizes use charges, but how does one "use" a storm sewer system or a "storm water management program?" What affirmative and consistently measurable act of consumption is there that makes storm water control like other utilities?

The bill says that "[C]harges to be paid for the use of a storm sewer system shall be proportionate to the storm water contribution of the premises served and based upon sound engineering principles, as determined by the municipality, and may include factors such as impervious land surfaces and land uses." (Emphasis added) Obviously, unless each and every premises is provided with a reliable means of accurately measuring the true and actual amount of storm water that runs off, i.e., the "contribution" to the storm sewer system, then it is de facto impossible to satisfy the requirement that charges be "proportionate to the storm water contribution" and the legislation is legally flawed on its face. The bill fails to account for uncontrolled variables, particularly the obvious fact that not every property receives the same amount of rainfall.

Proponents assert that the new storm water fee proposed by LB 32 is based upon "how much water drains off a property." That’s what representatives of Omaha and Lincoln wrote in a guest editorial in the Omaha World Herald. However, that’s inaccurate and misleading. Really, the proposal is to base the new fee upon every owner’s proportionate amount of "impervious property." Apparently, that means property that does not allow rainwater to penetrate the ground; instead, it runs off, carrying pollutants with it in some cases. It is roof surface and paved surface, such as driveways and parking lots.

An amendment advanced with the bill by the Natural Resources Committee suggests that "the square footage of impervious surface area of the average single-family residential home" (as estimated by the municipality, county or natural resource district) would "generally" constitute a "unit," off of which every property would be charged a fee of up to $50 per year for each unit it constitutes. A church or school or hospital, for example, with a lot of roof and a significant amount of paved parking surface, would likely constitute a slew of units and be subject to a substantial charge.

The Nebraska Catholic Conference is opposed to LB 32, not just because of how ambiguous and irrational it is, but also because, fundamentally, as a matter of public policy, it will erode the validity and value of tax exemption for non-governmental, non-profit institutions and voluntary associations of citizens that carry out special functions that produce significant public benefits. It fails to honor Nebraska’s longstanding policy of providing exemption from property taxes for religious, educational and charitable organizations that qualify. Politicians want to avoid using property taxes for these local-government functions, of course, so a bogus fee process is contrived.

Another part of the amendment from the committee shows even more how ridiculous this has become. It would allow municipalities to "subsidize all or a portion of storm water fees for public properties through an alternative funding source." So, for example, the City of Lincoln apparently could use property taxes to subsidize this one particular "utility" for the roofs and parking lots of the five public high schools in the city, but not for Pius X High School, or any of the other non-governmental high schools, even though it carries out the same public benefit and does so in a way that provides taxpayers with a great deal of savings.

Capitol Correspondent for 04/11/03

Survey Informs on Cuts, Taxes

If this were an even-numbered year, the regular session of the Nebraska Legislature would be, under almost every scenario, finished, wrapped up, "sine died." In the Cornhusker state, even-numbered years accommodate the second regular session of a single Legislature. Second sessions are limited to 60 legislative days unless extended, which seldom happens. The first session of the 98^th Nebraska Legislature eclipsed its 60^th legislative day earlier this week.

While state lawmakers have made overall good use of the first two-thirds of their work days, the best is yet to come; perhaps it’s more accurate to say that the toughest part of the current session lies ahead. Legislators still must accomplish their foremost obligation: fashioning a balanced budget for the FY 2003-2005 biennium, at a time when projected revenue lags behind current spending by a substantial, significant amount, in excess of $750 million. Deliberations focused on cutting spending and raising revenue will dominate the last 20-plus days of this year’s 90-day session.

In this tough situation, all relevant information is important. Last week, such information was bolstered by the release of a public opinion survey of 400 registered Nebraska voters. The survey was commissioned by Voices for Children in Nebraska, a non-governmental organization with a solid track record of advocacy for children and families, primarily those who are economically disadvantaged.

The Nebraska Catholic Conference was among several other advocacy organizations that had input into, and cooperated in the sponsorship of, this survey, which was conducted statewide March 13 and 14.

Abundant Awareness

Nebraskans are aware of the state budget deficit, that’s for sure, and are taking it seriously. Eighty-eight percent of the 400 respondents said that they have seen, read or heard about the deficit. And, more than 97 percent said they regard the situation as either "very serious" (69.8 percent) or "somewhat serious" (27.5 percent).

Of the 400 respondents, 14 percent described themselves as liberal, 38 percent described themselves as moderate and 45 percent described themselves as conservative.

The survey compared two of the general approaches that have received attention for dealing with the budget deficit. Forty-seven-and-a-half percent (47.5%) of the respondents said they most closely agree with the idea of a combination of across-the-board spending cuts of approximately five percent together with certain new and targeted tax increases. This idea is generally tied to some legislators. On the other hand, 36.8 percent said they most agree with the idea generally tied to the Governor, that is, across-the-board spending cuts of approximately 10 percent in combination with an increase in the cigarette tax. The number jumps to 51.8 percent for the "unicameral idea" if those who are undecided but leaning that way are counted. The "Governor’s plan" jumps to 40.8 percent with those who are undecided but leaning that way.

Determining priorities is the crux of the budget matter, of course, on both the spending and revenue sides of the equation. The survey presented a list of six general items, all of which have attracted publicity as being considered for cuts: the University of Nebraska and higher education; elementary and secondary education; the criminal justice and prison system; early childhood education for disadvantaged children; healthcare for disadvantaged children and the elderly, i.e. Medicaid; and childcare subsidies for the working poor. The question asked on each was whether to cut 10 percent, five percent, or not at all.

Every category received less than 35 percent support for a 10 percent cut. Budget cuts were least supported in the Medicaid category. Sixty-three-and-a-half percent (63.5%) of the respondents said they would make no cut in that program; 22.5 percent endorsed a five percent cut and only 13 percent endorsed a cut of 10 percent. That result is encouraging; especially given the fact that Medicaid eligibility for children and their caretaker relatives has already been significantly reduced, as a component of budget cuts during regular and special sessions in 2002.

The same breakdown—no cut, five percent cut, 10 percent cut—on the other categories is as follows: K-12 education, 62.5%, 23.5% and 13.5%; early childhood education for disadvantaged children, 49.8%, 28% and 20.8%; childcare subsidies for the working poor, 40.8%, 36.3% and 21.8%; University of Nebraska and higher education, 30.5%, 37.5% and 30% and criminal justice/prison system, 23%, 39.8% and 33.8%.

The results were also quite revealing on the revenue side. Those surveyed were asked to express their preferences regarding types of tax increases. Increasing the income tax received the least amount of support; 74 percent said no. The greatest support was for increasing the state’s tax on alcoholic beverages, a whopping 85.5 percent, followed by 73.8 percent support for increasing the cigarette tax.

While 56 percent of the respondents opposed a general sales tax increase, 58.3 percent supported expanding the sales tax base to include certain items now exempt, such as repair services, snack foods and temporary employment services. However, there was strong and significant opposition, 71 percent, to reinstating the sales tax on all food.

Was there anything earth shattering in the results of this survey? Not really. However, these results add to the information available to those who make decisions and set priorities, and they merit consideration in solving the large and complicated puzzle.

Bad Bill Killed

And in closing: An update on a bill previously addressed.

On March 11, the Legislature’s Banking, Commerce and Insurance Committee reported LB 299 as indefinitely postponed. This bill proposed to mandate that every health insurance plan offering any type of prescription drug benefit and/or outpatient service would have to cover contraceptive drugs and devices and outpatient services.

Voting to indefinitely postpone this intrusive, coercive legislation were Senators Mark Quandahl (chairman), Gene Tyson, Mike Foley, Jim Jensen, Mick Mines and Pam Redfield. We commend them for their action. It was the right thing to do. Senators LeRoy Loudon and Joel Johnson abstained on the vote.

Capitol Correspondent for 04/25/03

Courage Behind LB 294

Last year, on a vote of 42-5, the Nebraska Legislature passed the Homicide of the Unborn Child Act. It was LB 824. Governor Johanns signed the bill into law and as a result there are now specifically defined crimes of first-degree murder, second-degree murder, manslaughter and motor vehicle homicide when the victim is an unborn child at any stage of gestation. (An exception is necessarily made for abortion, conceding to the tragic fact of Roe v. Wade and Doe v. Bolton.)

The Homicide of the Unborn Child Act partially rectified a deficiency in Nebraska law. Its enactment, under the guidance of Senator Mike Foley of Lincoln, extended protection of the criminal law to unborn children. Prior to its enactment, if a perpetrator committed a criminal act of violence against a pregnant woman, an act that resulted in the death of her unborn child, that perpetrator could be charged for a crime against the woman, but was shielded from prosecution insofar as responsibility for ending the life in the womb. Now, criminal law in Nebraska recognizes two victims and provides the possibility of prosecution and conviction on two counts.

Civil Law Now Fixed

This year, the Legislature has already addressed and rectified a similar and related deficiency in Nebraska law, that being the civil law context of the matter. By a vote of 43-0 on April 11, the Legislature passed LB 294. Five days later, in a ceremony filled with emotion, Governor Johanns signed the bill into law. It will take effect 90 days after the conclusion of the current Unicameral session.

LB 294 makes it possible to initiate a civil cause of action for damages for the wrongfully caused death of an unborn child. Such lawsuits have been attempted in the past, but the Nebraska Supreme Court has consistently ruled over the years that the law enabling causes for action for wrongful death could not extend to unborn children, because the Legislature had not specifically provided for that coverage.

Prior to LB 294, Section 30-809 of the Nebraska statutes in part read as follows: "Whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person, company or corporation, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or company or corporation which, would have been liable if death had not ensued, shall be liable to an action for damages…." After the word "person" in the very first line, LB 294 added a comma and these important words: "including an unborn child in utero at any stage of gestation."

As with the homicide law, the civil law context also includes provisions that carefully separate it from interaction with abortion jurisprudence.

Less than 15 months ago, Nebraska law failed to recognize an unborn child in any meaningful way as a separate victim of a violent crime or wrongful act. Now, that recognition is present in both criminal and civil law in this state. That is an amazing turn of events.

At last week’s ceremony for the signing of LB 294 by the Governor, Senator Foley presented some stirring remarks that encapsulate what has taken place. With his permission, here is an excerpt of those remarks:

"Thank you very much Gov. Johanns, not only for signing the bill but also for the support you have given our pro-life work in the Legislature.

"I also want to acknowledge the work of Attorney General Jon Bruning, who, shortly after taking office as our new Attorney General, identified this bill as one of his legislative priorities for this year and took time to appear before the Judiciary Committee and provide some very helpful legal testimony on the need for this legislation.

"Thank you also to Senator LaVon Crosby (Senator Foley’s predecessor in representing District 29) for her work in the Legislature on this bill. …I simply picked up where Senator Crosby left off on this work and because of the solid foundation she built, the bill’s passage was just that much closer to completion.

"Finally, I want to acknowledge in a very special way, the O’Brien, Uhing, LaTurner, and Bowker families, who have been so willing to travel to Lincoln time after time (from Crete, Hartington, Topeka and North Platte respectively) to testify before the Judiciary Committee in support of this legislation. When they came, they brought with them not only the sad stories of the tragic losses of their children or grandchildren, but they also brought color photographs of those children. When this bill was reported out to the floor of the Legislature for consideration, my staff prepared color reproductions of those photographs and we circulated those pictures to every senator. After those pictures were received by the other senators, the debate was over. Not one senator dared to take the floor in an attempt to argue that these families did not suffer a very real and significant loss, a loss that must be recognized in the laws of our state.

"And so, because of the deaths of baby Kelsi O’Brien, Joshua Uhing, Zacahary Griessmer, and Jackilee Soto, we have come to realize the terrible deficiency in our laws and we have now belatedly fixed those broken laws."

Senator Foley concluded his remarks in front of a hushed gathering by reading a poem that Lindsay O’Brien wrote about her unborn baby sister. It was moving and wonderful.

Senator Foley, and Senator Crosby before him, exhibited great courage in shepherding this legislation, which, of course, was not devoid of the controversy that swirls around anytime public-policy addresses life within the womb. But their courage was matched, if not exceeded, by the courage of the families Senator Foley so appropriately acknowledged. The tragedies experienced by these families, and the stories of loss they were willing to tell, have become a recorded part of Nebraska history. And Nebraska is better as result.

Capitol Correspondent for 05/09/03

Session Winding Down With Budget Focus

Now that the Nebraska Legislature has just about a dozen working days remaining in its 2003 regular session (unless of course a unique confluence of circumstances causes it to be extended beyond the customary odd-year limit of 90 working days), it’s that time in the proceedings when bills get loaded up—or loaded down, depending on how you view it—with amendments.

On more occasions now than earlier in the session, amendments include proposals that were originally introduced as other, freestanding bills. If a bill is not in position to be considered this late in the session, then one strategy is to propose it as an amendment to a bill that is in a more favorable position. In some cases, this strategy is generally accepted as a matter of convenience and efficiency. In other instances, it’s bolder, more aggressive and not without controversy or resistance.

Lobbyists and other observers of the Legislature learn to pay particularly close attention to amendments that start out with this wording: "Strike the original sections and all amendments thereto and insert the following new sections." That wording can signal something fairly significant, either a substantial re-working of the original proposal, the addition of provisions from one or more other bills, or total elimination of the provisions of a bill and replacement with the provisions of another bill.

Another aspect of the process that tends to have added significance during these last days of the session is this advisory: "Amendment is printed separately and is available in the Bill Room," meaning Room 1104 at the State Capitol. While it’s not always the case, an amendment that has to be printed separately—rather than textually in the daily Legislative Journal—usually has some "meat on its bones." Often it’s one of those strike-the-original-sections-and-insert-the-following-new-sections types.

"Crunch time" for this legislative session is heavily influenced by the task of crafting a state budget for the next fiscal biennium, which will begin July 1. And that budget task is being even more heavily influenced by a deficit between current spending and projected revenues, estimated to be as much as $759 million.

This Legislature is working hard to deal with this difficult situation. Leadership is being provided by the Appropriations Committee and the Revenue Committee.

The nine-member Appropriations Committee advanced a multi-bill spending plan that addressed slightly more than $400 million of the deficit by means of spending cuts and reductions in growth rates for state agencies and programs. By no means are these easy things to do. Comments attributed to Sen. Don Pederson of North Platte, a member of the Appropriations Committee, give this some much-needed context. He said to his colleagues, "We’re just giving you our best judgment as to what the needs are in the state to maintain the quality of services that we believe the state requires."

On the other side of the equation, the Revenue Committee has also worked diligently to address the deficit. Its proposals to date have focused on eliminating the expiration dates on some tax-rate increases previously adopted on a temporary basis. This involves the cigarette tax rate, the income tax rate and the sales tax rate. There are other revenue changes as well, including an increase in the tax rates applied to alcohol and expansion of the base of goods and services to which the sales tax is applied. Consideration of additional tax increases is likely to occur.

One of the most interesting aspects of the budget debate thus far was an amendment offered by Senator Chip Maxwell of Omaha. He proposed to eliminate all funding for the public-school state-aid-to-education formula in the second year of the budget biennium, FY2004-05. The dollar figure was approximately $616 million.

Senator Maxwell’s intent was not to de-fund K-12 public education. Rather he was seeking to establish a setting in which the Legislature would be under the gun, so to speak, to create a new and better funding mechanism. In essence, there would be a year to do so. His own plan for accomplishing that task would incorporate a variable tax on income and real property valuation.

Senator Maxwell did a masterful job of presenting his idea. He was thoughtful, well prepared and articulate. He laid out the facts as to how much of a burden the current K-12 education financing formula is on the overall state budget. He projected how that burden will continue to become even more pronounced in years ahead. He argued for significant, real change, with more than a token impact.

The idea did not catch fire under the circumstances. Some senators seemed intrigued by it, and several thanked the Omaha lawmaker for "thinking outside the box." But "something outside the box" was more than most legislators wanted to handle. The amendment failed on an 11-27 vote. It was a valuable effort nonetheless and may get more attention in the future.

"Solving" the budget dilemma was still very much a work in progress with just days left in the session.

Capitol Correspondent for 05/23/03

Showdown Over Budget

With only five regularly scheduled days remaining in the 2003 session of the Nebraska Legislature, a showdown between the legislative and executive branches of state government appeared inevitable. That’s not unusual or unwarranted.

The Legislature has toiled to create a spending plan and a revenue package that together result in a balanced budget. The Governor, in his role as the state’s chief executive, appears to have some significant differences of opinion as to how the balancing should be achieved.

The Governor has veto power, including line-item veto power on budget bills. The Legislature gets the final shot however; legislators can override any veto with 30 affirmative votes out of the possible 49. The showdown will be decided on the basis of that "magic" number of 30.

It would be a pretty dull process, and ineffective as well, if there were a total meeting of the minds between the Legislature and the Governor on fiscal matters. This year, the differences tend to be more pronounced and significant, primarily because of what some call the "budget crisis", the size of the gap between continuation spending and projected revenue: as much as $768 million for the 2003-2005 fiscal biennium.

Cuts and Taxes

Legislators sent to Final Reading a package of bills—including LB 407, the mainline budget bill—that reduces state spending by $436 million for the biennium. In addition, at least 25 legislators, the number needed to pass legislation, appeared poised to vote for a counterpart package of revenue enhancements; LB 759 would result in approximately $343 million in additional revenue during the biennium.

LB 759 uses a variety of tax adjustments, including increasing liquor and tobacco taxes, making permanent the income and sales tax increases that were originally intended to be temporary as enacted during past sessions of the Legislature, and expanding the services subject to sales tax.

In anticipation of a veto on LB 759, a resolute grouping of senators promoted the strategy of keeping a set of separate tax bills on hold, more or less constituting the changes compiled in LB 759. This strategy provides options.

Cuts and Bold Moves

A popular reaction to the budget deficit is that it can and should be resolved through more extensive cuts and little or no reliance on tax increases. That’s an approach, of course, but starting with a special session late in 2001 and continuing through the regular session in 2002, then another special session, and then continuing further with the current session, the Legislature in fact has done extensive cutting. The legislators have a most difficult task, not only in balancing the budget in an accounting sense, but even more in balancing the needs and demands for governmentally sponsored services with the means and methods for paying those costs.

One specific spending reduction that grabbed front-page attention was the 29-8 vote in favor of eliminating funding for the Lincoln Correctional Center. Senator Dwite Pedersen of Elkhorn initiated this amendment to the mainline budget bill. He described it as "a very bold move." That it was, but these circumstances are ripe for bold moves, as well as attention on greater government efficiency.

This was bold, but by no means a matter of immediately releasing 500 murderers and other violent criminals out into Nebraska communities, as some accounts seemed to portray it. Some reactions were exaggerated.

Sen. Pedersen aptly presented a rationale for his proposal. The facility in question currently houses approximately 470 inmates. Closing the facility would necessitate paroling that number of offenders in order to make room within the remaining parts of the correctional system. According to Sen. Pedersen, there are some 485 offenders currently within six months of release. Moreover, only 13.6 percent of inmates are in prison for violent crimes. Senator John Synowiecki made the point that this would bring about focused attention on community corrections programs, which are less expensive than incarceration.

Before adopting Sen. Pedersen’s original amendment, legislators modified it to delay the closing until October 1, 2004. With this delay, even if the proposal stands at the end of this session it will undoubtedly be revisited again before it takes effect. For one thing, the overall issue of escalating costs attributable to the correctional system will be studied during the interim between legislative sessions.

Put Off Until 2004

Updating the status of legislation addressed in a previous column:

LB 32, the legislation that proposes to give certain communities, counties and natural resource districts authority to levy user charges for storm water infrastructure, systems and management programs, based upon each property’s square footage of "impervious service", has been bracketed until the 2004 session. That’s good news for now. Better news will be the quick and decisive demise of this bill early next year. Municipalities already have authority to levy taxes for these purposes, and also may propose to issue general obligation bonds as well. LB 32 proposes a payment in lieu of taxes, based upon a fictional measurement and a goofy formula.

Capitol Correspondent for 06/06/03

Legislature Ends Without Extending Session

Several weeks ago, there was a real possibility that the first session of the 98^th Nebraska Legislature would have to be extended beyond the customary limit of 90 working days. Another possibility was that if that same regular session were kept to 90 days, it would soon be followed by another special session, the fourth in two years. The task of dealing with a serious fiscal deficit was that daunting and politically intense.

As matters turned out, the Legislature not only avoided an extended session, it actually used only 89 of the 90 legislative days allowed in an odd-numbered year by the Nebraska Constitution. (Extension is permitted only with a four-fifths vote of the 49 legislators.) Adjournment sine die came at mid-afternoon on Friday, May 30.

The 90^th day, reserved for the following Monday, was not needed. That might have been because of a desire not to return after a weekend. But, for the most part, it was due to the fact that the legislators completed the business they had to complete—the budget for the fiscal biennium that begins July 1—and as much other business as they wanted to complete. The Governor cooperated by making his decisions on approving or vetoing legislation in a timely manner that accommodated the Legislature’s schedule.

Remarkably, this was the second time in the last five years that a regular session of the Legislature adjourned sine die with a day to spare. It also happened in 1999.

As for the possibility of another special session, it’s not out of the question, but it seems more remote.

Veteran Leadership

As described and commented upon in this space over the past several weeks, the Legislature "solved" the budget challenge with a combination of deeper spending cuts—deeper in the sense that significant cuts were made in each of two previous special sessions, as well as the regular session in 2002—and a variety of revenue measures.

Those measures included new tax increases, elimination of the expiration dates on previously made income and sales tax rate increases, expansion of the sales-tax base, fees increases and some funds transfers. All in all, the Legislature filled a two-year gap of nearly $770 million.

The Governor vetoed the mainline budget bill, LB 407, and the main revenue-enhancement package, LB 759. But, after the difficult, painstaking process it went through to pass the bills, the Legislature had more than enough meeting of the minds to easily override the vetoes. With 30 votes as the threshold, the veto on the spending bill was overridden on a 37-11-1 vote and the tax bill was overridden on a 37-12 vote.

Throughout this session just concluded, veteran legislators, such as Senators Kermit Brashear and Ernie Chambers of Omaha, David Landis and Chris Beutler of Lincoln, Roger Wehrbein of Plattsmouth and the Speaker of the Legislature, Sen. Curt Bromm of Wahoo, really took charge of this uniquely difficult situation, exercising their leadership and exerting their influence.

Probably the most meaningful part of the session’s closing events was the testimonial that the most tenured member, Senator Chambers, spoke on behalf of Speaker’s performance. The words, delivered in the sincerest of manners, were of high praise and appreciation. They were appropriate, well deserved and well earned.

Traits

A couple of days after the session, an acquaintance who spends too much time watching the Unicameral's televised proceedings, asked us what traits have catapulted Sen. Brashear into such an obviously prominent and effective position in the Legislature. Wow, what a request for one man's opinion, especially in the context of casual, 19^th hole conversation. After a pause for thought, the response was not short.

Let's see … the representative of Omaha's District 4 and chairman of the Legislature's Judiciary Committee is, among many things, smart as a whip, sharp as a tack (and we don't just mean his impeccable attire and stylish coiffure), and articulate.

He’s fully committed to, if not obsessed with, professionalism, trained in the law, and uncommonly aware and understanding of the legislative process and the function of legislation. He also could be described as more brusque than charming, often intimidating, and on the edge between abundant self-assuredness on one hand and arrogance and volatility on the other.

What's more, he manages a crackerjack, second-to-none staff that sees to it he is informed and prepared.

These traits don't mean that Sen. Brashear is always right, but even when he's wrong he's formidable and impressive.

Afterthoughts

Never before in 26 previous years of monitoring the Legislature did I even consider marking off each day as it passed on the legislative calendar. This year I did just that. It just felt like a necessary thing to do.

Whether or not this recently completed session of the Nebraska Unicameral was historical, or even merely successful, remains to be seen. It takes time for policy changes to take effect and shake out. For example, there was plenty of legitimate concern about both the spending cuts and the tax measures. We do know that not every bill was a gem. In fact, in the eyes of this beholder, some of the flawed bills were these: LBs 138, 249, 32, 411 and 743. More about them as the new interim proceeds.

Capitol Correspondent for 06/20/03

Legislation Commentary

During its recently concluded session, the Nebraska Legislature passed—and Gov. Mike Johanns later signed into law—LB 138, which significantly changes public policy governing anatomical gifts, that is, organ and tissue donations. These changes will take effect August 31.

Affecting that topic is a valuable scientific, medical and ethical debate over the criteria typically used to determine brain death, and on that basis to pronounce a person dead, for purposes of removing his or her organs. We acknowledge the existence and intensity of that debate, but it is beyond the scope of this discussion.

Our purpose here is to focus on public policy as it relates to making anatomical gifts. Suffice it to say that Nebraska law, whether rightly or wrongly, recognizes and accepts "brain death," i.e. "irreversible cessation of all functions of the entire brain, including the brain stem," as a determination of death.

Based on public policy in Nebraska, any individual of sound mind can give all or any part of his or her body for purposes of medical or dental education, research, advancement of science, therapy or transplantation. Such a gift can be made by including a provision in the person’s will; by executing a witnessed document other than a will, e.g. a donor card; or by using a motor vehicle operator’s license or state identification card.

Additional Consent

Since 1992, state law has required two conditions for an anatomical gift to take effect: death of the donor and the post-mortem consent by a person having legal authority to do so.

Persons so authorized to give that consent, in descending order of priority, are the spouse; an adult son or daughter; either parent; an adult brother or sister; a guardian of the person of the decedent at the time of death; and in last position, any other person authorized or under obligation to dispose of the decedent’s body. (This is the same order of authority that can make an anatomical gift for a decedent who did not execute such a document and, likewise, gave no contrary indication toward the idea.)

This requirement of consent on the part of a family member or other person in the line of priority list is currently in addition to the decedent’s own written execution of intent to make an anatomical gift. But, this is what the Legislature and the Governor have changed by means of LB 138. Effective August 31, no post-mortem consent will be required. The donor’s first consent, validly executed, will be enough to authorize removal of the gifted body parts.

With this change, Nebraska will join the majority of states, which have the so-called "first-person consent" policies.

Interestingly, from 1971 until 1992, Nebraska law governing anatomical gifts did not explicitly require consent on the part of a family member, or other authorized person. Validly executed first person consent was apparently sufficient. However, the relevant statute during that period set a minimum age—20 until 1977, and then 19—for an individual to execute an anatomical gift. In 1992, all mention of a minimum age was eliminated, but the post-mortem second consent was added. Presumably the two policy revisions were linked.

Thanks to leadership from the Legislature’s Health and Human Services Committee, most notably its legal counsel, the original form of LB 138 was amended to make the policy rational on the issue of age. While post-mortem second consent is eliminated, an age requirement is added; not only must a would-be donor be of sound mind, but also at least 18 years of age.

LB 138 does not affect the current law that authorizes parents to give post-mortem consent for anatomical gifts on behalf of unmarried children under the age of 18.

Flawed Legislation

The Nebraska Catholic Conference did not oppose LB 138, nor did any other individual or organization. The NCC concluded that first-person consent on the part of sound-minded adults is a rational and realistic policy, and satisfies the critical element of consent.

But, LB 138 has at least one significant flaw—it applies retrospectively, or at least is silent on that point. Apparently, starting August 31, no post-mortem, family-member consent will be required for the removal of the organs and/or tissue of any adult decedent who had executed any form of donor document, regardless of whether he or she did so before or after that effective date.

In an indeterminable number of instances, the bill changes the rules after the fact, failing to respect and protect the interest of a declarant/donor who executed his or her donor document with the understanding, intent and purpose that post-mortem, family-member consent would, in fact, be required.

Perhaps actual instances of this will be few and far between. But, the Legislature should not have been so presumptuous. Changed rules should not be a trap for anyone.

This is a fundamental policy consideration that should have been addressed by the legislation. It may have been as easy as making the revised policy prospective, applying only to donor documents executed after the effective date of the legislation.

Given the fact, however, that most proponents of the legislation view it as a policy change that will increase the number of organs available for transplant purposes, a broad impact was no doubt intended. Make no mistake; part of the nature of this legislation is utilitarian.

Public policy rightfully provides for revocation of any document that consents to an anatomical gift. Anyone who has already executed a donor document with the understanding, acceptance and intent that post-mortem family consent will be a part of the process, as the law has provided since 1992, should reconsider his or her prior action and revoke that document if need be, by destroying it if it stands alone, by revising his or her will, or by changing the driver’s license designation as the case might be, and communicating that revocation to any specified donee.

Capitol Correspondent for 07/04/03

Last Detail On Legislation

A task must still be completed before we can close the book on the 2003 regular session of the Nebraska Legislature.

It’s the paperwork, of course. Specifically, it’s Form D, the post-session paperwork required by state statute and rules and regulations of the Nebraska Accountability and Disclosure Commission.

Section 49-1488 of the statutes mandates that each registered lobbyist must file, within 45 days of the end of every session of the Legislature, a report listing all legislation upon which the lobbyist acted, including any positions taken. The fine for late filing is 25 bucks per day. Yikes.

At the Nebraska Catholic Conference, our filings of Form D are facilitated by the fact that we develop a comprehensive legislative summary for the Diocesan Bishops and the other members of the Conference’s governing board. Having compiled reviews on all the bills that were of interest to the Conference, it is fairly easy to translate them for the government’s forms.

Nine-Bill Package

One of the challenges involved in accurately describing legislation at the end of a session is that bills are often more complex at the end of the process than they were at the outset. For one thing, it is not unusual for another bill, or a few other bills, or even several other bills to be amended into a "host" bill, creating a package.

The foremost example of this during the recently concluded session was probably LB 17. Late in the process, it was loaded up with parts or provisions from LBs 136, 179, 260, 298, 344, 367, 427 and 632.

An interesting aspect of Nebraska law is that Article III, Section 14 of the State Constitution says that "No (legislative) bill shall contain more than one subject…."

In every session bills are passed that are at least somewhat suspect under that provision. However, the limitation has been liberally interpreted and is typically a remote consideration, if a consideration at all. Besides, it’s hardly the case that there are Nebraska taxpayers with enough incentive, enough time and, most of all, enough resources to make a point of challenging legislation on grounds of the one-subject rule.

By the way, all the bills amended into LB 17 had some connection to criminal law. And, the Legislature’s Judiciary Committee set them up for packaging. At least there were some threads of commonality.

Almost-Homeless Ghosts

Onto another item left over from the legislative session…

During consternation over the state budget, there was some early speculation that funding cuts proposed for the Nebraska Supreme Court might force closing of the State Law Library, which is located on the third floor of the magnificent State Capitol. The Court operates the Library.

That speculation stirred personal memories.

As a green, but growing, law clerk nearly three decades ago, I was employed by a state agency that was housed in the Capitol at that time. The agency’s lawyers had keys to the Law Library; and because they felt sorry for the law clerks, on account of the stress we were experiencing in trying to survive law school, they would lend us their keys so we could study at night and on weekends. It’s doubtful there was any quieter place.

Perhaps you have heard the stories about the presence of ghosts in certain parts of the Capitol. Supposedly, the spirits of deceased Supreme Court justices, and maybe even an Attorney General or two, hang out in the Law Library.

I cannot honestly recall that I ever encountered a ghost at that library, although such an encounter might have aided my studying. I can recall that there were a lot of spooky sounds; and occasionally a real-life justice would show up to check a citation.

As matters turned out on budget, the Legislature authorized some filing fee increases that should allow the Supreme Court to keep the Law Library open. That’s a good thing.

Senator Nelson Honored

On another topic…

We were pleased to learn that the national organization, Democrats for Life of America, recently honored Nebraska Senator Ben Nelson, presenting him with its 2003 Leadership Award at a dinner in Washington, D.C.

Of Senator Nelson, a DFLA spokesperson said, "What a boost of encouragement and unfailing assistance he has been…His involvement was not politically solicited or motivated. He is simply a sincere person looking for ways to support Pro-Life Democrats and Pro-Life issues."

Bet that commendation causes more than a few Democrats in this state to clench their teeth and put their hands over their ears. Come to think of it, it no doubt causes some Republicans to do the same.

Capitol Correspondent for 07/18/03

Legislative Odds and Ends

Although its rules and procedures provide complexity as well as structure, the essence of the legislative process is that of a remarkable forum for ideas. That’s what legislation really is: ideas for changing public policy.

As we have been reviewing much of the legislation that was introduced during the 2003 session of Nebraska’s Unicameral, we have noted numerous bills that suggest unique and unfamiliar ideas, fresh thinking, or "thinking outside the box," as popular parlance might describe it. Here’s a sampling:

LB 613, which will start the 2004 session on General File, the first stage of floor debate, having been advanced by the Judiciary Committee, proposes that a victim of domestic violence or sexual assault, a response advocate for such a victim, or a necessary third-party to the victim-advocate relationship, could not be compelled to give testimony or produce records pertaining to the victim-advocate relationship. In other words, in the context described there would be an evidentiary privilege in all criminal, civil and administrative proceedings.

This privilege would apply, for example, to the location or identity of "safe houses."

LB 624 proposes that non-profit entities operating thrift shops would be exempt from having to pay landfill fees.

At first thought, that seems like a rather silly idea, but by acknowledging and giving weight to the reality that a lot of the stuff that is donated to, or dumped off at, thrift shops is throw-away junk, the idea has substance. Providing non-profit thrift shops relief from these fees would enable them to devote more resources to helping folks in need.

The bill had a public hearing in front of the Legislature’s Natural Resources Committee. The committee took no action and carries the bill over to the 2004 session.

LB 750 proposed the "Rural Wages Enhancement Act." The idea was to require all political subdivisions of Nebraska government to pay a "living wage" to all employees who are either single parents or farm-family second-wage earners.

According to the definition provided by the bill, "living wage" would be the equivalent of the federal poverty level for a family of four.

The bill also proposed that the additional costs incurred by the political subdivisions would be reimbursed out of the State’s treasury.

Even though the Business and Labor Committee indefinitely postponed (i.e., killed) the bill, subsequent to a public hearing, the bill provoked thought on a topic, i.e., stimulation in Nebraska’s rural economy, which definitely deserves at least that. Perhaps this idea, or a hybrid thereof, will resurface in 2004.

Somewhat along the same lines, LB 776 proposes "the Main Street Business Development Act." It would use proceeds from an increase in the application fee for the already existing Employment and Investment Growth Act (traditionally known and revered--by some--as the LB 775 program), and other sources, to create a fund to be used to restore funding to the agricultural value-added grant program, to the Nebraska Micro Enterprise Fund and to the Affordable Housing Trust Fund for housing in rural areas and urban neighborhoods.

The Revenue Committee conducted a public hearing on this multi-faceted collection of ideas and, having taken no action, will still be in charge of the bill when the next session convenes.

Do It Correctly

On another item of interest…

Last week, in a class-action lawsuit energized and led by the Nebraska Appleseed Center for Law in the Public Interest, a three judge panel of the U.S. Court of Appeals for the Eighth Circuit ordered that the State of Nebraska be enjoined from denying transitional medical assistance to some 10,000 low-income parents whose eligibility for full-fledged Medicaid coverage was terminated by the Legislature. That happened last August during the "special" budget-cutting session.

The Legislature’s action in turn prompted Health and Human Services System bureaucrats to deny transitional medical assistance as well.

The federal appeals court panel said, no way; the plain meaning of the federal Medicaid law requires transitional medical assistance for up to a year.

This was not the first time that Nebraska Appleseed has zinged and zapped state bureaucrats for faulty interpretations and unjust administrative action.

Lamentably, the State intends to appeal the recent ruling by petitioning for further review by the en banc panel of the Eighth Circuit Court of Appeals.

Drought Ends

And finally…

For 33 consecutive years there has been an annual golf event for legislators and lobbyists at Hastings’ renowned Lochland Country Club. This year, for the very first time in all 33, there was an ace.

Former state senator Jan McKenzie, who now lobbies for insurance and education interests, scored the first-ever hole in one, much to the delight, actually, of her mostly male competitors.

She was awarded a special prize, but reportedly used most of it honoring one of golf’s most cherished traditions: paying for refreshments.

Capitol Correspondent for 08/15/03

Trip Exhilarating In Several Ways

Having recently traversed nearly 3,000 miles in a trip to the eastern part of the country, using one route out and another coming back home, it is even more apparent to us that the nation’s interstate highway system was created really for two purposes: speed and construction projects.

On that first point, since we long ago gave up amusement park rides, is there anything more nerve wracking, and at the same time exhilarating, than approaching or leaving a major U.S. city on a multi-lane, super "speedway," on which 70-plus MPH is the norm and at least 10,000 trucks and other vehicles are whizzing by and darting between lanes? Lessons re-learned: if you don’t know for sure where you are going, drive as if you are sure, because any hesitation will make matters worse; and, recover and adjust whenever you happen to get the chance.

We arrived home safely, thanks be to God, but with a few conclusions. First, even though the in-state segment of our trip was limited to the relatively short distance between the Capital City and the state’s eastern border, speed is just as excessive in Nebraska as anywhere else. Secondly, our car is a "traffic magnet;" at least 80 percent of the many times we approached a freeway entry ramp on our right there was a vehicle merging and, at the very same time, a truck or a van moving up to pass us on the left. Thirdly, the "old" two-lane highway we used as an alternative through rural areas of Virginia and West Virginia was the most scenic and most enjoyable.

Know Your Chocolate

Our trip "back East" was a combination of a modest spirit of adventure and participation in the annual summer meeting of the National Association of State Catholic Conference Directors. The Pennsylvania Catholic Conference hosted the event this year and the site was Hershey, PA, where just about everything is connected to chocolate.

At the midway break in a nice round of golf at the Hershey Golf Club we unthinkingly made the ultimate faux pas for a visitor to that area.

Consistent with a habit that started long ago, we sought energy and revitalization between nines by ordering ice water and a Snickers bar. Uh, oh.

"Pardon me, sir," the nice lady at the snack stand politely responded, "but this is Hershey territory."

"That’s right; how dumb are we; we’ll take two," was our red-faced response.

As always, the opportunity to share with and learn from our colleagues from state conferences across the country was worthwhile and beneficial. This year, state-government fiscal deficits and budget cuts were on most minds. Particular concern regarding the impact of cuts and other budget maneuvers on those most vulnerable, especially low-income families and children, remains very much at the forefront of issues being addressed by state conferences. We all recognize and appreciate that these times create both challenges and opportunities for applying the Church’s principles of social justice, especially preferential option for the poor.

Teaching Documents

Two documents issued this year by the Congregation for the Doctrine of the Faith also received attention and discussion at this conference directors’ meeting. Both are uniquely relevant to the function of state conferences in representing the shared views and positions of the Diocesan Bishops on issues that interrelate Church teaching and significant public policy.

The first of these documents is the "Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life." We were provided with a Synopsis of the document, which was developed by staff of the United States Conference of Catholic Bishops, and were instructed by Msgr. John Strynkowski, executive director of the Office of Doctrine at USCCB.

The teaching of the Doctrinal Note emphasizes that while it is the right and duty of Catholics to attend to the contingencies of the political order, this activity must always be based upon moral principles and essential values. The task of "infusing the temporal order with Christian values" is successfully fulfilled when "guided by a Christian conscience." The Note seeks "only to recall some principles proper to the [well-formed] Christian conscience". It warns against "ethical relativism" and "an ambiguous pluralism".

The second CDF document was released July 31. It is entitled, "Considerations regarding proposals to give legal recognition to unions between homosexual persons." This teaching document sets forth "ethical considerations of different orders" to help in understanding why it is necessary for Catholics—including Catholic politicians in a particular way—to oppose legal recognition of homosexual unions; namely, from the order of right reason, from the biological and anthropological order, from the social order and from the legal order.

From our point of view, in reiterating essential points the "Considerations" confirm and reaffirm the principled basis upon which the Diocesan Bishops in this state endorsed Initiative 416 in 2000—now Article I, Sec. 29 of the Nebraska State Constitution—and actively urged Catholic Nebraskans to vote for it.

The Nebraska Catholic Conference has received inquiries about each of these documents and is providing copies to public officials at several levels.

Capitol Correspondent for 08/29/03

Negated Budget Decision Restores Health Coverage

Intent and purpose notwithstanding, not every cut in Nebraska’s state budget is happening as it was cranked up to happen. In at least one particular context, a significant cut appears likely to be blunted, and there are important, humanitarian reasons why that reversal in policy should not be lamented.

The specific example we have in mind has nothing to do with temporarily storing $300,000 worth of issued "just-in-case" checks in the State Treasurer’s vault. It’s a lot less bizarre than that newsworthy situation.

A year ago, during a special session called to reduce spending, lawmakers approved a policy change that resulted in eliminating Medicaid health care coverage for a category of working yet low-income parents. (This was LB 8 of that special session.) The savings from restricting Medicaid eligibility in this manner was expected to be about $18 million per year. The flip side of that decision, obviously, was that many more Nebraskans would be left without coverage for health care.

The cuts took effect, as intended and anticipated, but soon thereafter a class action lawsuit challenging this denial of health care coverage was filed in U.S. District Court. The suit contended that federal Medicaid law requires a transitional year of continuing health care coverage for those terminated from the regular program. State officials disputed that, of course, asserting a different interpretation of Federal