As prescribed by LB 709 (2005), a plan for reforming Nebraska’s medical assistance program has been timely submitted to the Legislature and Governor. It’s not a resolution of a major challenge; it’s the beginning of an extensive, multi-year process.

The challenge is how to reasonably and responsibly provide necessary and appropriate health care and long-term care for needy Nebraskans while also reasonably and responsibly controlling expenditures of government funds.

The medical assistance program is the state’s implementation of the federally guided Medicaid program, under Title XIX of the Federal Social Security Act. It is health care and long-term-care coverage for various categories of Nebraska residents, whose assets and income fall below program standards. Nebraska and the federal government share program costs, on about a 40-60-percentage basis. The State is required to cover certain eligibilities and services. It can opt to cover others. And, it can negotiate waivers to operate in ways other than those prescribed by the federal law.

The Reform Plan is the work-product of an assignment given to two state government officials: Dick Nelson, Director of the Nebraska Department of Health and Human Services Finance and support; and Jeff Santema, General Counsel of the Legislature’s Health and Human Services Committee. They had considerable input from an array of bureaucrats, interest groups and members of the public, including a panel of Nebraskans from business, government and health care, known collectively as the Medicaid Reform Advisory Council.

The Plan has a structure, made up of findings, recommendations for dealing with those findings, and strategies for carrying out the recommendations.

The first finding supports the Legislature’s primary motivation for “reforming” Medicaid in the first place. The Plan’s authors say, “The Medicaid Program in Nebraska, as it is currently structured, will not be fiscally sustainable in the future.”

This finding is based on figures, both actual and projected. According to the Plan, for the fiscal year that ended last June 30, Medicaid, plus the Medicaid-based State Children’s Health Insurance Program (SCHIP) and several other specific programs that have Medicaid components, consumed 20.1 percent of Nebraska’s General Fund appropriations. Assuming the same percentage, the General Fund appropriation available for Medicaid in 2025 is projected to be $1.4 billion. However, assuming continuation of the program as it now exists, but taking into account anticipated demographic changes and medical inflation over the next 20 years, these expenditures are projected to be $2.2 billion in 2025. That means a General Fund gap of $785 million between projected expenditures for Medicaid and projected appropriations available for such expenditures.

(Within the complex realm of Medicaid figures, there are some interesting and noteworthy specifics. For example, low-income children and their parents comprise nearly 77 percent of the Medicaid-recipient population, but less than 33 percent of Medicaid expenditures. Expenditures for elderly and persons with disabilities constitute 67.4 percent. Prescription drugs and long-term care are responsible for the greatest increases in Medicaid expenditures.)

So, what to do about this challenge? The Reform Plan offers both a short-term and a long-term approach. The short-term approach proposes 28 recommendations and specific implementation strategies, which, the authors say, should moderate the growth of spending—perhaps by as much as $31 million per year by as early as 2008—without significantly impacting current eligibility, provider reimbursements or covered services. For the short term, this would retain the current defined-benefit, or entitlement, framework of the program, a decision to be applauded, in our view.

The long-term approach is, of course, quite a bit bolder. It emphasizes the necessity of changing the underlying structure and public policy and of incrementally identifying and implementing other “necessary and appropriate reforms.” This includes monitoring reform efforts in other states; Nebraska is by no means isolated in trying to do something about Medicaid expenditures.

Even though structural and policy changes are proposed as a long-term approach, the very first short-term recommendation and strategy relate to this context. The recommendation is that “a reasonable and well-articulated public policy be developed and adopted for inclusion in the Nebraska Revised Statutes to guide future Medicaid program decisions.” The implementation strategy for this recommendation has the Legislature passing a bill in 2006 that puts the following language into law:

“The purpose of the Nebraska Medicaid Program is to assist low-income persons to obtain access to needed health care and related services. Funding for the programs will be based on an assessment of state resources and the competing needs of other state-funded programs.”

This is designed to set the stage for a paradigm shift, from the current defined-benefit program, in which eligibility and benefits are fixed, while costs are variable, to a defined contribution model, in which eligibility and costs are fixed, while benefits are variable and targeted.

This idea, clearly substantive, should not be accepted at face value. It should be controversial. We look for several legislators to challenge it. For one thing, they might ask what is intended to happen when, inevitably, the first sentence of the proposed new public policy comes into conflict with second sentence; that is, when the assessment of state resources and competing needs concludes that it’s not possible to assist all low-income persons in accessing needed health care? Looks, sounds and smells like a policy for rationing health care. That points in the direction of not regarding health care as a basic human right and of ignoring principles of social justice.

For this reason, and others as well, the newly issued Nebraska Medicaid Reform Plan is worthy of being reviewed and considered. A copy can be obtained from this website, www.hhss.ne.gov/med/reform/, or by contacting the Health and Human Services Committee of the Legislature, P.O. Box 94604, Lincoln, NE 68509; 402/471-2622.

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Capitol Correspondent for 12/02/05

Will Sideshows Captivate the Upcoming Session?

It appears that the upcoming 2006 session of the Nebraska Legislature, which starts Jan. 4, will have some interesting, controversial sidebars. They could become overriding distractions to the task at hand, which is to make sound public policy.

For one thing, it’s an election year, which always adds a little extra intrigue and energy to the proceedings.

It’s the Legislature’s session, but the executive branch has a significant role in the process. The evolvement of events has the incumbent chief of that branch, Governor Dave Heineman, facing a stiff electoral challenge, from the legendary Husker coach, Tom Osborne. The aroma of gubernatorial politics will waft throughout the State Capitol during the session and no doubt will influence some of the Unicameral’s decisions.

Theoretically, only four legislators are themselves facing re-election bids. They represent even-numbered legislative districts, of which there are 24 total. In 20 of these districts, the incumbent is not eligible, according to Article III, Sec. 12 of the Nebraska Constitution, to seek another term in his or her currently running legislative tenure. Supposedly that’s the situation. But the latest development involving this term-limit provision has created a sidebar, and it’s not just an issue for mere discussion; it has a life of its own, and even though it probably won’t affect legislative decisions in a direct way, for sure it will be on the minds of many during the 60 days of lawmaking.

This latest development, which came to light last week, is that at least one legislator who is subject to ouster by the term limit provision, Senator Dennis Byars of Beatrice, has announced an intention to file some form of lawsuit aimed at stopping the provision from taking effect. He wants to run for another consecutive term and says some 30^th-district constituents want him to do so. His legal claim apparently will be that both his rights and the interests of those he represents are being subverted, in violation of federal constitutional protections for due process and equal protection.

It’s unlikely that Senator Byars will be the only legislator involved in this challenge. Others have already expressed interest, including the longest tenured senator, Ernie Chambers, who is not due to be term-limited in the first instance, but in 2008.

There are Nebraskans, and some outsiders as well, who support and defend the term-limits policy, and so as this legal challenge generates more controversy, rhetoric and news coverage, an interesting dynamic will be present in and around the session.

Another interesting development relating to term limits is that an atypically high number of interested parties, close to a couple of dozen, have already announced their candidacies for election to the Legislature. It’s a tough task unseating an incumbent, so there’s little doubt that most of these already-announced candidates are anticipating open races as a result of term limits.

Another factor affecting legislative service, more so those who serve in the future, is that this Legislature already has passed, during its 2005 session, a resolution that proposes to amend the Nebraska Constitution in a way that, subject to voter approval, would increase the base salary paid to state legislators from the current $12,000 per year to $21,000 per year and also implement a regular, cost-of-living adjustment.

Issues relating to the Legislature won’t be the only added attractions for the upcoming session. There also will be the issue of what, if anything, the Legislature decides to do about University of Nebraska Regent David Hergert of Scottsbluff and his campaign improprieties. Will an attempt to impeach the embattled regent actually materialize? How much of a sideshow will this be? It may become a dominating scenario, but the guess here is that it will generate more rhetoric than resolution and will eventually wane in significance as other, public-policy issues command attention.

Education issues will command a lot of that attention. There are all kinds of things going on. There’s the tension between Omaha and adjoining metro-area school districts over the one-city, one-district idea. There’s the complex, uncertain status of last year’s LB 126, dictating the consolidation and reorganization of Class I school districts, as well as the citizens’ initiative referendum attempting to prevent that from happening. There’s also the issue of the adequacy of state financing for all different sets of school districts, both urban and rural.

Not to be overlooked or under appreciated in all that is going to happen over the next four months are issues stemming from the state’s fiscal health. Actual revenue has been exceeding projected revenue, creating a surplus. Spend more? Put more in reserve? Give something back to taxpayers? How is this situation going to be handled? It has political overtones that are hardly less than the fiscal factors.

Then, of course, there are all the other, “ordinary” issues; those carried over from 2005 and a few new ones, for which someone argues a sense of urgency.

It should be an interesting journey, this next legislative session. There will be a regular route and some side trips. Stay tuned. Pay attention. Make sure you’re onboard.

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Capitol Correspondent for 11/18/05

Medicaid Reform Alternatives Have a Lot at Stake

In the ordered, step-by-step process that is intended to reform Nebraska’s Medicaid program in order to address concerns about its fiscal sustainability, there now are, as of October 15, preliminary recommendations from the two key people leading the process. They are the “Medicaid reform designees”: Dick Nelson, Director of the Nebraska Department of Health and Human Services Finance and Support, designated by Governor Heineman, and Jeff Santema, Legal Counsel for the Legislature’s Health and Human Services Committee, designated by the committee’s chairman, Sen. Jim Jensen.

Medicaid is an insurance-type program, shared with the Federal government, which ensures the availability of a safety net of health care for those who have few assets and little or no income. The program, not to be confused with Medicare, is especially important for impoverished children, parents of eligible children, aged persons and persons with disabilities.

With their preliminary findings and recommendations, the designees offer a general framework and direction for Medicaid reform, building upon the authority and guidelines provided by the Unicameral when it passed LB 709 during the 2005 session. Their plan is to be ready for legislators on Dec. 1, so technically the process is still at an input stage, although it’s doubtful that any substantive aspect will change much.

One of the baseline, preliminary findings is that Nebraska’s Medicaid program is not fiscally sustainable as it is currently structured and operated. Over the past 20 years, the portion of the state’s General Fund used for Medicaid has grown from slightly less than seven percent to slightly more than 17 percent. This was an annual average growth of 10.8 percent in expenditures, while the State’s tax policies produced an average growth of overall General Fund revenues of 6.9 percent. Based on this history and on projected changes in the Nebraska’s population, as well as increased costs of medical care, expenditures for this program, in the absence of an overhaul, are likely to consume a greater share of General Fund appropriations, thereby competitively affecting other governmental programs that rely on General Funds.

Given this analysis, the reformers are convinced that “Substantial reform of the program is necessary.” Perhaps that’s true, but the nature and scope of reform are by no means clear.

The designees say (preliminarily) that “Medicaid reform in Nebraska may be accomplished in either of two ways.” One way would modify the current program structure. This would not entail significant changes in eligibility or covered services, but program improvements, including increased use of home and community-based services for aged and disabled populations, some form of case management of selected populations or disease categories, academic detailing on pharmaceuticals, strategies for controlling prescription drug expenditures and greater emphasis on public-private partnerships. There are plenty of ideas for improving the current structure.

On the other hand, the second reform strategy would involve a “complete restructuring of the current entitlement system.” This (preliminary) recommendation is to switch Medicaid from defined benefit, which is the current approach, to defined contribution. In other words, the switch would be from paying in whole or in part for all covered services to providing a defined amount of funding and making the recipients responsible for using it, either in obtaining appropriate insurance or health care services directly. It’s a fixed expenditure limit; simplified, it’s a lot like this: here, eligible person is your health care benefit; it’s all you get; use it wisely to access health care.

The designees suggest a plan for making this bold switch in structures. It would start with an appropriation of funding for a consulting contract, then hiring a consultant, who would be authorized to negotiate with the Federal government for a rules waiver.

Obviously, pursuing a defined contribution waiver would be more a long-term reform strategy. It also would be more controversial. There are reasons to question its effectiveness and to challenge it as a matter of sound and just public policy. As a representative of the Nebraska Hospital Association has pointed out, “this is rationing (health) care through rationing dollars.”

For one thing, it’s pretty obvious that if it isn’t implemented and operated with great care and without constant overriding concern about cost—if that’s even realistically possible—then its greatest negative impact will be upon low-income Nebraskans with the most significant health care needs. In order to save dollars it has to reduce the amount spent per recipient or restrict the amount, duration and scope of services. Thus, there is considerable risk that this will be harmful to the most vulnerable populations.

In addition, the defined-contribution model is based upon some assumptions that are at least questionable, if not altogether faulty. It assumes that Medicaid beneficiaries are currently over-utilizing services, that Medicaid is less efficient than private health insurance, that the State can accurately predict each individual’s need for health care services, and that cost effective insurance plans and managed care programs will in fact emerge to serve Medicaid beneficiaries.

There also is the bottom-line question of cost effectiveness. For one thing, this is an untested model. Only a handful of states, e.g. Florida, Vermont, South Carolina, have actually moved in this direction and they are not very far along with it. Moreover, given that administrative costs within the Medicaid program are, or at least tend to be, lower than the private health insurance system, how could turning over the administration of Medicaid benefits to private health insurance not lose that efficiency and be more costly?

It is understandable that those charged with recommending ways to reform Medicaid would not only offer a limited, more cautious approach, but a bold, aggressive alternative as well. Their bosses, the Governor and the Legislature, will decide between the alternatives, or perhaps some combination of the two. This is not going to be easy. Let’s trust they will be thorough and careful, because there are a lot of considerations at stake, including important values and principles.

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Capitol Correspondent 11/04/05

Microsoft Lawsuit Update

Last week, in time to meet a court-established deadline of October 28, the Nebraska Catholic Conference took some rather unusual action, different at least from the Conference’s usual and typical involvement in matters of public interest and public policy. The Conference exercised its right and opportunity to file an objection to the proposed settlement of a class-action lawsuit.

This is a lawsuit filed and pending. in the District Court of Dodge County here in Nebraska. The defendant is Microsoft, Inc. Perhaps you’ve heard of this corporation! If you’ve shopped for a personal computer or some business or word processing software, you probably at least have heard of Microsoft. It’s a giant in that market.

This lawsuit alleges that Microsoft, Inc. unlawfully used anti-competitive practices to monopolize certain markets and thereby overcharged Nebraska consumers who purchased certain software licenses. The suit alleges that these practices violated the Nebraska Consumer Protection Act. Microsoft denies the allegations; it maintains that it sold high-quality, innovative software products at fair and reasonable prices.

The named plaintiffs are two residents of the Fremont area, but their lawsuit against Microsoft was filed not only on their behalves, but also on behalf of all other Nebraskans, whether person or entity, similarly situated. Nebraska persons and entities are similarly situated, and thus in the class, if they purchased a Microsoft operating system and/or a Microsoft application indirectly, i.e., from a retailer or someone other than directly from Microsoft itself, or a personal computer with Microsoft software installed on it, between Feb. 28, 1997, and Dec. 31, 2002.

If you fit this described category, and if you did not specifically ask in writing by October 25 to be excluded from this lawsuit, you’re a member of the Class, which has become a “Settlement Class.” This is because lawyers for the plaintiffs and their class and lawyers for Microsoft are seeking to settle the case. The proposed settlement provides that Microsoft will issue up to $22.6 million in product-purchase vouchers to members of the “Settlement Class.”

If, as described above, you fit within in the Settlement Class, then you’re in line to share in these settlement benefits based upon the extent of your qualifying purchases. Depending upon the product(s), each purchase is worth a voucher of either $12 or $5. However, in order to make this happen you are going to have to file a claim no later than January 16, 2006.

This is the matter we wrote about in this column in late July 29, 2005. However, it is not the idea of settling this case, or the amount of the settlement, or the claims process that has cased the Nebraska Catholic Conference to file an Objection to the proposed Settlement, which it is eligible to do because it had several qualifying purchases and is therefore an entity member of the Class. Rather, NCC’s objection is based upon a deficiency in the Proposed Settlement regarding what happens after the claims process has run its course.

Obviously, it’s not only possible, but even more it’s likely, that not enough valid claims will be filed to use up the maximum cost of the settlement, i.e., the $22.6 million. Moreover, it’s also likely that not all of the vouchers issued to claimants will actually be redeemed for future purchases.

So, what will become of these balances of unclaimed and unredeemed amounts? This is known as the “cy pres” remedy; “cy pres” being an equitable doctrine often applied to determine the distribution of the benefits of lawsuit settlements.

Well, as for its “cy pres” remedy, the proposed settlement agreement suggests that half of these balances will be retained by Microsoft and the other half will be distributed to public school districts that operate one or more schools (elementary, middle, junior high or high schools) at which at least 50 percent of the attending students are eligible to receive free or reduced-price meals through the National School Lunch Program.

This part of the proposed settlement is clearly deficient. While assisting and enhancing the educational programs of economically disadvantaged children and youth are praiseworthy objectives, the approach proposed by this settlement is fundamentally unfair. Ironically and disconcertingly, in presuming to perform in accordance with an equitable doctrine, i.e., “cy pres,” the proposed settlement is affirmatively inequitable. This is so because by its terms it provides for cy pres distributions only to benefit students in public schools, and excludes any and all non-governmental schools that serve the educational best interests of significant numbers of economically disadvantaged students. The obvious, consequence, clearly unjust, is discrimination against the students enrolled in these schools.

Using the same Nebraska Department of Education data and reporting period that the proposed settlement would use to identify the eligible public schools, one finds at least 14 non-governmental schools, all with Catholic religious affiliation, in which no less than 50 percent of the attending students were eligible to receive free or reduced-price meals through the National School Lunch Program. These 14 schools educated an aggregate total of nearly 1100 students. The student bodies in four of the schools are predominantly African-American; in two of the schools predominantly Hispanic; in another, predominantly Native American. Several of the schools are urban and several are located in economically depressed rural areas. In all cases, they operate under the burden of meager finances and most definitely could benefit from the cy pres distributions of vouchers for computer and software purchases.

While the settlement is something negotiated between private parties—it doesn’t have anything to do with the government or “separation of church and state,” or Establishment Clause jurisprudence—it is subject to approval by a judge of the District Court in Dodge County. A hearing on this question will be held in the court on November 17. The standard for approval is that the settlement must be fair, reasonable and adequate. As proposed it fails this standard on all counts. This is what caused the Nebraska Catholic Conference to file an objection.

The objection rightfully argues that the necessary remedy for equity and justice to be complete in this matter, in order to avoid a manifest injustice, is for the settlement agreement to be amended so that all schools, private as well as public, which meet the criterion low and limited-income enrollment are eligible for the cy pres distributions.

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Capitol Correspondent for 10/07/05

Medicaid Reform Efforts Seek Public Input

One of the bills that the Nebraska Legislature passed during its 2005 session was LB 709, establishing an approach and process for “reforming” the state’s medical assistance program. It’s essentially Medicaid, an insurance-type program shared with the Federal government in terms of funding and administration, which fights poverty by ensuring the availability of a safety-net level of health care for those who have few assets and limited income. The program is especially important for impoverished children and senior citizens and those with disabilities.

There are some in the Legislature, as well as the administration of Governor Heineman, who are alarmed by the extent and rate of growth of state spending for the medical assistance program. That spending is reasonably manageable now, but growth over the past few years and projected growth for future years suggests to them that more extensive controls on this spending have to be developed and implemented, sooner rather than later. Acting now to stem the tide of potential, future fiscal problems is apparently the essence of LB 709, as well as its justification as a matter of public policy.

The rub of course is that the steps ultimately taken to rein in spending growth might tear holes in the safety net of health care for those who are least assured of having access to it in a frustratingly complex marketplace. The obvious, most direct and politically enticing approach is to further constrict eligibility and to cut back on the scope of benefits. But it’s not that simple, from a human or social justice perspective. Moreover, by no means is this suggesting that problems of accessibility and adequacy of health care coverage are limited to Medicaid; there is a much broader context that encompasses the realities of persistently escalating health care costs, other elements of the insurance industry and both economic and social stress for employers.

One characteristic of LB 709 is that it is heavy with process, at least superficially. While a talented, conscientious appointee from the Heineman administration and a talented, conscientious appointee from the Legislature’s staff share the heaviest load of responsibility for meeting the public-policy objectives of LB 709, there also is an advisory council of sharp, business-oriented citizens, which is helping to guide the process. This council has been meeting regularly, assessing a great deal of data, reacting to concepts and formulating recommendations.

Public input is also an important element of the process, at least superficially. The value of input is a consistent refrain from those in charge. To that end, a series of public hearings has been scheduled for late October and early November. What specifically there will be to testify about, in terms of actual, proposed “reforms” and statutory changes, is still uncertain at this point, but the general ideas of preserving the health care safety net and emphasizing that health care is significantly more than a commodity are certainly worthy of attention.

The schedule for these public hearings starts in Omaha on October 25. It follows with Lincoln on October 26, Grand Island on October 27, Scottsbluff on November 1 and North Platte on November 2. Each of these hearings is scheduled to begin at 7 p.m. local time. More information about these public hearings, about the overall process that is carrying out LB 709, and about past and projected utilization data for Medicaid is available at these websites: www.hhs.state.ne.us/med/reform and www.unicam.state.ne.us/committees/hhs.

Mini-Flap to the Playground

Did the news a few weeks ago about activists from one political party purchasing website addresses containing the names, or other identifiers, of candidates and potential candidates from the other party officially qualify as a “mini flap”? Another election season is drawing closer, so it’s beginning to be “mini flap” time.

Apparently, buying web addresses is a pre-emptive political strategy, intended to create roadblocks and nuisances for opposed candidates. One media-exposed example was that of an officer of the UNO Democrats purchasing www.tonyojeda.com. Tony Ojeda is an announced candidate for the State Legislature. It has been reported that he is a Republican. (Gosh, we thought the Legislature was non-partisan.)

Another media revelation was that an officer of the state Democratic Party already owns www.daveheineman.org and, of all things, www.coachosborne.com. Careful now, that latter acquisition invades some pretty hallowed territory, beyond politics.

An Omaha World Herald editorial called the tactic, which apparently is not illegal, an abomination, ethically speaking. While that’s adequate, “childish” is probably just as good a description.

Another riveting component of this “mini flap” is that the executive director of the state Democratic Party, hastening to point out that the tactic originated in other states, was reported to have offered this jewel of a justification: “Republicans started it.”

Surely he must have been whimpering a bit when he offered that playground-type explanation.

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Capitol Correspondent for 09/23/05

Nebraskans Can Make a Difference

The federal Food Stamp Program has been described as the first line of defense against hunger in the United States. As the United States Conference of Catholic Bishops has pointed out, the Food Stamp Program is essential to making sure that over 23 million people in this country—low-income families, children, the elderly and people with disabilities—avoid hunger. More than half of these beneficiaries are children and many of the rest are senior citizens.

Cutting the federal food stamp budget would be a lousy deal. Moreover, given the obvious fact that many Hurricane Katrina survivors, left with no resources, will need the assistance of food stamps during a long recovery period, cutting funding from this program makes even less sense now than it did just a few weeks ago, if that’s possible.

Three members of Nebraska’s congressional delegation, Reps. Jeff Fortenberry and Tom Osborne and Senator Ben Nelson, are in important positions to help make sure that funding for the Food Stamp Program is not cut. We hope they take the lead.

A Congressional Budget Resolution passed last April requires that $3 billion be cut over five years from programs under the administrative authority of the U.S. Department of Agriculture. These programs include agricultural subsidies, conservation, and food and nutrition programs, including Food Stamps.

The Agriculture Committees of both the Senate and House of Representatives are obligated to prepare legislation that meets the target of the Budget Resolution. Initially the deadline for accomplishing this task was September 16. However, due to the absolute necessity of making public-policy responses to the hurricane disaster, that deadline has been pushed back to at least October 19.

Nebraska’s more direct connection to this legislative situation stems from the fact that both Reps. Fortenberry and Osborne are members of the House Agriculture Committee. Senator Nelson is a member of the counterpart committee in the Senate.

In order to keep from making unjust and unwise reductions in the Food Stamp Program, the task-worthy committees will have to rely upon alternatives in order to meet the $3 billion target. One alternative, attractive because it has positive, socially just policy benefits in and of itself, is to save by implementing tighter caps on agricultural subsidy payments. An offshoot of this response would be a measure of protection for small and midsize operations, rather than “mega payments” for “mega farms.” One such proposal would limit such payments to $250,000 per year per recipient.

A possible compromise, although we hope it does not come to this, is agreement upon the Bush Administration’s earlier-made suggestion of cutting Food Stamps by $600 million. That’s still 20 percent too much, and would cause some 300,000 people, to lose food stamps, but it might have to be the political result. It will be interesting to see how much traction this idea receives now that the needs of hurricane victims have to be factored into the decision-making process.

One claim likely to surface during the process is that the Food Stamp Program can weather the storm of cuts without undue damage, because the savings can be achieved by further reducing “waste, fraud and abuse.” Don’t buy into it. It’s rationalizing rhetoric, if not political posturing. It’s an exaggeration, if not totally bogus.

Great strides have been made in regulating food stamp eligibility and administration and seeing to it that benefits go to eligible households. The most recently calculated error rate was 5.88 percent, an all-time low.

Because they are in positions to help make a difference in the outcome of this matter, we hope Reps. Fortenberry and Osborne and Senator Nelson will act both vocally and behind the scenes to protect the Food Stamp Program. Concerned Nebraskans should be calling their offices to encourage them to do just that.

Parental Choice Within the Debate

Current controversies involving structure and financing of K-12 education in Nebraska are commanding public policy attention. And, of course, they have political overtones as well.

On one hand there are the newsworthy efforts to reverse by citizen referendum the Legislature’s decision—LB 126—to eliminate Class I school districts. This controversy has a longstanding, rural, small-schools context.

On the other hand, there is of more recent vintage the metropolitan, big-schools context involving the desire of the Omaha Public Schools to be “one city, one district” and the reaction by smaller districts in an around the city, both those that would be consumed and others that feel threatened.

Both of these controversies offer unique and intriguing perspectives on parental choice in education. The value of educational choice, if not the principle issue in the current tensions, is certainly within the scope of the debates. Parents and others who understand that true choice also includes non-governmental schools would do well to pay attention to what’s happening.

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Capitol Correspondent for 09/09/05

NCC Coordinates Response on Marriage-Case Appeal

Last May 12 a federal district court judge in Omaha ruled that Article 1, Section 29 of the Nebraska State Constitution violates the U.S. Constitution.

Article 1, Section 29 provides as follows: “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.” The citizens of Nebraska added this provision to state constitution by means of the initiative petition process. More than 160,000 valid signatures were submitted. The successful petition effort became Initiative Measure 416 on the General Election ballot in November 2000. The proposed amendment received 70 percent voter approval and thus became part of the Nebraska Constitution.

Obviously, the federal judge’s ruling and the entirety of the case constitute a matter of considerable significance. Not only does it involve important public policy affecting the institution of marriage, but the ruling spawned by the case marked the first time that a federal court has struck down a state constitution insofar as it reserves the institution of marriage to opposite-sex couples, the union of a man and a woman.

As is his right and authority, Nebraska Attorney General Jon Bruning, representing the interests of the State of Nebraska, appealed the district court’s ruling to the United States Court of Appeals for the Eighth Circuit, at which the matter is now pending. The Eighth Circuit encompasses the states of North Dakota, South Dakota, Minnesota, Iowa, Missouri and Arkansas, as well as Nebraska.

The Nebraska Catholic Conference, which is operated by the Diocesan Bishops to officially represent the mutual interests and concerns of the Archdiocese of Omaha and the Dioceses of Lincoln and Grand Island on matters involving public policy, and which supported Initiative Measure 416 when it was a ballot issue, has submitted a brief amicus curiae, i.e., as “friend of the court,” in the current appeal. The brief supports the State, seeking reversal of the district court judge’s ruling. Preserving the institution of marriage as exclusively the union of a man and a woman is a public policy cause of high priority for the Bishops. The opportunity to have a voice in the current judicial process could not be ignored for bypassed.

The Nebraska Catholic Conference has several amici partners on this brief, all of which have a profound interest in preserving the traditional institution of marriage. In fact, all 21 dioceses located within Eighth Circuit, either through their respective state Catholic conference, or individually in the case of the dioceses of Rapid City and Sioux Falls, South Dakota and Little Rock, Arkansas—there is no conference in either of these states—have joined in this important response.

Indeed, while the appeal is focused on the situation here Nebraska, the outcome will have ramifications throughout the Circuit. North Dakota, Missouri and Arkansas also have state constitutional amendments that define marriage as the union of man and woman, South Dakota will have such an amendment on its election ballot in 2006, and similar proposals are pending in Iowa and Minnesota. Differences in specific wording notwithstanding, these policies could be jeopardized if the Nebraska ruling is not overturned.

Also participating in this brief are Family First and Families for America, both Nebraska-based, family advocacy organizations, which, along with the Nebraska Catholic Conference, were participants in a coalition that supported IM-416 in 2000.

The brief of the amici curiae sets forth and develops two basic arguments. First, a State may indeed reserve the institution of marriage, including the rights, privileges and benefits thereof, to opposite-sex couples and not be in violation of either the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. This is the threshold question in the case, one that the challengers to Article I, §29 dared not ask and that the district court judge failed to answer.

Support for this first argument is firmly rooted in “the Nation’s history, legal traditions, and practices,” but even more, is inherent in the nature and purposes of marriage as a natural and social institution, which, derived from the complementarity of the sexes, serves as the basis of family and an essential component of the common good.

Secondly, since a state may reserve marriage to opposite-sex couples, such an otherwise constitutional public policy does not become unconstitutional merely because it is expressed in a state constitution rather than a statute. Neither the First Amendment nor the Equal Protection Clause of the Fourteenth Amendment forbids the people of Nebraska from amending their state constitution as they chose to do in 2000.

Contrary to the district judge’s understanding, nothing in the U.S. Supreme Court’s 1996 decision in Romer v. Evans held otherwise. Colorado’s constitutional amendment that was struck down in Romer was fundamentally different from Nebraska’s Section 29. And, the notion that Section 29 interferes with some asserted right to participate equally in the political process, a notion floated by the plaintiffs and accepted by the judge, not only has no legal basis relevant to this context, but is irrational as well.

Briefs from the side of the Appellees in this case are not due for several weeks. Then, oral arguments before a panel of Eighth Circuit judges will be scheduled. A decision could be rendered before spring. Then, a rehearing before the entire Eighth Circuit sitting en banc is likely to follow. Then, perhaps, the losing side appeals to the U.S. Supreme Court. A great deal of legal process lies ahead.

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Capitol Correspondent for 08/12/05

Campaign Seeks More Change in Attitude on Death Penalty

It is possible that Nebraska’s electric chair, “Old Sparky” as some have mockingly referred to it in recent years, will never again be used to kill a convicted murderer. It might happen that a court will rule that Nebraska’s protocols for death by electrocution violate the U.S. Constitution as cruel and unusual punishment. Or, it might happen that even before such a ruling is made, the Unicameral will change the method of execution to lethal injection. A bill proposing to do that, LB 506, is carrying over to the 2006 session, although it seems to lack momentum.

It is also possible, albeit much more remotely so, that Nebraska will never again carry out the death penalty at all, period. While there are several convicted murderers on the state’s death row, the extent of legal appeals and the serious questions that are being consistently raised about whether the death penalty can ever be truly just may delay the next execution long enough that public policy will defer to the obvious, that it is not absolutely necessary, as a matter of public policy, to kill convicted murderers in order to achieve the State’s interests in punishment and protection.

The social teaching of the Catholic Church supports making the second possibility, i.e., no more executions, a reality.

The relatively new Compendium of the Social Doctrine of the Church from the Pontifical Council for Justice and Peace underscores both the teaching of the current Catechism and Pope John Paul II’s justifiably renowned Encyclical Letter, Evangelium Vitae (the Gospel of Life). Paragraph 405 of the Compendium has this to say, in part, about the death penalty:

“The Church sees as a sign of hope ‘a growing public opposition to the death penalty, even when such a penalty is seen as a kind of legitimate defense on the part of society. Modern society has the means of effectively suppressing crime by rendering criminals harmless without definitively denying them the chance to reform.’’’ Whereas, presuming the full ascertainment of the identity and responsibility of the guilty party, the traditional teaching of the Church does not exclude the death penalty ‘when this is the only practicable way to defend the lives of human beings effectively against the aggressor.’ Bloodless methods of deterrence and punishment are preferred as ‘they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person.’ The growing number of countries adopting provisions to abolish the death penalty or suspend its application is also proof of the fact that cases in which it is absolutely necessary to execute the offender ‘are very rare, if not practically non-existent.’ The growing aversion of public opinion towards the death penalty and the various provisions aimed at abolishing it or suspending its application constitute visible manifestations of a heightened moral awareness.”

That last sentence is quite interesting, if not rather extraordinary. What’s more, it is relevant with respect to the moderating attitudes of American Catholics, including Catholic Nebraskans we have a hunch.

Last November, the highly respected Zogby International polling firm at the request of the United States Conference of Catholic Bishops conducted the largest and most comprehensive study of Catholic attitudes on the death penalty. Nearly 1800 Roman Catholic adults nationwide were interviewed.

One highly significant outcome of the survey was strong evidence of a general trend away from support for the death penalty. In past surveys, support for the death penalty was as high as 68 percent on the part of Catholics. But in last November’s poll, less than half of the Catholic adults interviewed, 48 percent, supported the death penalty, while 47 percent opposed it. Even more striking was the drop in the level of intensity among those who continue to support the policy; it had been cut in half, from a prior high of 40 percent to 20 percent in this survey.

The Zogby folks decided to obtain some fresh numbers a few months later, so in mid-March, 2005 they conducted a follow-up survey. The results were closely identical, but of note the second poll found a 10-point increase, from 27 to 37, in the percentage of Catholics who say they strongly oppose the use of the death penalty.

The March survey also found that nearly a third of Catholics, 29 percent, were “once in favor of the use of the death penalty, but now oppose it.” And, the foremost reason cited for this change is “religion/belief.” Four out of every five Catholics (79 percent) believe that opposition to the use of the death penalty is “consistent with the defense of human life.” This number includes 69 percent of those who describe themselves as somewhat supportive of the death penalty.

While the survey results are interesting, and positive signs in relation to Church teaching, they also are something to build upon. More efforts can be undertaken in terms of preaching, teaching and helping Catholics think about the death penalty and take political action on it. The U.S. Bishops’ Conference realizes this. In fact, the groundbreaking Zogby poll was presented in conjunction with the launching of a major Catholic Campaign to End the Use of the Death Penalty.

The Campaign brings greater urgency and unity, increased energy and advocacy, to a renewed call to end the use of the death penalty in our nation, including here in Nebraska, currently a “death penalty state.” The Campaign is not simply proclamation; it is an endeavor of formation and persuasion.

Information and materials regarding the Catholic Campaign to End the Death Penalty are available from its website: www.ccedp.org; it includes resources for both education and action. Take advantage of it.

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Capitol Correspondent 07/29/05

“Little Guys” Can Strike Back

Microsoft, Inc. is a giant. Those in the business world understand this. Most of us who use a computer at the office, or at home, even just as a hobby, have a sense of it as well.

On a rare occasion, a situation arises in which the “little guys” are in a position to give a giant a whack below the kneecap. Not a crippling blow by any means, but at least a small nuisance, a reminder that ordinary folks exist and that there are rules intended to protect their interests. A saga of this type is currently transpiring in Nebraska.

A class-action lawsuit that names Microsoft, Inc. as the defendant is moving towards settlement. The suit alleges that Microsoft unlawfully used anticompetitive means to monopolize certain markets and thereby overcharged Nebraska consumers who licensed certain software. The suit alleges that these practices violated the Nebraska Consumer Protection Act.

Microsoft denies the allegations, maintaining that it developed and sold high-quality, innovative software products at fair and reasonable prices. However, as giants are wont to do, it is willing to settle in order to flick away the nuisance of litigation.

The proposed settlement provides that Microsoft will issue up to $22.6 million in vouchers to members of the “Settlement Class.” This class consists of the named plaintiffs and all others similarly situated. Every Nebraska resident—whether business, family or individual—who purchased a Microsoft operating system and/or a Microsoft application indirectly, i.e., from a retailer or someone other than directly from Microsoft itself, or a personal computer with Microsoft software installed on it, between February 28, 1997 and December 31, 2002 is in the class and entitled to settlement benefits.

Some such consumers have received printed notice (beware the small type!) of the proposed settlement in the U.S. mail. These notices include claim forms. Otherwise, the rather complex notice also has been published recently in the Lincoln and Omaha daily newspapers and perhaps others as well.

Regardless of whether or not you received notice in the mail and whether or not you saw it in the newspaper, if you meet the criteria as a qualifying consumer during the time frame you are a class member entitled to settlement benefits if you comply with the claims process.

The proposed settlement is to work like this: Upon presentation of a properly completed claim, a class member will receive a voucher worth $12 for each qualifying purchase of a Windows 95, 98, 98 Second Edition and Millennium Edition license and a voucher worth $5 for each purchase of a Microsoft MS-DOS, Windows versions 1.0 to 3.2, Windows for Workgroups, Windows NT Workstation, Windows 2000 Professional, Word, Excel and Office software license.

Vouchers in turn will be redeemable, up to their face value, for cash reimbursement on purchases of a wide variety of computer hardware and software.

Of course, making claims requires paperwork. There is some hassle. The temptation is to think the hassle’s not worth a few bucks of rebates. But there’s a provision that can make this worthwhile; vouchers will be transferable, up to $650 worth per class member. And, recipients of transferred vouchers will be able to redeem up to $10,000 worth.

This means you will be able to transfer your vouchers of relatively limited value to your parish or school or the diocesan education office; if enough are received in aggregate, some truly meaningful purchases can be made at little or no cost.

Of course it’s possible, likely in fact, that not all of the proposed $22.6 million in vouchers will be claimed. And it’s also likely that a fairly sizeable number of claimed vouchers won’t be redeemed. Here’s how the settlement that’s on the table currently proposes to deal with these residuals: 50 percent of each of the two aggregated amounts is to be awarded as vouchers to public elementary and secondary schools in which at least 50 percent of the attending students qualify for free or reduced-price meals through the National School Lunch Program.

This particular idea is a much-to-be-lamented flaw in the proposed settlement. Any and all private and parochial schools that meet the low-income-enrollment test are excluded from the benefits, for no good reason whatsoever. This exclusion is fundamentally inappropriate and unjust. It may become the basis for filing an objection with the court that will decide whether or not to approve the proposed settlement.

In the meantime, it’s important to act on this, and to spread the word about filing claims in order to obtain vouchers for use or transfer. Claim forms will have to be postmarked no later than January 16, 2006 in order to qualify. The forms are available by calling (866) 778-1153, or they can be downloaded at the following web address: www.microsoftproductssettlement.com/Nebraska. (That’s right, litigation similar to this has been underway in other states as well.)

Also, for clarification or additional information, feel free to contact the Nebraska Catholic Conference, (402) 477-7517 or nebrcc@alltel.net.

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Capitol Correspondent 07/15/05

Pending Federal Legislation Would Give Tax Breaks to Families

"Currently, parents who spend thousands of dollars to have their children in day care receive a tax deduction [a credit actually], while families who are making fiscal sacrifices by electing to have one parent stay home to nurture children do not."

As reported by the Omaha World Herald that's what a constituent wrote to U.S. Representative Lee Terry, who represents Nebraska's Second District. The sentiment about this inequity in the Tax Code helped cause Rep. Terry to introduce H.R. 3080, the Parents' Tax Relief Act (PTRA). He presented it June 27 with a speech on the floor of the U.S. House of Representatives.

There is empirical evidence that most parents believe the best arrangement for the care of young children is to have one parent at home. The underlying issue, of course, is how to make that a more realistic fiscal option for parents. PTRA asserts that providing greater tax relief is a means of doing that.

H.R. 1080 proposes to accomplish its purposes through seven tax-policy changes, improvements in the context of Rep. Terry’s legislation.

The legislation would make the dependent care tax credit, which was first established in 1954, available to families that have one parent as a primary, at home caregiver for children under the age of six. It would make the current $1,000 child tax credit, which is due to expire in 2010, permanent and indexed to inflation. It would increase the personal tax exemption from $3,100 to $5,000.

PTRA would permanently eliminate the marriage tax penalty for all tax brackets; it's the policy that taxes married couples filing jointly at a higher rate than two single individuals earning the same income.

The legislation would create a standard home-office tax deduction, replacing complicated IRS regulations, as a way of supporting parents who wish to stay home with their children and still contribute to household income by operating home-based businesses. Similarly, it would provide tax relief as a means of encouraging employers to offer full-time and part-time telecommuting jobs.

Lastly, PTRA seeks to protect Social Security benefits for stay-at-home parents by allowing up to 10 years of flexible employment credits as they raise children through age six.

Rep. Jeff Fortenberry of Nebraska's First District is one of a dozen original co-sponsors of H.R. 3080. Also, a companion bill, S. 1305, has been introduced in the Senate by Sen. Sam Brownback of Kansas.

However much meritorious and well intended, PTRA faces a shaky fate. That's because the flip side of tax relief is lost revenue for the government.

Reps. Terry and Fortenberry face the stiff challenge of establishing that the equity and social-policy benefits more than justify the cost. Regardless of its outcome, this legislation definitely draws attention to an important issue.

Also pertaining to Federal legislation, Rep. Tom Osborne of Nebraska's Third District, deserves thanks and praise for being a principal introducer of the Hunger Free Communities Act of 2005, H.R. 2717. This is legislation promoted by Bread for the World and other anti-hunger advocates. It proposes to recommit the U.S. to the goal of cutting hunger in half by 2010, protecting national nutrition programs from budget cuts, and creating a grant program to help local groups fight hunger in their communities.

We're hopeful that the other four members of Nebraska's congressional delegation will add their names to this legislation, which symbolizes the need for a dedicated fight against hunger, both domestically and globally. According to Bread for the World, more than 36 million people in the U.S., including 13 million children, live in households that struggle to put food on the table.

On the Senate side of things, we salute Sen. Ben Nelson for taking a stand in support of the concept of a Federal Marriage Amendment; that is, amending the U. S. Constitution to preserve marriage for policy purposes as exclusively the union of a man and a woman.

Nebraskans in particular need look no further than the incredibly broad and arrogant ruling by an Omaha-based Federal District Court Judge, which struck down the citizen-initiated and voter-approved provision in the Nebraska Constitution that prohibits legal recognition of same-sex "marriage", to understand why a Federal constitutional amendment is fully justifiable and rapidly becoming an imperative.

While Senator Nelson has taken a step in the right direction regarding the fundamental institution of marriage as it relates to public policy, the reluctance of Senator Chuck Hagel to support the concept of a Federal Marriage Amendment is puzzling, to say the least. He has stated support for traditional marriage and opposition to the inherently false notion of same-sex "marriage", but seems oblivious to the clear signals that Federal courts are poised to dictate policy in this context. Hopefully he will be convinced sooner rather than later that state control over defining marriage is in jeopardy. Defense-of-marriage legislation helps, but is not sufficient within the full range of public policy. Given his views on the institution marriage, Sen. Hagel should join Sen. Nelson in moving to the forefront of preserving it.

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Capitol Correspondent for 06/24/05

Remembering Cunningham v. Exon

In 1977, I sued Jim Exon, in his capacity as Governor of Nebraska.

I thought about that recently, as the former Governor, who followed eight years in that office with three terms as United States Senator, was being eulogized and laid to rest with the respect and honor he rightfully deserved as one of Nebraska’s outstanding leaders and most noteworthy political figures.

My legal action against Governor Exon was what lawyers call “a friendly lawsuit.” We both were rather circumstantial parties in the matter. I was the plaintiff because litigation was necessary to resolve an unfortunate public-policy error that had significant ramifications for non-governmental elementary and secondary schools; since the three dioceses operate the most extensive systems of such schools in this state, as executive director of the dioceses’ jointly-operated public-policy office I was familiar with the situation, convenient and willing. Governor Exon was the defendant because, as the state’s chief executive, he performed an administrative function that ripened our case for adjudication.

While I had to go it alone, so to speak, Governor Exon had co-defendants: the Secretary of State and the Revisor of Statutes. All three had roles in what was, from our perspective, an injustice.

Mix-up from the Mixture

The matter evolved around the General Election of 1976 and the results of statewide voting on a proposal, originating with the Unicameral, to amend Article VII, Section 11 of the Nebraska Constitution. The proposed amendment was divided into two parts. Part 1 provided that state funds could go to private institutions for the benefit of handicapped children. Part 2 provided that state funds could be distributed to students attending private post-secondary educational institutions, pursuant to the condition that such aid be expressly limited to nonsectarian purposes.

The crux of the second part was to add the proposed new language to a pre-existing paragraph that included a provision authorizing and allowing the state to “pass through” Federal educational funds to private schools.

At that General Election, Nebraska voters approved Part 1, but rejected Part 2. It was a rather unanticipated result. Regrettably, the Revisor of Statutes interpreted it to mean that the entire paragraph to which Part 2 would have been added had to be eliminated from the Constitution. In other words, the pre-existing “pass-through” language was nixed by the thumbs-down vote on proposed new and additional language.

Acting upon that inexplicable and, in our view, irresponsible recommendation from the Revisor of Statutes, Governor Exon fulfilled his procedural duty to enter a proclamation declaring the wording of the pertinent section of the state constitution as amended. Bottom line: his proclamation omitted the pre-1976 “pass through” language.

From our perspective, a “friendly lawsuit” became necessary to correct the error and overturn the injustice. Our lead attorney was the late Robert B. Crosby, himself a former Nebraska Governor. He adeptly handled the matter, which is one reason among many why he will always be held in my high esteem.

Two Prongs—Two Cases

The litigation actually had two key elements. The Nebraska Supreme Court ultimately decided the issues of both elements, in separate rulings.

The first element was whether or not I had standing as a citizen, taxpayer and elector to bring such a suit, seeking declaration of the proper content of the Constitution. The District Court of Lancaster County ruled against us. We appealed to the Nebraska Supreme Court. The Supreme Court unanimously reversed the District Court and remanded the case. That was Cunningham v. Exon, 202 Neb. 563 (1979). We like to think of it as Cunningham v. Exon, I.

An interesting side note is that not too long after this decision was announced, the Chief Justice of the Nebraska Supreme Court, in a speech to media representatives, chided them for ignoring this ruling and missing its significance as a matter of law governing standing in Nebraska.

On remand, the District Court ruled in our favor, holding that the omitted language should be reinstated. The Attorney General appealed the ruling to the Nebraska Supreme Court. The Supreme Court once again ruled unanimously in our favor. The “pass through” language was saved. It has been in effect ever since. That was Cunningham v. Exon, 207 Neb. 513 (1980). We like to think of it as Cunningham v. Exon, II.

This case also has an interesting side note. Its oral arguments were presented during the first-ever occasion on which the Nebraska Supreme Court allowed cameras in the courtroom. Public television and radio were allowed to tape the session, which was held at Creighton University, on October 14, 1980. The decision in our case was rendered nine weeks later.

I’m proud to have my name linked with that of Jim Exon in this tiny part of Nebraska history. I was saddened by his death, and extend sincerest condolences, both personally and on behalf of the Nebraska Catholic Conference, to his family. He was an outstanding Nebraskan, whose public service and overall influence will always be part of where Nebraska has been and where it is going.

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Capitol Correspondent for 06/10/05

Overall the System Worked Once Again

In relative terms it would not be difficult to identify some results to criticize from the recently concluded 2005 session of the Nebraska Unicameral.

Undoubtedly some flawed legislation passed that shouldn’t have been passed; such as imposing governmental mandates that lack sufficient clarity and guidance. Likewise, no doubt, there was some legislation not passed that deserved to be passed, but there is always next year as a follow-up for this 99^th Nebraska Legislature.

On balance, most legislation experiences a fate pretty consistent with its merits and urgency. That’s the lawmaking system at work. It’s what the citizens collectively trust and it’s what we all entrust to our elected citizen-legislators. By no means is it system, but it’s time-tested and overall effective.

Rather than criticism or lament, this is the time—the immediate aftermath of a five-months’ long, arduous process—that those who serve in the Legislature and those who help it to operate deserve our salute and gratitude.

Most of the legislation enacted this year will take effect September 1, which is 90 days after the end of the session. Legislation that was passed with the “emergency clause” took effect as soon as the Governor signed it into law. Also, some bills have specifically designated effective dates, commonly January 1, 2006.

At the Nebraska Catholic Conference we will soon begin reviewing the result on each of the 230 or so legislative bills we monitored to one extent or another. We will prepare a comprehensive legislative report in time for the next meeting of the Diocesan Bishops and the NCC governing board.

Our review process is thorough and actually, pretty interesting. It also can be nerve wracking; you keep hoping you won’t find something negative that slipped by completely.

Praise for Significant Accomplishment

We were pleased that LB 28 was among the numerous bills passed during the last few days of the session. It establishes a modest state income tax credit for charitable contributions to Nebraska-based permanent endowments. The credit, which takes effect next January 1, will be applicable both to planned gifts for estate planning purposes and also to direct contributions by corporations.

Sen. Matt Connealy was the primary sponsor of LB 28 and adeptly guided it through the process. This was a significant accomplishment; the proposal faced some tough odds. The bill had the minimum, 5-3 support for advancing from the Revenue Committee and was opposed by the chairmen of both the Revenue and Education committees as well as Sen. Ernie Chambers. Ultimately, the bill passed on a 39-4-6 vote and approved by Governor Heineman.

Praiseworthy Action by those in Congress

Nebraskans should hail and be proud of the fact that all three members of the state’s delegation in the U.S. House of Representatives—Jeff Fortenberry, Lee Terry and Tom Osborne—voted against expanded federal funding for experimental research that destroys human embryos.

These elected officials deserve a note of praise and thanks (via e-mail or otherwise) for doing the right thing in the face of intense pressure from those who believe—and often believe sincerely—that this is a context in which utilitarian objectives should prevail over the sanctity of life and the end justifies the means.

Also, on another matter, we were pleased to learn that Coach Osborne is one of the original co-sponsors of H.R. 2717, the bipartisan Hunger Free Communities Act. We commend and thank him for stepping to the forefront of this legislation.

It is commonly estimated that more than 36 million people in the U.S., including 13 million children, live in households that struggle with hunger and food insecurity. Coach Osborne’s legislation expresses a Congressional commitment to cutting these numbers in half by 2010 and to eliminating hunger within the U.S. by 2015.

A study completed last summer found that 185,000 Nebraskans, including 76,000 children, daily suffer from food insecurity, defined by the USDA as “limited or uncertain availability of nutritionally adequate and safe foods or limited or uncertain ability to acquire acceptable foods in socially acceptable ways.” Just over three percent of the citizens of this state are food insecure with hunger, which means, “An uneasy or painful sensation caused by a lack of food.”

The Hunger Free Communities Act also calls on Congress to ensure adequate funding for, and to protect the entitlement nature of, food stamps and other nutrition programs. This is critical right now because the budget resolution recently passed by Congress calls for $3 billion in cuts to programs overseen by the Agriculture committees, which include food stamps and other nutrition endeavors. Some members of Congress have wrongly suggested that most, if not all the cuts can be squeezed from the food stamp program.

The other four members of Nebraska’s congressional delegation should now be encouraged to join Coach Osborne in co-sponsoring the Hunger Free Communities Act.

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Capitol Correspondent (5/27/05)

Marriage Amendment Merits Vigorous Appeal

On May 12, a federal district judge in Omaha ruled that Article I, Section 29 of the Nebraska Constitution violates the U.S. Constitution and is, therefore, null and void.

Judge Joseph F. Bataillon’s ruling, if it is not reversed on appeal to higher courts, will countermand action collectively taken by nearly 480,000 Nebraskans in November 2000, that is, 70 percent of the citizen voters at that General Election. These citizens overwhelmingly approved an amendment to the state constitution that was presented on the ballot because nearly 160,000 Nebraskans petitioned to have that happen.

Article I, Section 29 of the Nebraska Constitution states the following: “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.”

Last week’s ruling was no great surprise. Approximately six months ago, this judge wrote more than 10 pages in denying the State’s motion to dismiss the underlying lawsuit. That denial could have been communicated in a few paragraphs, but the judge saw fit to render a pretty clear indication of his thinking and the direction he was headed. His latest opinion added about 40 pages of rambling thoughts to that previous outline. The result is a far-reaching ruling that smacks more of an arrogant scolding and a political commentary than judicial scholarship.

Probably the most bizarre aspect of the ruling is its declaration that the subject provision in the Nebraska State Constitution constitutes a bill of attainder—inflicting punishment without judicial trial against easily ascertainable members of a group—in violation of Article I, Section 9 of the U.S. Constitution.

The District Court’s ruling that Section 29 of the Nebraska Constitution violates the U.S. Constitution does not mean that homosexual marriage has been legalized in Nebraska. It does not in and of itself change the status quo in that regard. However, if it withstands the scrutiny of appeal, then it will significantly enhance the likelihood that efforts will be launched to legislate a bundle of marriage-equivalent rights for homosexual relationships, perhaps even a redefinition of marriage. Moreover, it will leave Nebraska uncertain and vulnerable to court decisions, both state and federal, which might redefine marriage or perhaps mandate acceptance of same-gender “marriages” contracted in Massachusetts or civil unions contracted in Vermont or Connecticut.

Much will happen over the months and years ahead regarding this matter that intersects morality, law and public policy. The next step is the appeal to higher authority. That appeal, to be handled by the office of the State Attorney General, should be—deserves to be—vigorous, thorough, well-reasoned and well-presented, in order to best represent that upon which so many Nebraskans expressed their will.

Unicam’s Session Will Attain Finality

With just four working days remaining in its 2005 regular session, and with the package of budget bills having been finalized, there is little or no reason why this Nebraska Legislature won’t finish its current meeting as planned and anticipated. The 90^th and last legislative day is set for June 3.

For this first session of the 99^th Nebraska Legislature, finalizing a spending plan for the fiscal biennium that begins July 1 was the primary duty of the 49 citizen legislators. That duty was fulfilled by the passage of eight bills that constituted the budget package, and by having the final say on any line-item vetoes that might have been imposed by the Governor.

One line item of particular interest to the Nebraska Catholic Conference this year was the small, but important, appropriation that provides funding for the textbook loan program. Governed by statute, ruled to be constitutional in all respects, and now in its 16^th year of operation, this program allows children enrolled in state-approved, non-governmental elementary and secondary schools to borrow textbooks, which are purchased with the funds appropriated by this line item.

Four years ago, the amount was approximately $424,000 per fiscal year. As a result of budget cuts, the figure had dropped to approximately $351,000 for the current fiscal year. However, the Appropriations Committee, due primarily to leadership from Senators Pat Engel and John Synowiecki, recommended an increase to $420,000 for FY ‘06 and FY ’07.

The committee’s recommendation on this line item was minor in relation to the overall budget, but at one point attention and tension were drawn to the matter. Senator Ernie Chambers of Omaha proposed an amendment that would have stripped the textbook loan program of all funding. The amendment prompted a strong counter reaction from several senators, including Mike Friend, Mike Foley, Adrian Smith, and Pam Redfield, as well as Senators Engel and Synowiecki. The outcome was that Senator Chambers withdrew the amendment before a vote was taken.

Even at $420,000 the textbook loan appropriation is miniscule in comparison to not only the annual amount of state aid distributed to public school districts--$684 million--but even to the $65 million increase in such aid for the upcoming fiscal year. The appropriation amounts to approximately $10 per private-school student, compared with state aid of approximately $2400 per public school student.

The appropriation for the textbook loan program was also a matter of significant interest and importance for NCC’s affiliate organization, the Nebraska Federation of Catholic School Parents, which has more than 14,000 members statewide.

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Capitol Correspondent for 05/06/05

Medicaid Reform Plan Will Deserve Scrutiny

This Nebraska Legislature appears to be serious about securing better control over what some policy makers look upon as one of the "gorillas" that is possessive and domineering on the matter of state spending.

That "gorilla" is the fiscal impact of the state's medical assistance program, otherwise generally known and typically referred to as Medicaid, out of respect to its Federal origins. This is a health-insurance-type program that is jointly administered and jointly funded by the state and federal governments. It is a safety net of health care coverage for low-income people who meet prescribed eligibility requirements. It assists children and their parents, senior citizens and individuals with disabilities. More than 198,000 Nebraskans are covered in a typical month.

For the past 20 years state spending for the medical assistance program has averaged an increase of about 11 percent per year. Compare that with an average annual increase of slightly more than six percent for the overall state budget and it's understandable why some legislators are troubled by this spending and have a sincere desire to do something about the program's long-term sustainability.

Another interesting fact about the current program is that while low-income children and their parents constitute almost 77 percent of the recipients of benefits, they account for slightly less than 33 percent of the expenditures. On the other hand, low-income elderly and individuals with disabilities constitute 23 percent of recipients, but 67 percent of the expenditures. Nearly 22 percent of expenditures are for nursing home care; more than 16 percent for drug costs; and 13 percent for inpatient hospital costs.

This Legislature's response to this concern is embodied in LB 709, sponsored in chief by Senator Phil Erdman of Bayard. The bill is known as the "Medicaid Reform Act," because it sets the stage for "fundamental reform" of the medical assistance program. It's a cinch to pass, having already advanced past two stages of floor debate, both times by healthy margins.

As a matter of intent and purpose, LB 709 calls for the enactment of policies to accomplish certain objectives. For example, the original bill urged policy to "reduce the growth of Medicaid spending." When the Legislature's Health and Human Services Committee sent the bill to the full Legislature, that provision was amended to "control the growth of Medicaid spending." During the first round of floor debate, Sen. Chris Beutler won approval of an amendment to change that to "mitigate the growth of Medicaid spending." But on second-round debate, Sen. Erdman changed it again, to "moderate the growth of Medicaid spending." Whatever the term, the idea is clear: something needs to be done about the "gorilla."

Another of the policy formulations is stated this way: to "establish priorities and ensure flexibility in the allocation of medical assistance benefits." That's interesting, at least, if not a red flag from a social justice perspective, and perhaps an ethical dimension as well. The call to establish priorities in the allocation of benefits seems to be pointed down the path of rationing health care for the poor and most vulnerable. As a policy matter that would be much more substantive than just controlling spending growth.

The framework and process for Medicaid reform are also spelled out in LB 709. The responsibility for developing a reform plan will be assigned to two key people, one appointed by Governor Dave Heineman and the other appointed by Senator Jim Jensen, chairman of the Legislature's Health and Human Services Committee. The two plan developers will function under a mandate to maintain consultation with the Governor, the Legislature's committee, the Policy Cabinet that rules over Nebraska's Health and Human Services bureaucracy, and also the Centers for Medicare and Medicaid Services, which represents the federal side of the partnership. Since the federal government controls the general parameters of the program and pays a little more than half the cost, federal permission will be necessary for most components of the reform plan.

One of the concerns raised during floor debate on LB 709 was the obvious need and justification for public input. This concern is addressed by inclusion of a requirement that at least one public meeting will be conducted in each of the state's three congressional districts prior to submission of a plan to the Governor and the Legislature. In addition, monthly reports will be required available to the public. And, even more importantly, the bill establishes a 10-member, multi-category "Medicaid Reform Advisory Council," which will have specific authority to review the reform plan and to provide recommendations to the Governor and the Legislature.

Keeping the "gorilla" of Medicaid spending under control is a worthwhile objective, of course, perhaps even an obligation given the fiscal situation. But this is by no means a mere issue of too much eligibility or of assisting too many people. Issues relating to the costs of health are much more prevalent and complex than that. Unless carefully approached and crafted, the so-called reforms could detrimentally affect the lives and health of thousands of vulnerable Nebraskans.

Fortunately, concerns of this nature were expressed during floor debate on LB 709, most eloquently by Senators Beutler, Dennis Byars and Ernie Chambers. The legislative record they helped to create, as well as the prescribed opportunities for public input, should help to mitigate the harmful effects of cutting back on a program that assists those in need.

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Capitol Correspondent for 04/15/05

Catholic Teaching Important with Regard to Advance Directives

The sad case of Terri Schiavo, the seriously disabled Florida woman whose life and death became a gut-wrenching public event as her husband’s decision to stop providing her with food and water played itself out in the legal system, provoked weighty thoughts and stirred deeply felt emotions in many people throughout the world.

Here in this country especially, the scenario also served to increase attention and interest regarding the concept of advance medical directives.

This attention is overall a good thing. Advance directives are, in their own context, tools for much-needed communication. They are something to learn more about and to conscientiously consider. They are not, however, mere formalities that provide automatic solutions to human dilemmas; nor are they essential elements of human existence or experience. Decisions can be made, and often are made, without one. Moreover, they certainly don’t substitute for, and should not be considered in the absence of, education and discussion about broader topics of death and dying and the moral and ethical dimensions of medical treatment decision-making.

In Nebraska, statutory laws that have been in place since 1992 govern two types of advance medical directive. One type is an instruction directive for the most part. It is a written declaration, by means of which an adult of sound mind pre-authorizes the withholding or withdrawing of “life-sustaining treatment” in the event he or she, at some time in the future, is diagnosed as having a “terminal condition” or being in a “persistent vegetative state.” This type of advance directive is governed by the “Rights of the Terminally Ill Act,” sections 20-401 through 20-416 of the Nebraska statutes.

The declaration contemplated by this law is generally of this import: “If I should lapse into a persistent vegetative state or have an incurable or irreversible condition that, without the administration of life-sustaining treatment, will, in the opinion of my attending physician, cause my death within a relatively short time and I am no longer able to make decisions regarding my medical treatment, I direct my attending physician to withhold or withdraw life sustaining treatment that is not necessary for my comfort or to alleviate pain.”

Obviously, there are complexities in using this approach, this type of advance directive. In advance of actual circumstances, it transfers broad decision-making authority to the physician in charge at the future time. “In charge” is the right description, because the attending physician makes determinations about the triggering conditions, invokes the decision-making authority of the patient, and orders the withholding or withdrawal of life-sustaining treatment.

While perhaps not completely ignoring the principle of informed consent, the public-policy core of Nebraska’s “Rights of the Terminally Ill Act” is that health care providers are thereby immunized from liability for ending “life-sustaining treatment” whenever they determine that a declarant/patient is terminally ill or in a persistent vegetative state.

Unfortunately, far too much emphasis is placed upon the notion of a “living will.” It’s an overused term. It’s imprecise and can be misleading. Nevertheless, the instruction directive is what generally is thought of as a “living will.”

The other type of advance directive is an appointment directive. It also is a document executed while an adult is competent, appointing another person to make healthcare decisions should it occur in the future that the “principal” becomes incapable of making such decisions. Under Nebraska law, sections 30-3401 through 30-3432 of the statutes, it is identified as a “health care power of attorney” or, in a broader frame of reference, a durable power of attorney for health care.

In our view, the health care power of attorney is much to be preferred over a declaration under the “Rights of the Terminally Ill Act” and the typical “living will,” if there is such a thing.

Whereas a declaration or “living will” transfers future decision making authority to an attending physician, the health care power of attorney transfers such authority to a relative or other trusted individual, who is likely to be close at hand when a decision needs to be made, can participate in discussions with medical personnel and weigh the pros and cons of treatment decisions contemporaneously, in accordance with principles of informed consent and the patient’s pre-expressed wishes.

A health care power of attorney can have “living will” type elements, in that the “principal” may include, but does not have to include, specific guidance about any treatment or health care he or she wants to have or wants to avoid. With regard to withholding or withdrawing “life sustaining treatment,” such authority cannot be presumed; it must be explicitly granted by the “principal” to the “attorney in fact.”

Notwithstanding differences in the types of advance directives, the most important consideration for a conscientious Catholic is that his or her advance directive should reflect the Church’s teaching. To assist with this, the Nebraska Catholic Conference, acting on behalf of the Diocesan Bishops, not long after the relevant Nebraska statutes became law in 1992, issued a guidance document entitled “Medical-Treatment Decision Making: Moral Guidance and Considerations from Catholic Teaching.” Many copies of this document have been distributed over the years.

Now, as a result of the passage of time generally, and more specifically an allocution by Pope John Paul II on life-sustaining treatments and the vegetative state and subsequent interpretation and analysis of it, and also spurred on by the attention given to the Schiavo case and its aftermath, the NCC document is undergoing a thorough review. Some updating is likely, and perhaps other revisions as well. Once completed and approved by the Diocesan Bishops, the document will be distributed to parishes statewide and to individuals upon request.

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Capitol Correspondent for 04/01/05

Controversial Bills Worthy of Advancement

Although neither bill has been designated as priority legislation for the current Unicameral session and is therefore unlikely to be a subject of floor debate, LB 239 and LB 760 are worthy of being advanced to the full legislature by the standing committees that control them. Each proposes a change in public policy that is meritorious, albeit controversial.

The Nebraska Catholic Conference, the public policy office operated jointly by the three Nebraska dioceses, supports both of these bills. What each proposes is clearly more in line with Catholic social teaching than is current public policy.

LB 239 proposes to extend to undocumented immigrants who graduate from high schools in Nebraska eligibility to pay resident tuition rates at any of the institutions in the state’s university and state college systems. These immigrant students are almost always undocumented through no fault of their own, having been brought to this country as children by their parents, seeking a better life.

Conditions would govern this eligibility. Each such student would have to have resided with his or her parent or guardian while attending high school. He or she would have to have graduated from high school in Nebraska or received the GED equivalent diploma. He or she would have to have resided in Nebraska for at least three years before the date of graduation. And, each such student would have to provide the post-secondary institution with an affidavit pledging to file for permanent residency at the earliest opportunity that he or she becomes eligible to do so.

Obviously, this public policy would increase post-secondary educational opportunities. Resident tuition rates are meaningfully lower. At UNL, for example, the resident tuition rate for the current academic year is $143.75 per credit hour, as compared to $426.75 per credit hour for nonresidents.

Following are excerpts from the testimony presented on behalf of the Nebraska Catholic Conference in support of LB 239:

“…[O]ur perspective is that what LB 239 proposes is a matter of basic social justice.

“A successful student who has attended and graduated from a high school in our state and desires to go on to post-secondary education, but who is undocumented through no fault of his or her own, should have the same opportunities as any other Nebraska student….

“It’s not only social justice; it’s logical. It’s common sense.

“For undocumented students, this law would mean that they would have the same opportunity as their classmates to attend a post-secondary institution, in accordance with conditions that are just, thorough and reasonable, but without having to encounter the additional and unfair burden of paying the non-resident tuition rate.

“These students are not strangers among us; public policy should not treat them as strangers.”

LB 760 is this session’s version of legislation proposing to repeal authority for the death penalty and replace it with imprisonment for life without parole as the maximum penalty for first-degree murder.

Following are excerpts from the testimony presented on behalf of the Nebraska Catholic Conference at the public hearing on LB 760:

“Catholic teaching, as promulgated in the Modern Catechism, does not condemn the death penalty in principle. It is not regarded as intrinsically immoral. Public authority has a legitimate purpose in punishing criminals and the right and duty to defend human lives against aggression and to do what is necessary to protect public order and the safety of persons; this does not in principle exclude recourse to the death penalty. However, Catholic teaching incorporates an extremely important caveat on imposition of the death penalty, and that is, if non-lethal means are sufficient to defend and protect public order and safety, then public authority must limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the inherent dignity of the human person.

“In practical application, this teaching regarding the death penalty has become clearer in recent years. A new understanding has evolved. In his great and important encyclical “The Gospel of Life,” the Pope formulated a standard for application of this teaching, a public-policy test for the death penalty, if you will. That test is this: is the death penalty absolutely necessary…? In analyzing this question from a worldwide perspective, the Pope himself responds that the cases of absolute necessity are extremely rare if not practically nonexistent. If these cases are extremely rare on a worldwide scale, then certainly they could be presumed to be non-existent in the advanced society of the United States of America.

“The Nebraska Catholic Conference has analyzed and considered LB 760 within this framework. In the collective judgment of the Conference, the response to the test of whether the death penalty is absolutely necessary is unambiguously no, of course not. The death penalty fails this rational, reasonable test….What’s more, in our culture, which too frequently resorts to death and violence as a response to social problems, as evidenced by the killing of millions of innocent human beings through abortion, imposing the death penalty when it is unnecessary to do so diminishes all of us even more and contributes even more to the growing disrespect for the dignity and value of human life. The death penalty, having failed the test of absolute necessity, offers the tragic illusion that we can defend life by taking life.”

LB 239 and LB 760 are currently under the jurisdiction of the Legislature’s Education and Judiciary Committees respectively. As a matter of responsible lawmaking, it would be right and justified for these committees to advance these bills to the full Legislature. While they might not be debated this year, they would be in position for floor debate next year as carry-over legislation.

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Capitol Correspondent for 03/18/06

Second Half Will Focus on Priorities, Budget

The Nebraska Legislature has moved past the halfway point in its 2005 regular session. Something interesting about this is that the “inward half,” the “descending trek,” the “return leg of the journey” is going to be more difficult, challenging and stressful than what has happened in getting to the 45^th day of the 90-day session. There are major issues to be addressed and resolved, including the state budget.

In order to facilitate the remaining days in the session, the 49 legislators and the 15 standing committees, along with the Legislature’s Executive Board, had the opportunity to designate priority legislation. Many of the daily agendas from now to the end will be focused on these bills.

All of the enabled parties have identified priority bills in accordance with the deadline of March 11. The only exception is the Appropriations Committee, which did not designate priority measures. It doesn’t really need to do so, given the fact that the bills that make up the budget package are a priority in and of themselves. This Legislature is duty-bound to pass a spending plan for the upcoming fiscal biennium.

Following are summaries on a few of the priority bills that have the attention of the Nebraska Catholic Conference, the public policy office operated jointly and cooperatively by the three Nebraska dioceses.

            LB 57 proposes to establish three degrees of criminal assault for causing serious bodily injury to an unborn child. It is the priority bill of Sen. Mike Foley of Lincoln, and follows up on his own successful efforts in 2001/2002 enacting the Homicide of the Unborn Child Act as part of the Nebraska criminal code.

            As the supportive testimony of the Nebraska Catholic Conference pointed out during the public hearing on LB 57: “Nebraska law currently provides no legal recognition for prenatal human beings who sustain non-lethal injuries as a result of nonconsensual, violent acts of another, acts typically directed at the woman who carries the unborn child within her womb. Current public policy does recognize and protect unborn children as a matter of criminal law with respect to specifically defined conduct that results in death. This bill is an important, necessary and logical extension of that public policy, to include non-lethal injury.

            “Any concerns about the constitutionality of this legislation are unfounded. Protection of the unborn child outside the context of abortion is entirely permissible…”

            LB 57 has been advanced to the full Legislature by a majority of the members of the Judiciary Committee. Since it has priority designation, it stands a good chance of being debated and acted upon during this session.

LB 709 proposes to “provide for reform of the medical assistance program, also known as Medicaid, and a substantive recodification of statutes relating to such program.”

Medicaid is a jointly funded, federal-state program that pays the health care costs of low-income citizens. As of last December, more than 198,000 Nebraskans, predominantly senior citizens and children, benefited from this coverage. However, it carries a “big ticket” in the state’s budget.

Senator Phil Erdman of Bayard is the chief sponsor of LB 709. He designated it his priority bill. He has stated that he does not intend for this to be more study on the costs for medical assistance; he wants action.

Action in this context is all but guaranteed to mean reducing the number of eligible recipients. That’s a red-flag concern for advocates for low-income Nebraskans, because it signals reforms and cost savings at the expense of some of Nebraska’s most vulnerable citizens.

LB 709 has had its public hearing and remains under the jurisdiction of the Health and Human Services committee. Presumably, efforts are going on behind the scenes to give it greater clarity and purpose before it is sent to the full Legislature.

            LB 71, prioritized by Sen. Elaine Stuhr, proposes to re-enact the “Agricultural Opportunities and Value-Added Partnerships Act.” That codified public policy was first created in 2000, but had a “sunset” of January 1, 2004. LB 71 would start it up again.

            The objectives of the bill are to promote entrepreneurship in rural Nebraska and to encourage value-added businesses for farms and ranches and rural communities. It would prescribe a joint duty of the state departments of Agriculture and Economic Development to solicit applications and to award annual grants for eligible projects, such as cooperative formation, marketing research and market development, community initiatives, and recruitment, creation or retention of value-added businesses to rural areas.

            Funding for such grants will be a key issue for lawmakers. The level of funding is dependent upon a General Fund appropriation. It’s still too early in the process to ascertain what that level might be, but the bill itself has advanced toward enactment.

The Legislature’s Executive Board has seen to it that issues affecting the legislators themselves might be considered this session. It prioritized LR 12CA and LR14CA, both of which propose amendments to the Nebraska Constitution.

LR12CA would offer voters at the next General Election—November 2006—an amendment to Article III, section 7 of the Constitution, to increase legislator salaries from the current $12,000 per year to $24,000. This measure had a public hearing, at which there was no opposing testimony, and subsequently was advanced to the full Legislature. LR 14CA proposes to give the electorate an opportunity to repeal the term-limit provisions that apply to members of the Legislature. It too has had a public hearing, but remains under the jurisdiction of the Executive Board.

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Capitol Correspondent for 03/04/05

Short Session Within the Long Session

As a veteran observer of the Nebraska State Legislature pointed out the other day, all that remains of the 2005 meeting of the 49 legislators is a “short session.”

He was referring to the fact that each Nebraska Legislature convenes in two regular sessions: 90 legislative days in the odd-numbered year and 60 legislative days in the ensuing even-numbered year. Since he was making his point as this year’s 30^th legislative day was concluding, 60 days remaining is the equivalent of a “short session.”

“Short sessions” are typically pretty hectic, however, so a great deal of lawmaking is still to happen. Most of the 52 legislative days scheduled over March, April and May will be devoted to bills designated for priority by individual legislators and the standing committees. March 11 is the deadline for designation of both categories.

The budget process is also underway. This Legislature is responsible for developing the state’s spending plan for the two-year period beginning next July 1. The Governor’s budget—sort of a Johanns-Heineman combination—was introduced in January. The budget is several bills, but LB 425 is the “mainline” for operations and state aid.

The Legislature’s nine-member Appropriations Committee has already poured through the numbers at least once, subsequently issuing its own preliminary report. The process has now moved to the midst of an extensive schedule of hearings, in which state agency administrators and other interested parties appear before the committee to provide information, explanations and justifications and to seek favor, typically for additional funding. Subsequent to these hearings, and many hours of work, the committee will send its recommendation to the full Legislature for debate and amendment.

It is unrealistic to judge LB 425 as a whole. Rather, from the perspective of the Nebraska Catholic Conference, there are several specific issues that will be subjects of interest and advocacy as the process moves along.

Following is a sampling of other, more topical bills that have NCC attention.

LB 211 proposes to require that all cemetery owners, including churches, register information with the State Historical Society regarding ownership, location and description of each cemetery. There was a similar bill in the 2004 session that the Conference opposed, because it called for more particular information pertaining to individual burial sites and records. LB 211 is less intrusive and burdensome than its predecessor, enough so that the Conference is no longer an opponent. Apparently, the bill is motivated by a desire for better information about pioneer, historic and abandoned cemeteries.
LB 505 is another repeat bill. It proposes to lower the age of majority in Nebraska from 19 to 18 for just about every purpose described in law, one exception being matters relating to alcohol; the legal drinking age of 21, would be retained.

One purpose of the bill is to enable 18 year olds who are “on their own” to contract for rental housing and other commercial and quasi-commercial transactions.

NCC has not taken a position on this bill, but is monitoring it closely and has identified a context it hopes will receive more careful attention; namely, that it is not uncommon for 18 year olds to still be attending high school and living at home with their parent/s. Under current law, for example, age of majority terminates child support payment obligations, which would seem to be unreasonably harsh for any child who is still in high school and residing with the custodial parent.

LB 760 proposes to abolish the death penalty and replace it with imprisonment for life without possibility of parole as the punishment for first-degree murder. NCC has supported similar measures in the past and is supporting LB 760 in this Legislature.

While Catholic teaching does not regard capital punishment as intrinsically immoral, in this modern age and advanced society it clearly fails the rational test of absolute necessity for purposes of either protection or punishment.

LB 28 proposes to establish a Nebraska state income tax credit for certain contributions, namely, “planned gifts” and limited corporate donations directed toward permanent endowments of 501(c)(3) organizations. Not only would this encourage charitable giving as a matter of state policy, but also it would be even more significant in keeping investment dollars in this state. NCC supports LB 28, which has already advanced to the second stage of floor debate.
LB 75 is a vague, troubling measure. It proposes to give metropolitan, primary and first-class cities carte blanche authority to use special assessments and/or “special taxation” (undefined) to pay for “local improvements,” an undefined term, but apparently intended to be synonymous with “public improvements,” likewise undefined.

This bill seemingly presupposes some shift of municipal obligations from general property taxes to special assessments. Churches, schools, hospitals, nursing homes and governmental properties, which can qualify for exemption from “regular” property taxes, are subject to special assessments, so the bill’s impact is uncertain and of concern.

Six members of the Legislature’s Urban Affairs Committee voted to advance LB 75 to the full Legislature, with some amendments described as “procedural safeguards.” Senator Jeanne Combs of Friend is to be commended for being the only member of the committee to withhold support from this curious, open-ended bill.

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News Story, in place of regular column 2/18/05

Nebraska Bishops Issue Behavioral Health Statement

By James R. Cunningham, Executive Director-Nebraska Catholic Conference

Upholding and respecting the inherent dignity of those who suffer from mental illness and other behavioral health problems is the foundational theme of a pastoral statement jointly issued this week by Archbishop Elden Francis Curtiss of Omaha, Bishop Fabian W. Bruskewitz of Lincoln and Bishop William J. Dendinger of Grand Island.

The 2200-word statement, entitled “Affirming the Dignity of the Mentally Ill,” received final approval at a meeting of the Nebraska Catholic Conference on Jan. 26. The statement is a means by which the Bishops share their reflections and perspectives as teachers and pastors “in order to encourage those who are struggling with these burdens in any way and to educate the diverse Catholic community on the importance of looking upon our afflicted brothers and sisters with compassion and care.”

The statement was several months in preparation and was coordinated through the Catholic Conference. Prior to his retirement, and death soon thereafter, Bishop Lawrence J. McNamara of Grand Island also provided significant input and encouragement for the project.

Impetus for the pastoral statement came from three general sources. One was an address that Pope John Paul II delivered to an international conference on mental illness sponsored by the Holy See in 1996. In that address, the Pope emphasized everyone’s duty to make an active response towards those who are victims of mental illness, by carrying out a “particularly attentive attitude” and “relations of true Christian charity.” Another source of impetus was the extent to which Nebraskans are affected by behavioral health problems—more than 100,000 citizens of all ages and walks of life—and the third source was the opportunity created by the current situation in Nebraska, in and through which major reforms of the state’s behavioral health system are being implemented.

The focus of the Bishops’ concern is not limited to those who are diagnosed as mentally ill. It also extends to a broader understanding of behavioral health problems, namely, those who suffer from substance abuse disorders and other addiction problems.

The Bishops acknowledge, with regret, that behavioral health problems are often stereotyped and stigmatized. In response, they write: “Each of us, as individuals, citizens, relatives and neighbors, and certainly as believers in Christ’s message, should sincerely reflect upon our own attitudes towards those who are afflicted by any form of mental illness and/or substance abuse disorders or other addictions. Rather than contributing to any sense of shame and stigma, we can, instead, work to erase it. We can reach out in compassion to help those so afflicted overcome these barriers, which hinder them in seeking their own well-being.”

Regarding the ongoing process of reforming Nebraska’s behavioral health system, the Bishops express their gratitude, encouragement and best wishes to all those who are involved in these efforts. More specifically, the Bishops endorse and encourage the increased emphasis on community-based behavioral health services, an approach seeking to make it more possible for those in need to be served in their home communities. The Bishops point out that this approach is consistent with important themes of Catholic social teaching, “most notably subsidiarity and the call for solidarity.”

While acknowledging that additional challenges await the reform efforts, including troublesome funding issues and the need for sustained communication and cooperation, the Bishops emphasize that the shifts in policy and approach will create community-based opportunities. They encourage Catholic Nebraskans to respond, to put their faith into action as part of the anticipated social transformation:

“As new approaches are implemented, there will be opportunities to know more; to understand better; to overcome fears, discomforts and prejudices; to reject stereotypes; to reach out to those who are burdened by their illness rather than to ignore or demean them; to be a friend; to be a neighbor. Community-based services can have great success when those who constitute the communities respond, without fear or prejudice, in service and charity. We believe that Christian service, Christian charity and Christian witness must flow into these opportunities.”

The full text of “Affirming the Dignity of the Mentally Ill” is now available on the Nebraska Catholic Conference website: Mental Health . Copies also can be obtained by contacting the Conference office: 215 Centennial Mall South; Room 410; Lincoln, NE 68508; (402) 477-7517; nebrcc@alltel.net. A printed booklet version is being prepared and will be distributed to all parishes in the state, as well as to church organizations and interested individuals and groups.

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Capitol Correspondent for 02/04/05

Movement of Bills Will Turn to Priorities

Legislative bills have begun to move within the process that constitutes the current session of the Nebraska Unicameral Legislature. Bills are moving from the standing committees to the full Legislature for action “on the floor.” Some of the bills already at that juncture have begun to move on through the body-of-the-whole process, which includes the stages of General File, Select File and Final Reading.

As of February 4, the 21^st legislative day, no substantive bill had been voted upon for final passage, but it won’t be long until that happens; when it does, it will provide the new governor with his first opportunity to approve new laws.

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It didn’t take long for the newly elected Speaker of the Legislature, Sen. Kermit Brashear, to assert his authority and leadership style. In a three-page letter with a two-page memorandum attached, he recently informed his colleagues of a new system for the designation and scheduling of priority bills.

This is an important part of the process. There are many more bills than the Legislature reasonably has time to address, so it is necessary to have priorities.

Senator Brashear has generally retained the custom of three categories of priority bills: those designated by individual senators; those designated by the standing committees, typically two per committee; and a number of additional bills selected by the Speaker. In striving to “employ rational mechanisms and use of our collective processes,” this Speaker has modified the way in which the system will be administered.

For one thing, a category consisting of bills tabbed as first choice by the standing committees apparently will receive earliest consideration “on the floor.” Next will come the senator priority bills. The second-choice committee bills and the Speaker’s priorities will then fit in, as time is available.

Determining the order of consideration for Senator priority bills will be where the rubber meets the road under the new system. Before, considerable weight was given to the date a senator designated the bill as his/her priority. It became a “race” to the Speaker’s office on the first day open to priority designations. Not so anymore.

Apparently, the Speaker intends to exercise considerable authority and subjectivity regarding the order of senator priority bills. He has set forth a set of criteria for his decisions. The criteria include when the bill was advanced by committee, the extent to which both substantive and technical issues have been addressed by the committee, the level of opposition, the degree to which differences have been addressed “off the Floor”; and the public policy implications if the bill is not passed this year.

It will be interesting to observe the new process in operation.

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Two bills introduced by Sen. Dennis Byars of Beatrice present an interesting and curious dichotomy.

His LB 305 proposes to mandate that all educational institutions make all the buildings, campuses, grounds, recreational areas, athletic fields and all other real property they own or lease, as well as all their vehicles, tobacco free. Any use of any tobacco product on (or in) any of these properties would be unlawful under LB 305. “Educational institution” means every public and private school and learning program in this state, from preschools all the way through colleges and universities, although the latter are to be cut some slack, because their mostly adult clientele doesn’t need behavior modeling.

In other words, Senator Byars wants to dictate a sweeping no-tobacco-use policy for all educational institutions in the state, principally elementary and secondary schools, including those that are privately owned and governed, the majority of which are Catholic schools.

His LB 467 is entitled “Creating Essential Educational Opportunities for All Students Act (emphasis added). It proposes a variety of programs and initiatives to enhance elementary and secondary education in the state. One component proposes to reimburse teachers for their expenditures for tuition, fees and textbooks in conjunction with pursuing additional college credit. The quid pro quo for reimbursement is an agreement to continue teaching in Nebraska.

Another component proposes “The Beginning Teacher Mentoring and Induction Program,” which would use state lottery funds to pay for training and reimbursing mentors for beginning teachers. Another component would appropriate $10 million annually to the School Technology Fund to subsidize “strategic technology initiatives” to facilitate and promote distance learning.

And, one additional fact about Senator Byars’ LB 467: all three of the aforementioned components would apply only in the context of public schools. State-certificated teachers who take employment in state-approved or accredited private schools need not apply; they’re ineligible for professional development cost-reimbursement and for the mentoring program, notwithstanding the fact that the certification and endorsement requirements are the same for them as for their public school counterparts. Likewise, students attending state-approved and accredited private schools are excluded from technology assistance under the bill, notwithstanding that distance learning would be as beneficial to them as to their public-school counterparts.

Senator Byars’ curious dichotomy is obvious. On one hand, that of dictating school governance policies on the matter of tobacco use, he leaves no doubt that privately operated schools are to be dictated to just the same as government schools. Irrespective of the importance of preventing tobacco use and modeling sound behavior on the basis of health—a policy we happen to favor, by the way—the heavy hand is universal; it makes no distinctions. On the other side of the equation, however, that of helping state-certificated teachers employed by private schools, and, in a narrower context, the students in such schools, the senator leaves no doubt that these teachers and students are to be excluded and ignored. The uplifting hand is discriminatory; it makes distinctions.

The appropriate resolution for this conflict would be to balance the benefits fairly under LB 467.

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Capitol Correspondent for 01/21/05

Bills Quicken Legislature’s Activity

The first session of the 99^th Nebraska Legislature has had a relatively quiet, smooth beginning. After electing their leadership on the opening day, the 49 legislators settled into a typical early routine, one focused on tweaking the operating rules some and introducing new bills.

The leadership elections had no particular intensity or drama, except for that associated with the dislodging of the 10-year incumbent chairman of the Appropriations Committee, Senator Roger Wehrbein of Plattsmouth. He lost on a 27-22 vote to Senator Don Pederson of North Platte, the incumbent vice-chairman of the committee. Senator Pederson announced his desire to move up after Senator Wehrbein initially expressed interest in seeking to be elected Speaker. When he made a late change in favor or retaining his prior post, Senator Pederson was already a committed candidate, with more than enough support among his colleagues.

Although the circumstances were not all together the same, Senator Wehrbein’s loss brought to mind a scenario of quite a few years ago when the veteran chairman of the Legislature’s Revenue Committee, Senator Cal Carsten of Avoca, failed to win re-election by a vote or two, losing to an up-and-comer, Senator Vard Johnson of Omaha. We recall that it was a devastating, dispiriting loss for the highly respected Senator Carsten. It seemed to take him a full session, and perhaps even longer, to regain his assertiveness and passion for the process.

Everyone is different, so it probably won’t be that way for Senator Wehrbein, but now he also faces the reality of term limits ending his current service when this Legislature finishes in 2006. That has to be kind of a double whammy, yet no one should doubt that Senator Wehrbein will handle it with class and integrity.

All other leadership posts were filled with little or no surprise. In fact, the chairpersonships of 11 of the 14 standing committees were filled by unanimous acclamation of the legislators.

The only position still not formally decided after eight legislative days was that of President of the Legislature, which the State Constitution ceremonially assigns to the Lieutenant Governor. As the Legislature returned from the weekend and the Martin Luther King holiday, word was still pending—but not for long—from soon-to-be-Governor Dave Heineman as to his pick to fill that position.

As of the time of their three-day recess, legislators had introduced 546 bills and 22 proposals for constitutional amendments. There were still two days remaining in the official bill-introduction period, so the number will grow, most likely past 800 for bills.

Upon introduction, the Legislature’s Executive Board, acting as a referencing committee, assigns every bill to a standing committee. Except for a limited number of inconsequential, “clean-up” measures, every bill introduced in the Nebraska Legislature must be given a public hearing. The respective committee chairperson schedules the bills assigned to his or her committee.

This week marked the beginning of the public hearings, which take place at the State Capitol in Lincoln. A hundred bills were on the hearing schedule from Tuesday through Friday of this week. This exemplifies how the pace at the Legislature picks up steam rather quickly. Some of these bills have been in print, or have been available on-line, for barely a week.

Over the years, some have suggested that the process should be modified so that the Legislature would meet for a limited number of days each December, specifically for the purpose of introducing bills, and then return in January to launch the process. Now is the time in a session when that does not seem to be all that bad of an idea.

As mentioned here in the past, one factor affecting this Legislature is that 20 of the current senators face being term-limited as of 2006. The reality of term limits is no doubt on the minds of most legislators. It’s also on the minds of legislative staff and lobbyists as well. That’s to be expected. It’s human nature.

Already, as of the first eight days of this 2005 session, four resolutions proposing constitutional amendments on the subject of term limits had been introduced in the Legislature. All seek a vote of the citizens at the general election in November 2006. LR 3CA proposes to terminate the term limit provisions on January 1, 2010. LR 5CA proposes to repeal the provisions and replace them with provisions for recalling state legislators. LR 14CA proposes outright repeal of the term limit provisions. And, LR16CA proposes to expand the current limit of two consecutive terms to three consecutive year terms for terms beginning after January 1, 2001.

Along with numerous other subjects, those proposed constitutional amendments will be interesting to monitor.

We look forward to using this space in the weeks ahead to analyze and comment upon a variety of bills pending before the Legislature. Right now, the important priority is to try and figure out what all is being proposed.

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Capitol Correspondent for 01/07/05

New Legislature Has Unique Beginning

At the General Election in November last past, Nebraska voters rejected the idea of amending the State Constitution to remove the Lieutenant Governor as the official presiding officer of the State Legislature. Hardly, if at all, did anyone realize at the time that the voters’ decision would add a unique twist to the Ninety-Ninth Nebraska Legislature, which began its journey into history earlier this week.

The Lieutenant Governor, in these early days of 2005, is, for all intents and purposes, a lame duck. He’s Dave Heineman and he’s soon to be Governor. That’s because it’s all but confirmed that Governor Mike Johanns is going to be the new U.S. Secretary of Agriculture. When a Governor leaves his/her post ahead of schedule, the Lieutenant Governor moves into that post, and then appoints his/her successor.

Adding an even more unique twist and historical significance to the opening of this particular Legislature was the expectation that the real Lieutenant Governor, soon-to-be real Governor, would actually be the acting Governor on opening day at the Unicameral. This would be due to the fact that the real Governor, soon-to-be Secretary of Agriculture, would be out of the state, in Washington, D.C., attending to the process of confirmation of his new post. Since the Lieutenant Governor would be acting Governor and therefore unable to preside over the opening of the new Legislature, that honor and responsibility shifted to the legislator with most seniority, Senator Ernie Chambers of Omaha, now in his 35^th year as a lawmaker.

It’s a unique set of circumstances, with some interesting and historically meaningful story lines, but even more significant for this Legislature was its own, internal reorganization. There is new leadership in 2005, most notably a new Speaker of the Legislature. As this column was being prepared a couple of days before opening day, it appeared all but a done deal that Senator Kermit Brashear of Omaha would ascend to that prominent position.

With Senator Brashear moving up, the committee he has chaired, Judiciary, was expected to be placed under the leadership of Senator Pat Bourne of Omaha. Other committees without incumbent chairpersons were Banking, Commerce and Insurance; Business and Labor; and Urban Affairs. The chairpersons of the nine other standing committees were expected to seek and retain their leadership roles. Of the nine, Senator Roger Wehrbein, chairman of the powerful Appropriations Committee for the last 10 years, appeared to face the stiffest challenge, from Senator Don Pederson of North Platte. That race developed when Senator Wehrbein reversed course and withdrew his previously announced intention to challenge Senator Brashear for Speaker.

This Legislature—Nebraska is the only Unicameral in the nation, don’t forget—has 41 returning legislators and eight first-time members. Those new legislators are: LaVon Heidemann, District 1 (Elk Creek); Gail Kopplin, District 3 (Gretna); Gwen Howard, District 9 (Omaha); Mike Flood, District 19 (Norfolk); Chris Langemeier, District 23 (Schuyler); Rich Pahls, District 31 (Omaha); Debra Fischer, District 43 (Valentine); and Abbie Cornett, District 45 (Bellevue).

This Legislature will consist of two sessions. The 2005 session is scheduled for 90 working days, adjourning around the first of June, to be followed in 2006 by a second session of 60 working days.

As the 99th Legislature writes its chapter of Nebraska history, affecting more than 1.6 million citizens, we will continue our practice—already 28 years old and counting—of using this column in the diocesan newspapers to provide information and commentary on legislative bills and other relevant public-policy matters. In addition, information about the Nebraska Catholic Conference’s positions and perspectives on legislation will be available here.

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

On behalf of the members and staff of the 99^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 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.

“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, not 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 all people. Amen.”

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