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Capitol Correspondent - NCC Column 2004

Diocesan Newspaper columns by James R. Cunningham

Update: NCC Position Gains Support (12/17/04)

Welfare Reform & the Crisis in the Sudan (12/03/04)

Wrap-up on the Election (11/19/04)

Election is Over, But Responsibility Continues (11/5/04)

Persevere, It Will Soon Be Over (10/22/04)

Voter Candidate Survey (10/15/04)

Registration and Voting Processes Are Easy (9/24/04)

Watch for Another NCC Candidate Survey (8/27/04)

Time to Support Federal Marriage Amendment (7/2/04)

Catching Up on Random Items (8/13/04)

Call to Return to Basic Moral Principles (6/18/04)

No Hunger for Legislators (6/4/04)

Abundance of Litigation Lies Ahead (5/21/04)

Salute to Departing Legislators (5/7/04)

Bill Victim of Shabby Treatment (4/16/04)

I-300 Important Public Policy (4/2/04)

Budget Woes and Mental Health Reform Focus of Final Days (3/19/04)

Problematic State Budget Focus of Session End (3/12/04)

A Tax is a Tax (3/5/04)

Conference Takes Position on Bills (2/27/04)

Legislative Session at Halfway Mark (2/13/04)

Senators Take Their Duties as Elected Officials Seriously (1/30/04)

Budget Woes Top the List of Worries for Legislature (1/16/04)

Legislature’s New Session Will Be Busy (1/2/04)

Capitol Correspondent for 12/17/04

Update: NCC Position Gains Support

A headline in the November 26, 2004 edition of the Lincoln Journal Star newspaper certainly grabbed our attention. It said, “Living wills, outlining medical wishes, full of problems.” The headline was over a story written in Washington, D.C. by Laura Meckler for The Associated Press. The AP Online version had this headline: “Living wills don’t really work often.”

The story and its headlines rekindled memories of past times when a great deal of public-policy debate occurred here in Nebraska regarding “living wills.” The significance is that this very recent story tends to affirm a longstanding position of the Nebraska Catholic Conference and to vindicate, if vindication were necessary, the Conference’s vigorous participation in that past debate.

The general idea behind a living will is that a competent individual declares in writing his or her wishes regarding life-or-death medical-treatment decisions in advance of such a situation. It is the advance transfer to the attending physician of the individual’s own medical decision-making authority, to take effect when the principal is unable to give or withhold consent or otherwise make his/her own treatment decisions.

Nebraska has a set of statutes, the Rights of the Terminally Ill Act, which makes “living wills” enforceable as a matter of public policy. The Act sets forth minimal requirements for execution of the document and conditions pursuant to which the transfer of authority is implemented. Nebraska’s law is triggered when the principal is “terminally ill” or in a “persistent vegetative state,” no longer able to make decisions, and will die within a “relatively short time.” When triggered, the living will authorizes the “attending physician” to withhold or withdraw “life-sustaining treatment.” The key terms are generally defined—generally can mean vaguely in this context—leaving it to the attending physician to ultimately decide when to invoke the authority of the “living will.”

Our recollection is that the first serious attempt to make “living wills” legislatively enforceable in Nebraska occurred in 1987. It was LB 88. The Nebraska Catholic Conference vigorously opposed that legislation. Here’s a mere sampling of the Conference’s testimony on LB 88 in 1987:

            “Decisions regarding withholding or withdrawing life-sustaining medical treatment are so nuanced by the circumstances of individual cases that good legislation, using adequate legal terminology, is not possible.”

            “Living-will legislation will further complicate already difficult individual treatment decisions. Vagueness inherent in statutory language and construction will add confusion rather than clarity. No matter how simple the language of such a statute and declaration can appear, its simplicity will mask inherent ambiguities and the state of mind of the declarant.”

            “Legislation of this kind will compromise the principle of informed consent. Informed consent cannot be provided by virtue of a document signed months or even years in advance, without the benefit of all the facts and circumstances pertinent to the specific illness or injury….”

            “Legislation will interfere with the patient-physician-family relationship. Currently, in many circumstances family members are the best and strongest advocates of the patient’s rights. ‘Living will’ legislation, with the obligations its imposes on the physician and its corresponding legal immunities, separates the family from the decision-making process.”

Obviously, the NCC testimony was directed more at the legislation than at the concept, and there is a distinction between the two. (The true essence of the legislation is to grant criminal, civil and professional immunity to health care providers who carry out the authority of a living will.) Still, the problems of the legislation stem mostly from the drawbacks and limitations inherent in the concept.

The Associated Press story that was published less than a month ago describes several reasons why living wills “don’t really work”, including vagueness. The article quotes this comment by a geriatrician from Mount Sinai Medical School in New York:

“We’ve tried to take very complicated, difficult, painful, wrenching decisions and make them a simple yes or no. These are never easy decisions and they’re never black and white.”

The article quotes an expert in medical law at the University of Michigan Law School as follows:

“Most people believe that a living will can be written that is effective and that genuinely conveys real information that can be used in making decisions and that is not true.”

That same medical law expert, and a colleague of his, is quoted from an essay they co-authored for a bioethics journal: “Enough. The living will has failed, and it is time to say so.”

The article proceeds to discuss another form of advance directive, a better alternative—typically described as a durable power of attorney for health care—the designation of someone to have decision-making authority and to exercise it contemporaneously with the actual circumstances:

“A better end-of-life option, experts say, is to give a trusted loved one the legal authority to make decisions if you become incapacitated. Two large studies found more than 70 percent of people would prefer that doctors rely on family rather than living wills in making decisions about their care.” The concluding sentence of the article expands upon this notion: “Still, experts say designating someone to make decisions allows for more flexibility than living wills.”

The Nebraska Legislature did not pass LB 88 back then. It failed on Final Reading; the vote was 23-23, on April 7, 1988. However, five years later, another Legislature returned to the idea and passed LB 671, the Rights of the Terminally Ill Act. Concurrently, however, that Legislature also passed LB 696, which authorizes and governs durable powers of attorney for health care, the much better option. The Nebraska Catholic Conference actively supported LB 696.

Capitol Correspondent for 12/03/04

Meaningful Responses

In late October, Nebraska was ranked 43^rd in the nation and designated a failure. And, guess what, restrain your surprise, this was not about college football.

Actually, it was the conclusion of a study undertaken by a public-policy research organization, the Cato Institute of Washington, D. C., on the subject of Nebraska’s welfare-to-work program. That’s the current, on-going program that was spawned by “welfare-reform” legislation, LB 1224 in 1994.

According to Cato, Nebraska’s rate of trimming its welfare rolls, at 31 percent since 1996, was the 47^th lowest reduction among the 50 states. And, Nebraska ranked Nebraska 41^st in the percentage of ADC recipients who actually hold jobs. What’s more, the two-percent decline in the rate of births to teenagers between 1996 and 2001 was the smallest in the nation, according to Cato.

According to the Omaha World Herald’s reporting on this story, “Cato is…named for Cato’s Letters, a series of libertarian pamphlets that were part of the philosophical foundation for the American Revolution. The organization opposes big government and welfare and promotes free markets, lower taxes and civil liberties.”

Ah hah, an ideology is at play here.

Representatives of Nebraska’s Health and Human Services System reacted to the failing grade and the bad rating. They emphasized that the federal government has given Nebraska performance bonuses for its welfare program. In fact, Nebraska is one of only five states to have received the maximum possible bonus for three consecutive years, the most recent being $2.9 million announced just days before the Cato study came out.

The state’s response is informative and reassuring, but the more significant reaction, in our opinion, came from Nebraska Appleseed Center for Law in the Public Interest. Its director, Milo Mumgaard, exposed the ideological slant of Cato’s analysis. For example, the study zinged Nebraska for allowing job training and other educational activities to count as work. As Mumgaard told the World Herald, “ ‘It’s absurd on its face’ to rank Nebraska low for allowing welfare recipients to pursue education.”

Having lobbied alongside the Appleseed folks when welfare reform was debated in the Nebraska Legislature, we trust their reaction. There were no stronger advocates in opposing the harsh components of the legislation, so when they defend the public policy against external attack, that’s significant.

Take heart, Nebraskans, rankings don’t necessarily mean all that much.

A Crisis of Horrific Proportions

We spent a little time during the Thanksgiving break reading several articles about the terrible situation in Darfur, the westernmost region of the Sudan, in Africa. This truly underscored the profound point of giving thanks for the existence we enjoy.

For us here in this free nation, with so much attention to security, material prosperity and comfort, it is impossible to fathom the desolate and deadly situation in a place so far away. Still, the ethnic hatred and killing in Darfur has spawned what United Nations officials have called the world’s worst humanitarian crisis.

We do not pretend to understand a lot about the situation in Darfur, but the basic elements seem to be that Arab militias (Janjaweed) and other gangs seeking control of the region and its land, water and oil reserves, are targeting black Africans for oppression. Primary resistance comes from two rebel groups, established because of the Sudanese government’s ties to the militias. Most lamentable is the fact that innocent civilians, including children, are often victimized.

Estimates range from 70,00 to 100,00 for the number of people killed in less than two years. Estimates range between 1.5 million and 2 million for the number of people internally displaced. Many in desperation find their way to camps, which typically provide little protection from attack.

Bishop John Ricard, chairman of the Committee on International Policy of the United States Conference of Catholic Bishops, visited Darfur in August. Upon returning, he used this description: “The consequences in terms of loss of life and disruption of livelihood are as serious as any I have ever seen before.”

In early September, the Bishops of Sudan collectively issued a statement that said in part: “The situation in Darfur has resulted in terror, rape, torture, murder and slavery.” Added to that list is obstruction of relief workers, a factor that has contributed to tragic rates of starvation and disease.

The Sudanese Bishops also stated: “The holocaust of the African ethnicity in Darfur is ethnic cleansing.”

The most recent statement from the U.S. Catholic Church was presented November 17 by Bishop Wilton Gregory on behalf of the U.S. Conference of Catholic Bishops, as its outgoing president. In part, his statement made these points:

“The Government in Khartoum must be held accountable by the international community for the violence it continues to perpetrate against its own people, for its failure to implement Security Council resolutions 1556 and 1564, and for promoting insecurity throughout Darfur. Although the Government bears the greatest responsibility, the rebel groups should also be held accountable for violations of ceasefire agreements and the violence perpetrated against civilians and international aid workers.” Moreover, “It is past time for the world to act together in effective defense of human life in Darfur.”

The Bishops of the United States, as well as the Bishops of the Sudan, have emphasized the continuing importance of prayers for those affected by this crisis. In addition, another meaningful response is to donate to Catholic Relief Services.

Capitol Correspondent 11-19-05

Wrap-Up on the Election

If the General Election had occurred on November 9 rather than November 2, would any of the significant results have been different?

The question is more interesting than meaningful, but it comes to mind because the occasional reaction to coming up short in an election, like that of a sporting event, is the lament, “we didn’t lose, we just ran out of time.”

Perhaps that’s true in a few instances, but it is overwhelmingly doubtful on a general scale. It is unlikely that another week would have made a difference in any of this year’s election contests in Nebraska. More significantly, we’ll never know.

Probably the most legitimate time-just-ran-out claim would apply to the citizen initiative measures proposing expanded gambling for Nebraska. Another week would have extended the opportunity to spend thousands of dollars bombarding would-be voters with advertising, emphasizing local control and “keeping the money at home.”

As matters turned out, two of the four proposals in the package, one constitutional amendment and one statute, did win approval, although they had least to do with actual legalization of casino-style gambling. That result is rather confounding. Voters distinguished among the proposals, giving thumbs up to amending the state constitution to restrict the authority of the Legislature to modify or repeal a citizen-initiated statute, a proposal that extended much beyond gambling, and also to authorizing the regulation and taxation of the proposed new gambling. But voters also gave thumbs down rather emphatically to any constitutional and legislative authority for the new gambling.

Wording Makes a Difference

The speculative view here is that the majority of Nebraska voters had a general idea about the gambling proposals as they headed to the voting booth, but their actual votes came as a reaction to what they read on the ballot. The wording of ballot questions, both long and short versions, should not be overlooked as a factor in voter decisions.

There also were a couple of really tight legislative races for which another week of campaigning might have made a difference; it’s hard to say. Both were open seats, with retiring incumbents. In District 31, Rich Pahls had an edge of just 94 votes over Ben Thompson. In District 43, Deb Fischer led Kevin Cooksley by about 125 votes.

Election results will remain unofficial until November 29. That’s when the board of state canvassers, consisting of Governor Mike Johanns, Secretary of State John Gale, State Auditor Kate Witek, State Treasurer Ron Ross and Attorney General Jon Bruning, will meet to review the numbers and declare the results.

Strength of Incumbency

It was a good election for incumbent state legislators. Eighteen were running for re-election at the outset and 17 won, all pretty handily. The only exception was Senator Ray Mossey in District 3. Personal and legal difficulties caused him to unofficially exit the race a few weeks prior to the election. The number of incumbent winners is somewhat misleading; twelve of them were unopposed.

The incumbent legislator who withstood the stiffest challenge was Sen. Carroll Burling of Kenesaw, representing District. 33. He actually finished second in a three-way primary, but reversed that when it counted more, capturing 55 percent of the vote.

Nebraska’s incumbent members of the U.S. House of Representatives, Rep. Lee Terry in District 2 and Coach Tom Osborne in District 3, also cruised to re-election.

The new members of the Nebraska Unicameral, in addition to Pahls and Fischer, assuming the current results become official, will be Lavon Heidemann, District 1; Gail Kopplin, District 3; Gwen Howard, District 9; Mike Flood, District 19; Chris Langemeier, District 23; and Abbie Cornett, District 45.

One last election note. Not that it was a significant factor in the outcomes necessarily, but we feel compelled to point out that, except for four incumbent state legislators who ran unopposed, not a single legislative or congressional candidate who failed or refused to respond to the Nebraska Catholic Conference candidate questionnaire was elected. That category of also-rans includes three major party candidates, all Democrats, who sought to represent Nebraska in the U.S. House of Representatives. They rejected an opportunity to share their positions and views on a range of issues with thousands of Catholic households.

And Finally…

Some reading we recommend: Volume 150, numbers 94 through 97of the Congressional Record (various pages), for the proceedings of the U.S. Senate over a period of four days, July 9 and 12-14, on S.J. Res. 40, proposing an amendment to the U.S. Constitution defining marriage as “only the union of a man and a woman.” Particularly informative and compelling, in our opinion, are statements made by Senator Jeff Sessions of Alabama.

The matter came to a screeching halt, by the way, when a motion to invoke cloture and proceed to a vote on the measure itself received only 48 votes, 60 being required for approval.

Capitol Correspondent 11-5-04

Election is Over, but Responsibility Continues

Even though Election Day has now passed, the Catholic call to political responsibility by no means has expired. As the statement issued one year ago by the Administrative Committee of the United States Conference of Catholic Bishops states, “Faithful citizenship is about more than elections. It requires ongoing participation in the continuing political and legislative process.”

There is much wisdom in that guidance, with emphasis on “ongoing participation.” But what constitutes participation in the manner of “Faithful Citizenship?” Being informed. Paying attention. Taking the time and making the effort to let our public officials know how we feel on issues and how we would like them to respond. It’s Civics, with a twist of religious values.

Probably the most profound and instructional statement in the Bishops’ document on political responsibility is the following; it’s a guideline for “faithful citizenship,” whether the election is pending or completed:

“In the Catholic tradition, responsible citizenship is a virtue; participation in the political process is a moral obligation. All believers are called to faithful citizenship, to become informed, active and responsible participants in the political process. As we have said, ‘we encourage all citizens, particularly Catholics, to embrace their citizenship not merely as a duty and privilege, but as an opportunity meaningfully to participate [more fully] in building the culture of life….Every act of responsible citizenship is an exercise of significant individual power.’”

In less than 10 weeks, the first session of the 99th Nebraska Legislature will commence. Likewise, there will be a new convening of the U.S. Congress. Both will present excellent opportunities for Catholic Nebraskans to continue faithful citizenship.

Post-Build-Up Musings

Catching up on a few items still lingering from the build-up to the election:

Item. Last March, the Nebraska Legislature passed LB 172 on a vote of 33-7. Soon thereafter, Governor Mike Johanns signed it into law. Its purpose and effect were to repeal a statute that had required every public school district to annually distribute abortion-related information to all students in grades seven through 12. Specifically, the mandated information had to describe the law that requires abortion providers to notify at least one parent of any minor who seeks to procure an abortion and also the related law that authorizes judges to waive the notification requirement in certain circumstances.

Even though this mandate on public school districts has been eliminated, it’s obviously still on the minds of some.

When the president of an organization identified as Friends of the Lincoln-Lancaster Women’s Commission used space in a newsletter to urge women to vote, here’s one of the concerns she presented as “reasons to vote”:

“Our elected officials in the Legislature voted down more education for our young people when they voted to not continue to mandate a letter to be given to our upped aged teens, high school age youth, which would have discussed their right to seek medical attention privately, without telling their abusive parents.”

Now, that is pure spin and word manipulation. It distorts the law. It is intellectually dishonest. It’s nonsense. However, it also validates one of the reasons why LB 172 was necessary and justified, because undue emphasis was focused on bypassing parental notification, rather than the law’s good sense as a matter of public policy.

Item. The Lincoln Journal Star newspaper gave its endorsement to President Bush for re-election and to Jeff Fortenberry, the Republican candidate for Nebraska’s First District seat in the U.S. House of Representatives. That prompted a few critical responses, one of which was afforded guest-editorial prominence. It appeared under the byline of a Lincoln resident, Virginia K Wright.

Overall, the only thing clear about her wordy piece was that it chastised, and questioned the motives of, the Journal Star regarding the two endorsements. The specifics of her reasoning were pretty much incomprehensible, but there was one comment that exposed a bitter explanation. She wrote this for public consumption:

“I thought Fortenberry would have learned at the City Council level that once the Trojan Horse is inside, his antiabortion, conservative Catholic agenda just does not have much to do in the big world of democracy and serving the public interests.”

Those comments did not serve the public interests of rational political discourse. Much to the contrary, they were mean-spirited and smacked of religious intolerance. Their ugliness served only to discredit whatever might have been legitimate about the response as a whole.

Item. On another side of the political universe, we were impressed by the strong, confident presentations of Nancy Osborne, wife of Coach/Congressman Tom Osborne, in opposition to expanded gambling in Nebraska. The first line of her radio ad, urging listeners to stand with her to protect Nebraska families was especially compelling.

Item. Also on gambling: while we found ourselves more often than not in agreement with and applauding the editorials, goodness gracious, did the Omaha World Herald hammer the expanded gambling proposals or what? It was editorially relentless, over a fairly lengthy period of time.

We wonder what quantity was greater, the words of opposition published by the World Herald or the dollars of support spent by the Vegas casino interests.

Capitol Correspondent 10/22/04

Persevere, It Will Soon Be Over

If you’re like me—and I hope that’s not the case—then you’ve reached the point in this election cycle at which frustration is rapidly on the rise. It’s all that political spinning and advertising that are getting to us, in a mostly negative way.

"You’ve got to be kidding" and "Give me a break" are my two most charitable responses to most of what I’m viewing and hearing as the cycle moves to 10-days-and-counting until Election Day.

If the election took place tomorrow, it would not be soon enough. Perhaps I should get an absentee ballot and get the voting over with. Still, the process wouldn’t know the difference and would continue to treat me as the last undecided on the face of the planet and worthy of every last dollar of attempts to influence my decisions.

A lot of the frustration is, I think, a result of being worn out by all the advertising that has been trying to influence me to vote in favor of expanded gambling in Nebraska. Goodness gracious. Even I’m smart enough to know that dollar bills don’t fly around on their own, even if they could be folded just right.

If expanded gambling is so tremendously wonderful and beneficial for the economic and social well-being of children and local communities and the public schools and the streets and roads and trails and parks and conservation, etc. etc., then we should all be rocked and reeling from the guilt of having waited so long to turn to this solution. Funny, I’m still waiting to experience my first tinge of that guilt.

Even if I could determine the extent of the gambling campaigns’ influence on my pre-vote thinking, I wouldn’t reveal it. I know one thing: I still haven’t been influenced enough to call it "gaming" instead of what it really is, which is "gambling."

Consistency, Coherency Often Absent

Not all of the frustration is being caused by the gambling measures. A variety of candidates are contributors as well. These are the ones for whom consistency and coherency are lacking on some crucial issues of the day. Some of them are defiant Catholic politicians, but not all.

The lack of consistency and coherency seems to be especially prevalent on high stakes moral issues, such as waging war and achieving peace, destroying human beings in their embryonic stage of development in order to harvest their stem cells, and defining the institution of marriage.

The elections will be over soon. Now is not the time to succumb to frustration. It is necessary to persevere, to stay upbeat, to remain intent and focused, to respond positively, like the Callahan troops in the aftermath of humiliation. Yeah, that’s it.

Walk in Their Shoes

Next month, and on into December, the "Walk a Mile Project" will be underway in Nebraska. It is an innovative, educational program, the goal of which is to bridge the gap between policy makers and public assistance recipients, whose lives are affected by government policies.

Participating policy makers—legislators and bureaucrats—will have the opportunity to get to know a low-income constituent and to learn in more of a first-hand, realistic way about the real life issues that these constituents face every day. At the same time, these constituents will have an opportunity for greater involvement in the public policy process. The idea stems from "walking a mile in my shoes" as a means of promoting greater personal understanding.

For a number of years, several senators helped to coordinate a "poverty luncheon" during each legislative session. Legislators and other government officials would attend. The menu would be a typical meal purchased with food stamps. In some ways, Walk a Mile is an extension of those earlier events.

During the month of the project, each policy maker and his or her their low-income constituent will participate in at least two person-to-person activities, such as visiting a human-services office, a public meeting, or a food bank or grocery store. Also, the policy maker will feed his or her family on the amount of food stamps they would receive for that period.

The Nebraska Catholic Conference has endorsed the Walk a Mile project.

And Finally….

Thanks and compliments are in order for the many candidates who participated in the Nebraska Catholic Conference voter information project. They participated by responding to a multi-issue questionnaire. There were separate questionnaires for the U.S. House of Representatives and the Nebraska State Legislature. The overall participation rate was satisfactory.

Candidates for these offices are typically inundated with questionnaires from many different organizations. It takes time and effort to respond. Therefore, the Nebraska Catholic Conference appreciates participation and voters should as well.

Capitol Correspondent for 09/24/04

Registration and Voting Processes Are Easy

Just a little over a month remains until voters across the county, including here in Nebraska of course, will make some really significant decisions about who will represent us all in positions of government leadership on federal and state levels. It is just about impossible to overstate the importance of what is taking place November 2.

The freedom-based right to vote is something to be cherished, not ignored. It worthily claims our fully responsible response.

While individual voting may seem insignificant in "the big picture," and "no big deal" if we miss it, such attitudes fail to appreciate what we have a right to do and what oppression would be like if we were denied that right.

The way we now have it, the only bases upon which we are denied that right, as adult Americans, is if we do something, or fail to do something, on our own volition, which forfeits our vote; for example, failing to make it to the polls on election day.

Register to Vote

Another really soft excuse for not voting is the failure to be properly registered.

Registration is required in order to be eligible to vote in Nebraska. Any resident who is a U.S. citizen and 18 years of age or older on General Election Day is eligible to register to vote in this state. Such eligibility does not exist, however, for someone who is under sentence for a felony or who has been adjudged mentally incompetent.

Generally, once one registers that’s good enough. However, there are changes in circumstances that make it necessary to re-register. If one has changed his or her name (e.g., through marriage), residence/address or political party affiliation, then a new registration is necessary. A misconception to put to rest is that failure to have voted in a previous election triggers a need to re-register; that’s not true.

It is possible to register (including re-registration) by mail or by presenting oneself in person at the Election Office or satellite registration sites. Mail-in registration forms are available at many sites throughout each county. These forms must be postmarked no later than October 15 in order to be a valid registration. The deadline for in-person voter registration is Friday, October 22 at 6 p.m.

Another reason why failure to vote is generally inexcusable is the fact that every registered voter has the opportunity to vote absentee. The first step is applying for an absentee ballot. An application can be made through the mail or in person. In addition, a would-be voter can have an agent apply for and/or pickup an absentee ballot.

The period for applying for an absentee ballot will expire October 27 for mail-in applications. The deadline for a voter or agent to pick up an absentee ballot is 7 p.m. election day.

The period for submitting absentee ballots begins Monday, September 27. More importantly, in order for the votes to count, absentee ballots must be returned by 8 p.m. on Election Day. This deadline applies to all absentee ballots, including those picked up by an agent just an hour earlier, and all others returned by mail or in person.

As the information shows, the process for voting is really a snap in most situations. However, deciding on specific votes, that’s not quite so easy! Now is the time, in fact, to be reviewing information in order to make informed, morally sound decisions.

The ballot here in Nebraska won’t be limited to candidates for public office. There are issue questions as well.

It should be pretty obvious by now, given all the publicity and hype, that proposed expansion of legalized gambling is hot and heavy among these issues.

It’s a good bet that many of us are going to have more than enough of the advertising glut and war of words that will continue between proponents and opponents of expanded gambling right up until Election Day. It’s also a good bet that there won’t be an absence of disingenuousness, on either side, as the campaigning intensifies.

Gambling Generosity

For example, a spokesman for the "Initiatives-times-Four" proposal, i.e. 417, 418, 419 and 420, already has claimed that having slot machines and mini-casinos in local communities won’t have a negative impact on fundraising by nonprofit organizations, some of which have relied in part on bingo, pull-tabs, lotteries and/or raffles, that is, those endeavors traditionally regarded as "charitable gambling."

The Ix4 rep doesn’t say why the fanciful new competition wouldn’t harm nonprofit fundraising, except something about how the new gambling entrepreneurs will be magnanimous in sharing their profits with local causes.

Perhaps.

Recently, data was released showing that "charitable gambling" revenue has dropped in nine of the last 10 years in Nebraska. The decline has been 36 percent since 1994. The State Revenue Department likes to point a finger at the video slot machines and other casino gambling in bordering states as the culprit behind this decline. However, there’s disingenuousness in that finger-pointing as well.

Don’t overlook the State of Nebraska’s own lottery, which includes pull-tabs as well as other "attractions." Its enabling legislation passed in 1991, which means that the lottery itself, and also the moronic advertising that is used to promote it, probably didn’t hit stride until 1993 or so.

Capitol Correspondent for 08/27/04

"Tradition Continues: Watch for Another NCC Candidate Survey"

Since 1976, in conjunction with each General Election, the Nebraska Catholic Conference has sponsored and coordinated an issue-based survey of candidates for key federal and statewide public offices. Whether for the U.S. Congress or Governor or the State Legislature, it has always been a multi-issue questionnaire, the responses to which have been published prior to Election Day in the three diocesan newspapers.

This is a permissible election-year activity for the Conference, which is an association of the three Catholic dioceses, representing their mutual interests and concerns on matters involving public policy.

The project has its roots in the Church’s teaching about political responsibility and faithful citizenship. It provides information to Catholic Nebraskans about the positions of candidates on a range of issues. It does not endorse or oppose any candidate for public office. In fact, great care is taken to ensure that a uniform and consistent approach is taken in soliciting responses from all candidates; all are treated impartially.

It would be too much to claim monumental success for the project, but no exaggeration to claim more than moderate success. With such a long tenure, the NCC survey has established familiarity and credibility among many candidates, which is important, as there are more and more "special interest" questionnaires competing for time and attention every election season.

In recent election years, the rate of response to the NCC questionnaire has been 80 percent or better.

A couple of factors have to be acknowledged, however. First, this project takes a lot of effort and coordination on the part of the staffs of both NCC and the diocesan newspapers. We know and acknowledge that we have tested the patience of the newspaper staffs; always we are grateful for that patience and their cooperation. Likewise, from the other direction we have experienced some frustration over the years. Indeed, the best part of the project has always been publication of the final product.

The second factor we have to acknowledge is that questionnaires are a nuisance for candidates. For many of them, time is a precious during the campaign season. The plethora of questionnaires is undoubtedly a burden. What’s more, some care has to be given to responding, because carelessness or lack of attention could result in communicating misleading messages to voters.

Stop or Continue?

Frankly, six weeks ago we were giving serious consideration to not proceeding with a candidate survey project this year, which would have marked the end at 15 consecutive General Elections. Some external influences were calling into question the validity, appropriateness and need for state Catholic conferences to be doing candidate questionnaires.

Some state conferences, perhaps a dozen or so, including the NCC, have been implementing these projects for a number of years and tend to believe in them. Several other state conferences are fairly new with the idea, giving it a try perhaps, but still rather ambivalent. Then there are a few conferences, as represented by their executive directors, who don’t believe in the idea, either because they think it displaces a teaching focus with nothing more than a conduit for candidates’ messages, or because it is more work than it’s worth.

To resolve our "mini dilemma," we consulted with the Diocesan Bishops, who encouraged continuing with the project, at least for one more cycle, but did not direct that it be so, and also with the diocesan newspaper editors. The editors also encouraged continuation of the project, emphasizing the importance of making this type of issue-based information available to a significant segment of voters throughout the state, and also the uniqueness of the communication.

Before making a definite decision, we sought input from another source: Catholic Nebraskans, laymen and women throughout the state. With assistance from a variety of Catholic organizations, representing all three dioceses, we constructed a sample of 300 adults, not exclusively random, but heavily random. Then we sent each of the 300 a three-question survey, asking: Have you been aware of and familiar with the Nebraska Catholic Conference General Election candidate survey? If yes, has the NCC candidate survey been meaningful and useful, that is, have you used the information to help you make voting decisions? Finally, we asked a question that wasn’t as precise as it needed to be, but essentially asking whether or not the NCC survey diminishes the type of direct voter-candidate dialogue that should occur.

Excellent Response

Of the 300 surveys sent out, 142 were returned. That’s a pretty strong response on a voluntary survey. Of that number, 125 respondents indicated that they have been aware of and familiar with the NCC candidate survey. And, all but one of the 125 indicated that they have, at least on occasion, consulted the information and used it to help make voting decisions.

On the last question, the one that was rather confusing, 92 respondents disagreed with the proposition that the NCC diminishes direct voter-candidate dialogue by doing an issue questionnaire. Most of the comments thereupon emphasized that opportunities for such dialogue are not readily or conveniently available and that a source of information is important.

So, based upon the encouragement of others and the results of our informal survey, it was pretty easy to decide to carry on with the candidate questionnaire for another General Election, this one coming up on November 2. Watch for publication of this NCC project in The Catholic Voice, the Southern Nebraska Register and the West Nebraska Register on October 15.

Capitol Correspondent for 08/13/04

Catching Up on Random Items

Last weekend, in lieu of yard work and household chores, which rank highly among all things to be in lieu of, we spent time catching up on reading material that had occupied a secure place in a briefcase that was toted back and forth between home and office for days and weeks, but hardly disturbed.

It is interesting what one can learn by taking time to catch up on items that were intriguing enough initially to be retained rather than tossed.

For example, a newsletter from the Center for Rural Affairs (CFRA), which is located here in Nebraska, but has a strong national reputation on policy issues affecting agriculture and rural life, had a lead article about how weak enforcement practices by the U.S. Department of Agriculture have made a virtual joke out of payment limitations, which supposedly keep government farm programs in check. The conclusion stems from an investigation by the U.S. General Accounting Office.

The policy behind payment limitations requires that recipients be actively involved in managing the farm. That requirement was instituted by Congressional action in 1987, after it came to light that farming operations were being divided into many corporations on paper in order to receive many times the payment limit.

The new investigation reveals that the 1987 reforms have not been effectively implemented. There are indications that the active management test has been more sham than substance. According to CFRA, one published report revealed that a 30,000-acre farm with more than 50 partners received $20 million in payments, presumably because every partner was regarded as an active farmer. That prompted Iowa Senator Chuck Grassley to request the GAO investigation.

Child Support from Prisoners

The June 2004 issue of Nebraska Criminal Justice Review includes an interesting article on an issue that perhaps is a little obscure in the big, complex picture of correctional concerns, but certainly must have a social impact. That issue is prisoners’ child support payments.

As described by the article, here’s the situation:

"In Nebraska, prisoners who are already under court order to make child support payments at the time they are incarcerated are not eligible for any reduction in those payments on the basis of their drastically reduced income in prison. On the other hand, if one goes to prison without a court order for child support, and then is sued for child support, the monthly payments can be determined on the basis of the prisoner’s present earnings rather than pre-incarceration earnings."

A 1985 ruling by the Nebraska Supreme Court is cited as the source of this public policy. A prisoner sought to have his divorce decree modified in a way that would suspend his obligation to pay child support. His reason was that his incarceration, obviously, caused a material change in circumstances relating to income. The Court denied the request, with the majority opinion stating as follows:

"…[W]e find no sound reason to relieve one of a child support obligation by virtue of the fact that he or she engaged in criminal conduct. There is no reason those who have had to step in and assume the applicant’s obligation should not be reimbursed by the applicant should his future position enable him to do so. Further, we do not see how the best interests of the children for whom the support was ordered would be served by temporarily terminating the applicant’s child support obligation."

The Court’s ruling was not unanimous. In fact, then Chief Justice Norman Krivosha wrote a dissent that presented the opposite point of view. In part, he wrote:

"We obviously recognize that the child support judgment will not be paid during the time that the parent is incarcerated, and therefore the judgment will simply accrue with interest. Such a situation provides little or no benefit to anyone….

"The fact that a parent is incarcerated should…not, in an of itself, preclude a district court from considering whether the facts justify a reduction in child support. Certainly, if the evidence reflects that the incarcerated parent has any assets, those assets should first be made available for the support of the child. But where, as here, it is made clear that at the present time the incarcerated parent has no assets and can do nothing about paying the child support judgment, the district court should, at a minimum, be permitted to consider that fact and not be automatically barred as we have now held…"

The NCJR concludes its article with a suggestion that perhaps the question of modification of prisoners’ child support payments should be studied by the Legislature.

Right On, Senator Bourne

We also took note of publicity given to efforts by State Senator Pat Bourne to ensure that rules and regulations promulgated by administrative agencies do not exceed statutory authority. Senator Bourne’s point is that agency rules and regulations should not cross the line into making law instead of implementing the law. If that does happen, then the Constitution’s separation of powers has been violated.

Kudos to Senator Bourne for giving attention to this issue. His case is credible. From our own experience, we have lost count of the number of times we have testified at administrative agency hearings that proposed regulations exceed the scope of statutory authority. Religious ministries have to be sensitive to this, because the non-governmental delivery of education and social services especially can be intruded upon and squeezed by excessive policies and overly assertive bureaucrats.

AND FINALLY

From the bulletin of a parish we visited for Sunday Mass during a recent out-of-state trip: "The Low Self-Esteem Support Group will meet Thursday evening at 7 p.m. in the social hall. Please use the back door."

Capitol Correspondent for 07/02/04

Time to Support Federal Marriage Amendment

For more than 200 years of our nation’s history, state laws have had a common understanding of and respect for the institution of marriage as a union between a man and a woman. (Much the same understanding and respect have existed for a whole lot longer in the context of civilization.) Now, in 2004, as the result of court decisions, some that have already been made and others that loom on the judicial horizon, the trend clearly is towards mandatory recognition of same-sex "marriage" as a matter of public policy.

What has for so long been so natural, so fundamental, so assumed, so taken for granted is suddenly subject to deconstruction by the judicial branch of government. Laws that limit marriage to male and female—new enactments as well as longstanding ones—are real shaky and unlikely to survive legal challenges premised upon constitutional law.

So shaky in fact that it is becoming increasingly clear that the only sure way to have a national rule that affirms and preserves the institution of marriage as a union of a man and a woman is to amend the United States Constitution.

One group of legal scholars has analyzed the situation this way:

"For many different reasons, it has become clear that neither state laws defining marriage, nor the federal Defense of Marriage Act will withstand the multiple challenges to the legal status of marriage in America that are currently being unleashed (e.g. Vermont, Texas, Massachusetts, Nebraska). A critical juncture has been reached: the progressive weakening of marriage is now so far advanced that we can no longer hope to preserve the understanding of marriage for future generations short of using the ultimate democratic tool available to the American people: a federal constitutional amendment."

Last week the United States Conference of Catholic Bishops announced that it "strongly supports S.J. Res. 30." This was significant movement forward from a position that had been limited to general support for the concept of a federal marriage amendment.

S.J. 30 is a concrete proposal to amend the U.S. Constitution. It currently reads as follows: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."

The first sentence simply defines marriage as the union of male and female. The second sentence leaves decisions on civil unions or domestic partnerships, that is, allocation of benefits and privileges traditionally associated with marriage, to the authority of state legislatures and the democratic process at the state level.

The stakes on this cultural confrontation are high. Consider the warning of Mary Ann Glendon, Learned Hand Professor of Law at Harvard University and an advisor to the Holy See:

"If these social experiments go forward, moreover, the rights of children will be impaired. Same-sex marriage will constitute a public, official endorsement of the following extraordinary claims made by the Massachusetts judges in the Goodridge case: that marriage is mainly an arrangement for the benefit of adults; that children do not need both a mother and a father; and that alternative family forms are just as good as a husband and wife raising kids together. It would be tragic if, just when the country is beginning to take stock of the havoc those erroneous ideas have already wrought in the lives of American children, we should now freeze them into constitutional law."

The first vote on the Federal Marriage Amendment could happen as soon a July 12. Since opponents are expected to filibuster, the key vote early on in the Senate will likely be on a motion to invoke cloture, to allow the Senate to vote on the substance and merits of the proposed amendment.

Now is the time for Nebraskans who are concerned about marriage, family life and the common good, most especially Catholic Nebraskans, to contact U.S. Senators Chuck Hagel and Ben Nelson to urge their support for S.J. Res. 30, and also for any effort to stop a filibuster and allow the Senate to vote on this vitally important matter.

The Catholic Church teaches that responsible citizenship is a virtue. Participation in the political process is a moral obligation. This is particularly urgent in light of the need to preserve the fundamental institution of marriage.

Contact information for Senator Church Hagel is as follows: Phone: (202) 224-4224; Fax: (202) 224-5213; E-Mail: Chuck_Hagel@Hagel.senate.gov. Contact information for Senator Ben Nelson is as follows: Phone: (202) 224-6551; Fax: (202) 228-0012; E-Mail: senator@bennelson.senate.gov.

Capitol Correspondent for 06/18/04

Call to Return to Basic Moral Principles

In its statement, Faithful Citizenship: A Call to Political Responsibility, the Administrative Committee of the U.S. Conference of Catholic Bishops reminds us of some somber facts, namely, that since the last presidential election and the Committee’s last reflection on faithful citizenship, our nation has been attacked by terrorists and has gone to war twice.

Even though these facts can drift away a bit during the busy pace of everyday living, they never will be too far separated from our consciousness as adult Americans. They are sobering reminders of the challenges our nation faces each and every day.

Indeed, in 2004 there are difficult challenges: political, economic, social, technological; but also, ethical, moral and spiritual challenges as well. The Administrative Committee describes them as "fundamental questions of life and death, war and peace, who moves ahead and who is left behind."

Given the times and the challenges, the committee’s calls for "a renewed commitment to faithful citizenship" and "a return to basic moral principles" not only are worthy of great attention on the part of American Catholics, but demanding of it as well.

Proper Formation of Conscience

In the Catholic tradition, as the statement emphasizes, all believers are called to faithful citizenship. That means, in general, making it a personal priority to become better-informed, more active and conscientiously responsible participants in the political process, i.e. elections and beyond. It means responding to a call to be a community of conscience and to test our civic and political responsibility by the values of Scripture and the principles of Catholic social teaching. A Catholic believer’s conscience is to be formed in light of his or her faith, i.e. moral convictions, not party platforms.

One of the foremost aspects of the Bishops’ document is that it sets forth key themes at the heart of Catholic social tradition. Herewith following is a summary of those themes.

1. Life and Dignity of the Human Person. "We believe that every human life is sacred from conception to natural death, that people are more important than things, and that the measure of every institution is whether it protects and respects the life and dignity of the human person. As the Holy See’s Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life instructs, ‘the Church recognizes that while democracy is the best expression of the direct participation of citizens in political choices, it succeeds only to the extent that it is based on a correct understanding of the human person. Catholic involvement in political life cannot compromise on this principle.’"

2. Call to Family, Community and Participation. "The human person is not only sacred, but social. The God-given institutions of marriage—a lifelong commitment between a man and a woman—and family are central and serve as the foundations for social life. Marriage and family should be supported and strengthened, not undermined. Every person has a right to participate in social, economic and political life and a corresponding duty to work for the advancement of the common good and the well-being of all, especially the poor and weak."

3. Rights and Responsibilities. "Every person has a fundamental right to life—the right that makes all other rights possible. Each person also has a right to the conditions for living a decent life—faith and family life, food and shelter, education and employment, health care and housing. We also have a duty to secure and respect these rights not only for ourselves, but for others and to fulfill our responsibilities to our families, to each other, and to the larger society."

4. Option for the Poor and Vulnerable. "Scripture teaches that God has a special concern for the poor and vulnerable….The Church calls on all of us to embrace this preferential option for the poor and vulnerable, to embody it in our lives, and to work to have it shape public policies and priorities…."

5. Dignity of Work and the Rights of Workers. "…Work is more than a way to make a living; it is a form of continuing participation in God’s act of creation. If the dignity of work is to be protected, then the basic rights of workers, owners, and others must be respected—the right to productive work, to decent and fair wages, to organize and choose to join a union, to economic initiative, and to ownership and private property. These rights must be exercised in ways that advance the common good."

6. Solidarity. "We are one human family. We are our brothers’ and sisters’ keepers, wherever they may be…. At the core of the virtue of solidarity is the pursuit of justice and peace. Our love for all our sisters and brothers demands that we be ‘sentinels of peace’ in a world wounded by violence and conflict."

7. Caring for God’s Creation. "The world that God has created has been entrusted to us….We show our respect for the Creator by our care for creation."

In a future column, we will look at another aspect of the Church’s "Call to Political Responsibility," namely, the manifestation of moral priorities in specific issues.

Also, readers are invited and encouraged to learn more about Faithful Citizenship on the web; go to: www.usccb.org/faithfulcitizenship.

Capitol Correspondent for 06/04/04

No Hunger for Legislators

It's a good time to catch up on some notes and nuggets while cheering the fact that May is finally over.

Something about May makes it tough to tolerate. It seems to drag on and last longer than it should. The shift from Spring to Summer spawns nasty, destructive weather; and we are reminded what muggy and sweat are all about. We learn once more what yard toil and a bad golf game are all about.

In odd-numbered years, May is the most hectic month involving the Nebraska Legislature. And in the even-numbered years, it's Primary Election month, which is a little exciting, but also too often brings deflating news of citizen apathy, as evidenced by uncontested races and poor voter turnout; 21 percent, ugh.

May brings Memorial Day, the most solemn of all national holidays, but it focuses on lives lost, often in violent combat. During a recent visit to the new World War II Memorial, as well as the Vietnam and Korean War Memorials, we felt the sense of reverence and lament, but could not help but think about how horrible war is.

Thankfully, June has arrived. There's a new attitude.

Excellent Resource

Here's a tip for anyone interested in a comprehensive overview of the 98th Nebraska Legislature: obtain a copy of the 2004 session-review issue of Unicameral Update, the periodical published by the Legislature's own Information Office. It is an excellent public-policy resource, summarizing dozens of bills in subject-matter categories. It also has a table that shows the ending status of every bill.

Unicameral Update is free. Contact the Unicameral Information Office: Box 94604, Lincoln, NE 68509; (402) 471-2877; uio@unicam.state.ne.us; www.unicam.state.ne.us.

Fate of the Session

During the wind-up days of their session, it is not unusual for legislators and their staffs to work into the evening. As a matter of convenience and facilitation for the process, meals are catered on site. Lobbyists typically share the tab; the expenditures are reportable, by the way, under rules governing accountability and disclosure.

Several of the senators send notes of appreciation to the sponsors. A couple of the more unique messages we received were these:

"Thank you so very much for your part in our late session nights dinners. Without your generosity we would have fainted dead away from hunger and would not have been able to do the state's business." And, "Thanks so much. Your thoughtfulness kept many of us from passing out from malnutrition, and undoubtedly saved the entire legislative process."

Let's hope those messages were expressed tongue-in-cheek; otherwise, the Legislature has problems greater than just where the next meal is coming from.

Not Fuzzy Enough

LB 37 flew mostly "below the radar screen" as it made its way through the legislative process. It was introduced during the opening session in 2003 and eventually made it to Final Reading, with relatively little floor debate along the way, on the day before adjournment sine die this year. There, finally, it received the scrutiny it deserved.

The bill proposed to create a wage-replacement savings plan, allowing eligible employees to designate a portion of their wages for a State-operated trust to be drawn upon in the future to subsidize unpaid leaves of absence for medical or family reasons. The proposal offered the incentive of state income tax deductibility for the saved funds, therefore a tax expenditure for the State; such funds would be taxable upon withdrawal.

Before the final vote, several senators expressed concern about creating a new government program, especially one projected to cost the state money during time of a serious budget dilemma and an uncertain overall economy.

"It's a nice, warm, fuzzy idea," one senator was quoted, but "government can't be all things to all people." He's right of course; people can save on their own.

LB 37 failed to pass, on a 17-17 vote.

Matter Of Integrity

Regardless of how one views or reacts to the issues of excommunication and/or denial of Communion to Catholic politicians who uphold legalized killing of unborn human beings, whether by abortion or by destroying embryos for utilitarian purposes, it's important to keep clear what they claim.

For example, in the letter that 48 Catholic members of Congress sent to Cardinal McCarrick, one of their assertions relating to the Supreme Court's finding of a constitutional right to abortion is that members of Congress "who vote for legislation consistent with that mandate are not acting contrary to our positions as faithful members of the Catholic Church."

That assertion, which is not devoid of arrogance, begs an explanation. It need not be accepted as fact just because of who says it.

It's easy for these politicians to bluntly say their actions are not contrary to faithfulness, but can they satisfactorily explain that? The assertion certainly rubs against the clarity and steadfastness of the Church's teaching opposing the direct, knowing, deliberate taking of innocent human life. Therefore, what rationale supports their assertion? These politicians should either acknowledge that their political actions are contrary, or they should succinctly explain why that's not the case. It's a matter of integrity.

Capitol Correspondent for 05/21/04

Abundance of Litigation Lies Ahead

Since two people of the same gender can now obtain a marriage license, get married and be regarded as spouses, all in accord with civil law as it presently exists in the Commonwealth of Massachusetts, it seems like an appropriate time to consider the situation here in Nebraska.

In Massachusetts, same-sex marriage became presumptive public policy when the state’s Supreme Judicial Court ruled, 4-3, last November 18 that restricting the benefits and obligations of the legal status of marriage to man-and-woman unions violates the Constitution of the Commonwealth as currently constituted. Later, on Feb. 4 of this year, the same Court ruled that establishing and recognizing same-sex "civil unions" as a matter of law was not good enough; it’s marriage and nothing else. The expanded, civil-law concept of marriage took effect May 17

It is important to keep in mind that these are state law rulings. Massachusetts law does not trump Nebraska law. However, reverberations are being felt here and all across the country and will continue to be felt for a long time.

In Nebraska, Article I, Section 29 of the State Constitution states: "Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same-sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized In Nebraska."

That provision is in the state constitution due to the fact that 70 percent of state’s citizen voters approved it at the General Election in November 2000, when it was a ballot question. The proposed amendment had qualified as a ballot question due to the fact that nearly 160,000 valid citizen-signatures were collected on petitions in compliance with state-law requirements and deadlines.

So, given the current state of circumstances in Massachusetts and in Nebraska, what will happen if a homosexual couple who are legally married in Massachusetts take residence in Nebraska and then seek recognition of, and benefits from, the legal status they obtained in Massachusetts?

The first sentence of Article I, Section 29 seems to make it pretty clear that any marriage of two men or of two women is not valid in Nebraska. No such marriage will be recognized here; that’s a matter of public policy.

Similarly, what will happen if a homosexual couple that has entered into a civil union in Vermont, where that is lawful, take residence in Nebraska and seek recognition of, and benefits from, the legal status they obtained in Vermont? (Although Vermont’s law has existed for a while, apparently it has yet to spark a test case in Nebraska.)

The second sentence of Article I, Section 29 seems to make it pretty clear that a same-sex civil union is not valid in Nebraska and will not be recognized here as a matter of public policy.

Of course, these matters are not all that simple. In fact, they are complex, which is what brings the U.S. Constitution into the mix. It controls the broader context, depending of course on how it is interpreted and applied by Federal judges.

For one thing, it will surely be argued somewhere, perhaps not in Nebraska necessarily, that the full-faith-and-credit clause of the U.S. Constitution dictates acceptance and recognition by other states of all Massachusetts marriages. That’s not a slam-dunk certainty, however. Some constitutional law scholars make a point that the clause typically governs adversarial proceedings, not licenses.

Of greater relevance here in Nebraska is the fact that Article I, Section 29 is already and currently the subject of a distinctive legal challenge under Federal law. A little over a year ago, three plaintiff organizations filed a lawsuit in U.S. District Court in Omaha seeking to have this provision of the Nebraska Constitution ruled to be in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and ruled to be a bill of attainder in violation of Article I, Section 10 of that same cherished document.

On the first complaint, they claim that Nebraska’s Constitution disqualifies homosexual couples from seeking protection for their committed relationships through the ordinary political process or from government employers, while allowing others to seek and to enjoy such protection without constraint. On the second complaint, they claim that Nebraska’s Constitution legislatively punishes homosexual couples, without the protections of a judicial trial, by depriving them of an essential component of citizenship and damaging their social, cultural and political existence.

The State of Nebraska, represented by the Attorney General’s Office, responded with a motion to dismiss the suit, but the Federal Judge denied that motion last Nov. 10.

The litigation is slowly proceeding toward a ruling by the Judge on the Plaintiffs’ plea that Article I, Section 29 be struck down and permanently enjoined. Whichever side loses will no doubt appeal to the Eighth U.S. Circuit Court of Appeals.

The only conclusion that can be made with confidence is that a whole lot of litigation lies ahead, involving and affecting Nebraska and perhaps several other jurisdictions as well. Ultimately, the U.S. Supreme Court is likely to decide what states can and cannot do insofar as defining marriage as a matter of public policy.

More than ever, these are matters for prayer and trust in God’s guiding hand.

Capitol Correspondent 05/07/04

Salute to Departing Legislators

At least seven current state legislators will not return when the 99^th Nebraska Legislature begins its first session next January. These seven are not seeking re-election, so barring any special session between now and the end of 2004, they experienced their final day of lawmaking on the floor of the historic George Norris Unicameral Chamber when this year’s regular session ended April 15.

Quite appropriately, they were saluted by the Governor and honored by their colleagues and staff during concluding ceremonies just prior to adjournment sine die.

All Nebraskans, and most especially their respective constituencies, owe the departing legislators a debt of gratitude for public service. Sure it’s an honor to serve—they become part of an elite grouping of Nebraskans and an important participant in formulating the state’s history—but it requires a tremendous amount of dedication, as well as a personal and family commitment of time and effort. The compensation is virtually insignificant considering their role as legislators, certainly nowhere near the value of the contributions they make to governing or the responsibilities they fulfill.

In aggregate, the seven senators who are for sure not returning in 2005 represent 74 years of legislative service. That’s a huge loss of experience and is bound to have at least a short-term impact on the legislative process.

Most certainly, from both a personal perspective and on behalf of the Nebraska Catholic Conference, we express thanks and recognition to these legislators. They have served honorably. They have made positive contributions to the common good of Nebraska and its citizens. Following is a brief profile on the seven lawmakers.

Senator Paul Hartnett of Bellevue has represented District 45 since 1985. That’s 20 years of legislative service on behalf of his constituents and all citizens of the State. He leaves as the long-term chairman of the Urban Affairs Committee and also as a veteran member of the Revenue Committee.

Senator Jim Jones, whose address is Eddyville, Senator Floyd Vrtiska of Table Rock and Senator Curt Bromm of Wahoo were members of the entry class of 1993; each will have served a dozen years. They represent districts 43, 1 and 23 respectively.

Senator Jones has been a strong voice for farming and ranching throughout his tenure, including long-term service on the Natural Resource committee. Most recently he also has been Vice Chairman of the Transportation and Telecommunications Committee and a member of the Legislature’s own governing council, the Executive Board.

Senator Vrtiska has had an interesting and commendable mix of both rural and urban interests. He has been a long-term member of the Agriculture Committee, including its Vice Chairman, but also has served as chairman of the Business and Labor Committee during two Legislatures.

Senator Bromm has been a prominent part of the Legislature’s leadership, most notably as Speaker the last two years. Prior to that he was chairman of the Transportation and Telecommunications Committee. He also served on the Education, Banking and Natural Resources committees during his tenure.

The Legislature loses a gem with the departure of Senator Gene Tyson of Norfolk. He has served the 19^th Legislative District since 1997. It was virtually impossible to have a conversation with Sen. Tyson without learning something relevant to History or Literature or Philosophy or common sense, or even, on occasion, something about Saints or Popes of the Catholic Church. Given his straightforward articulations it was seldom difficult to know Senator Tyson’s position on an issue or legislative proposal.

Don’t be surprised if Senators Mark Quandahl of District 31 and Chip Maxwell of District 9, who are leaving after six and four years respectively, return some day to additional service in the Legislature. They have hinted at that possibility, even though they deem it important to depart now because of family considerations. These are sharp, well-spoken individuals who fit the mold of quality, effective policy makers.

Actually, the number of non-returning senators next year could exceed seven and even go as high as 15 depending upon election outcomes. (That process starts with the Primary on May 11.) Two legislators whose current terms do not expire for two more years, Senators Nancy Thompson of Papillion and Matt Connealy of Decatur, are candidates for other offices. In addition, six current legislators—Senators Ray Mossey (3), Lowen Kruse (13), Pat Engel (17), Mike Foley (29), Carroll Burling (33), and Joel Johnson (37)—have at least one opponent as they bid to return for another term.

Twelve other current legislators are unopposed as they run for re-election.

The lawmaking process will feel the impact of at least seven legislators leaving and at least seven other Nebraskans taking over. It is turnover happening in the natural course of events. Turnover of a compulsory variety can now be anticipated. Voter-enacted term limits kick in at the close of the 99^th Legislature. A turnover ratio of seven out of 49 won’t seem like much when replaced by a ratio of 20 out of 49 in 2007.

Capitol Correspondent 04/16/04

Bill Victim of Shabby Treatment

Perhaps, in retrospect, the 98^th Legislature’s second session, which concluded April 15, will be looked upon as more productive and successful than it seems in the immediate aftermath. Some of the grumbling and grousing that took place among lawmakers in the last few days of their session suggests not, but it’s really too early to judge. Time will tell the true impact of this session’s work. It’s all relative anyhow, to a broad array of concerns and interests.

If productivity and success are defined by the number of legislative bills that are processed through the system, which seems to be an obsession for some legislators, then maybe accomplishments fell short of expectations during these 60 legislative days. On the other hand, the basic purpose of the second session (even year) of each Legislature is to adjust the budget, to keep it balanced. That was accomplished, although not as extensively or thoroughly, or perhaps even as responsibly, as some would have liked.

The budget was "tweaked" to respond in a limited measure to the continuing deficit, but generally speaking lawmakers put off until a later time any really serious spending and revenue decisions. There are at least a couple of reasons why that could happen. One is that a lot was done about the deficit in 2003 and sessions prior to that; another is that there are indicators, and a sense of confidence, that the state’s economy is on the upswing. Perhaps the picture is getting brighter, although the anticipated big-bucks judgment for reneging on the low-level radioactive waste compact still looms as a dark cloud over the state’s fiscal future.

Part of the grumbling and grousing that took place as the 2004 session wound down was directed against LB 958, Lincoln Senator Mike Foley’s priority bill for the session.

LB 958 proposed to define and establish the crime of assault of an unborn child. It offered the logical extension of the Homicide of the Unborn Child Act, which the Legislature overwhelming passed in 2002 under Sen. Foley’s leadership, to serious, but non-lethal, injuries suffered by any child in utero as the result of intentional, knowing or reckless acts of any perpetrator other than the child’s mother. This idea would provide additional protection to the unborn outside of the context of abortion; protection that even the U.S. Supreme Court has acknowledged is lawful and legitimate, if not truly necessary.

On the morning of the 57^th working day of the session, LB 958 was finally called for first-round floor debate, under the category of "Senator Priority Bills." As expected, it incurred the filibustering wrath of Sen. Ernie Chambers and the opposition of others, including Sens. DiAnna Schimek, Chris Beutler and Patrick Bourne. Then, after only about three hours of debate, the Speaker of the Legislature, Sen. Curt Bromm, with some assistance from the chairman of the Judiciary Committee, Sen. Kermit Brashear, attempted to broker a "deal" that would have allowed a vote to advance the bill to the second stage of floor debate without Sen. Foley having to invoke cloture; a vote to advance from General File requires 25 votes, while a vote to invoke cloture requires 33.

The "deal" hardly got off the ground, however, because Sens. Foley, Chambers and Bromm did not have a meeting of the minds on its terms. Sen. Chambers demanded an assurance that the bill would not even be listed on the agenda for the 58^th day, thereby cementing the bill’s demise. Sen Foley acknowledged and agreed that LB 958 would fall in behind everything else already on Select File, and also bills on Final Reading to be returned to Select File for late amending, but he refused to concede to abandoning all hope that the bill would still receive further consideration in the normal process. Why even have a meaningless vote on a bill already declared to be dead?

Frustration set in as the wrangling intensified, leading ultimately to a motion to adjourn for the long weekend. The motion passed, and that was that. LB 958 was finished, and so were a few bills that were behind it.

In the aftermath of the drama and frustration, some targeted Sen. Foley as "the bad guy." One senator was quoted as saying, "There were some other bills that could’ve been heard. He stopped them all."

To that there is only one response: poppycock; baloney, if you prefer.

Senator Foley had the right to work vigorously for the passage of his priority bill, just like every other senator. He accepted the process; played by the rules. However, reality is that any bill having anything to do with unborn human beings, whether their protection or abortion, causes unease and is subjected to "unique" treatment. Consider some interesting facts about LB 958.

It was the 147^th legislative bill or constitutional amendment resolution introduced for the 2004 session, out of a total of 452. Of the 305 measures that were introduced after LB 958, 255 of them (84 percent) had a public hearing before it had its public hearing on February 18^th, which was the 27^th legislative day. Another 11 of them had a public hearing that same day, which means that only 39 of the 305 measures introduced after LB 958 had a later hearing date than it did.

Of the 67 measures that were assigned to the Judiciary Committee in 2004, 44 were introduced after LB 958, but only 12 had a hearing later than it did. After its public hearing on February 18, nearly a month passed before the bill was scheduled for a vote by the committee, despite its priority status. The vote was 6-1 to advance the bill. That outcome was reported to the full Legislature a couple of days later, on March 18, the 44^th legislative day, out of 60.

Based upon the procedures established for priority bills, LB 958 held the number-five spot among such bills designated for this session. In addition to the half-dozen or so priority bills with later designations that moved along in the process while LB 958 was awaiting committee action, five other priority bills with later designations were inexplicably vaulted over LB 958 for first-round debate on March 23, the 47^th legislative day. Even the sponsors of some of those bills expressed surprise that their bills were scheduled out of order.

In summary, LB 958 was introduced on the third legislative day, designated as a priority bill on the 11^th day, given a public hearing on the 27^th day, advanced to the full Legislature on the 44^th day and called for floor debate on the 57^th day, a "get-away day" just ahead of a long, holiday weekend. And this bill was a culprit. Hardly.

In addition, on the 55^th day, Senator Foley attempted what is a pretty common and understood maneuver at such a point in a legislative session; he endeavored to amend the provisions of LB 958 into another bill already at the second stage of floor debate. In this case, it was LB 943, a bill dealing with criminal procedure, which had already been amended to define one new crime and to modify others. His endeavor was stymied, however, by a quick, almost laughable ruling from the presiding officer, Senator Jim Cudaback, that the amendment was not germane. When Senator Foley moved to overrule the Chair, what should have been a slam dunk, received just 18 votes; 18 other legislators, most of whom would be regarded generally as supporters of pro life legislation, announced themselves not voting. It was bizarre, if not suspicious, almost as if scripted.

All these numbers and factors admittedly present a simplistic explanation of a complex set of circumstances. Nevertheless, there is evidence to suggest that LB 958 was manipulated to ensure its demise, not on the merits necessarily, but as a matter of timing. That happens in the process; the process allows for it. But there are no grounds upon which to blame or chastise Sen. Foley for the fate of other bills. If anything, his bill was the victim of shabby treatment.

Capitol Correspondent for 04/02/04

I-300 Important Public Policy

With the number of days remaining in the Legislature’s current session having dropped into single digits—eight as of April 1—it appears likely that some bills designated as priorities won’t be considered this year. LB 1086 looks like a bill that fits that category of those on the sideline.

Don’t waste time lamenting that result if it does indeed happen.

LB 1086 proposes to create the Nebraska Agricultural Opportunities Task Force, consisting of 15 to 20 members, all but two of who would be appointed by the Governor. The Task Force’s task would be to advise the Legislature whether the goals of Article XII, section 8 of the Nebraska Constitution have been realized (only after interpreting what those goals are, apparently) and also about "its positive and negative effects on issues of importance to the future of agriculture." The authority would include making recommendations for changing this part of the State Constitution.

It’s I-300

Article XII, section 8 is more commonly referred to as Initiative 300. It restricts corporate farming and ranching. More specifically, it restricts agricultural land ownership and engagement in farming and ranching under the shield of limited liability and tax benefits of non-family corporations. It has been part of the Nebraska Constitution for more than 20 years, having qualified as a ballot issue in 1982 pursuant to a citizens’ initiative petition drive.

Rightfully, supporters of Initiative 300 are wary of LB 1086. Rightfully, they view it as a potential threat to a longstanding public policy that is working as intended. Rightfully, they contend there is no compelling need or justification for any such study.

As mentioned numerous times in the past in this column, the Nebraska Catholic Conference is aligned with supporters of Initiative 300. At its meeting in early February, the governing board of the Conference decided unanimously to publicly express that support once again, by opposing LB 1086. Following are excerpts from testimony presented on behalf of NCC at the February 17 public hearing on this bill:

"…As we interpret the bill’s premise, it is that Article XII, Section 8 of the Nebraska Constitution—best known as Initiative 300—must be moderated, weakened or diminished in some fashion, although perhaps not totally nullified. The Nebraska Catholic Conference does not agree with that premise. In our view, Initiative 300 continues to be a valid and valuable public policy, which should be sustained.

"In order to explain further our rationale for opposing this bill, …a bit of historical background: In the mid and late 1970’s, even before the petition drive that resulted in Initiative 300 was launched, the Nebraska Catholic Conference joined with other church groups, organizations and family-farm advocates in urging enactment of statutory limitations on investment-motivated land ownership and agricultural enterprises by non-family-farm corporations…. When legislative efforts were stymied and unsuccessful, the Conference supported the initiative petition drive and then endorsed Initiative 300 when it qualified as a ballot question for the 1982 General Election. We applauded its passage, and subsequently have joined with others in opposing efforts to repeal or weaken it….

"The Conference’s position on Initiative 300 stems from support for the traditional concept of owner-operated family farms and ranches, for a family-based food production system and for principles related to ownership of land and stewardship of natural resources. It is also based upon concern over the concentration of land ownership in fewer and fewer hands and the risk that non-family, investment-motivated corporations and absentee ownership will dominate production agriculture. And, it is based upon concern for maintaining the culture and values of rural communities, in many of which, and so often, the Church’s presence is deeply rooted.

"The Conference’s view on these vitally important public-policy issues is grounded in Catholic social teaching, including these two principles: first, that economic life is not meant solely to multiply goods produced and increase profit or power; it is ordered first of all to the service of persons and of the entire human community; and secondly, that those responsible for business enterprises are responsible to society for the economic and ecological effects of their operations. They have an obligation to consider the good of persons and not only the increase of profits.

"More than 20 years ago, when we heard those who formulated Initiative 300 consistently describe its purpose as maintaining a level playing field between traditional family farms and ranches and investment-motivated, limited-liability entities, often controlled by absentee owners, that description and that message resonated with our Conference, particularly in the extent they align with our principles of social justice.

"As we consider LB 1086, in particular Section 4 of the bill, it strikes us that the underlying purpose of Article XII, Section 8 of the Constitution, steeped in social justice as we view it, is intended to be significantly weakened or diminished by the process set forth in the bill. The presumed outcome is that modifications are necessary and will have instant credibility as recommendations from a gubernatorial task force.

"…We look upon Initiative 300 as important public policy that assists in a cause of social justice and a cause of preserving a way of life that is to be highly valued. It should not be weakened or diminished. We see LB 1086 as a step toward doing just that…."

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