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Capitol Correspondent - NCC Column 2006

Diocesan Newspaper columns by James R. Cunningham

Most Recent:

It's Over, But for the Post-Election Musings (11/17/06)

Thoughts on the Proposed Constitutional Amendments (11/03/06)

Measuring the Ballot's Policy Issues (10/06/06)

Time to Become Responsibly Informed (09/22/06)

“Net Neutrality” In Need of Protection (08/11/06)

Nebraska’s Marriage Amendment Restored (7/28/06)

Amazing, Remarkable Process Regulary Ongoing (7/7/06)

Complexity of Immigration Issues Challenges Many (6/30/06)

Persevering Through the Process (6/9/06)

Maybe It Was the Way Last Season Ended (5/19/06)

Right of Privacy a Wolf in Sheep's Clothing (3/24/06)

Full Day Sessions Cause More Action (3/17/06)

Time for Priority Bills to Claim Attention (2/17/06)

LB 944 Would Repeal Bad Policy (2/3/06)

Public Hearings on Legislative Bills Present Opportunities (1/20/06)

Legislature Gets Under Way for 2nd Session of 99th Legislature (1/6/06)

Capitol Correspondent (11/17/06)

It’s Over, But for Post-Election Musings

Quick, post-election quiz: in the balloting that took place just a matter of days ago, who was the Democratic candidate for Nebraska Lieutenant Governor? In other words, who was David Hahn’s running mate in challenging the incumbent Heineman-Sheehy ticket? The name was on your ballot. Answer provided at the end.

Hey, it’s over; election season is de finis. It’s now the aftermath. Decisions have been rendered. Irrespective of the results, there’s a collective exhale of relief. The process, despite all that bugs us about it as it’s unfolding, worked once again. We must continue to cherish that process.

The many of us who don’t present ourselves as candidates for public office owe a debt of gratitude to those who do. These Nebraskans, and their family members as well, expend remarkable amounts of time, energy and resources—especially the higher up they are in the political order—in seeking to represent and serve their fellow citizens. Sure there’s ego involved, and prominence at stake, but it always involves more, because victory means a whole lot of responsibility, and exercising judgment, and taking criticism, and dealing with a lot of folks who aren’t happy about one thing or another or who want something done right away.

Some additional musings—that’s all we have left—about the election just past.

Did I read that correctly? The candidate who spent something like $12 million of personal wealth in a failed attempt to oust an incumbent United States Senator, described the overall experience as “fun”?!

That gives “fun” a truly unique meaning. Personally, I’m inclined to think of fun as playing a round of golf, against someone I can usually beat, for 10 cents a hole.

Ah, the Nebraska Legislature; what a truly unique situation this is going to be in just a matter of weeks. The 100^th Nebraska Legislature will have only 27 members coming back from 2006, out of a Unicameral body of just 49 total. Yikes. There will 20 rookies and two re-started legislative careers in the class of 2007. All but two of the changes result from the first-time impact of term limits.

One of the legislators who won’t be coming back is Senator Mike Foley of Lincoln. He is at the midway point in his second legislative term, but voters boosted him to a decisive victory over incumbent State Auditor Kate Witek. Sen Foley exhibited class in maintaining focus on the goal despite some odd circumstances. Obviously, the “power of incumbency” was far less than enough to legitimize Witek’s political maneuvers; credit to the voters.

The so-called “Stop over Spending” ballot question, Initiative 423, proposing to place in the Constitution a limit on state spending increases, struck out like a batter with feeble swings against heavy heat. The idea received plenty of publicity, however.

Voters produced a rather interesting dichotomy on matters relating to gambling. On one hand they decisively voted down yet another attempt to expand legalized gambling; this time it was video keno, as proposed by Initiative 421. On the other hand, however, they also decisively rejected a proposal to use more state lottery proceeds to help citizens who battle gambling addiction. Apparently, gambling and “no” are synonymous, no matter what the context.

In the context of ballot questions, how might the dynamic of this election been different had the so-called “Humane Care Amendment” qualified for the ballot? Probably no impact on ultimate outcomes, but it would have taken some attention, and maybe some money, away from other issues, perhaps IM-423 in particular.

Nominee for most lamentable headline in the days leading up to the election: “Those who care about education will vote to retain schools law”; appearing over a Local View column by Senator Ron Raikes, chairman of the Legislature’s Education Committee, in the November 4 issue of the Lincoln Journal Star. That headline is nonsense, an extreme generalization implying that nearly 286,000 Nebraskans, those who voted to repeal LB 126, don’t care about education. Moreover, by my reading, the headline did not accurately capture the true context of what Senator Raikes opined.

Did you notice? First District U.S. Representative Jeff Fortenberry, a first time incumbent, won re-election by a wider margin than did Rep. Lee Terry, a fourth time incumbent in the Second District. And, by most assessments, Rep. Fortenberry’s opponent was more well-known, and certainly more politically experienced than Rep. Terry’s opponent. Both incumbents had comfortable margins, 59%-41% and 55%-45% respectively, but the numbers are interesting in relation to conventional wisdom that typically makes make first-time incumbents most vulnerable.

In the final analysis, where was that tight race for the Third District seat in the House of Representatives? Smith 55%, Kleeb 45%.

The hustle award for combined crafty and opportunistic campaign advertising should go to incumbent University of Nebraska Regent, Jim McClurg. His spots on the radio network that broadcasts University of Nebraska football games were adroitly placed. The messages dominated breaks during the game on the Saturday before the election. Even more, the closing line each time was something like this: this ad paid for by the McClurg for Regent Committee, Adrian Fiala treasurer. You don’t hear that form of attribution much anymore; it has given way to “I’m such-and-such candidate and I approved this message.” Here, though, the old form probably had a purpose. Presumably, that’s the same Adrian Fiala who was doing commentary on the football broadcast. Back to Adrian for more Husker action; nice.

David Hahn’s running mate? It was Steve Loschen. Sorry, no prizes available for right answers.

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Capitol Correspondent for 11/03/06

Thoughts on the Proposed Constitutional Amendments

The Nebraska Catholic Conference’s survey of candidates for the General Election was published in the October 20 issue of this diocesan newspaper. Take advantage of it in order to become better informed about how the candidates stand on numerous issues. A multi-issue questionnaire was submitted to all candidates for the U. S. Senate and House of Representatives, Governor and the Nebraska State Legislature. The information is also available at the Conference’s website: www.nebcathcon.org.

This is also a last opportunity to examine the state-level policy issues that are on this year’s ballot. As our early October column pointed out, there are nine such propositions, consisting of two initiative measures, one referendum and six amendments to the State Constitution proposed by the Legislature.

Previously we presented the initiative measures and the referendum as our subject matter; this time it’s the six amendments. The Nebraska Catholic Conference, which represents the mutual interests and concerns of the three Diocesan Bishops, has not taken a position for or against any of these propositions.

Amendment 1 proposes to authorize the Legislature to allow counties, cities and villages to issue tax-exempt revenue bonds for the purpose of financing real or personal property specifically for use by “nonprofit enterprises.” The purpose is to assist nonprofit organizations by means of the lower interest rate of these government bonds.

This would expand the constitutionally-based bond power of local government. Is this an appropriate use of such power? That’s the question. It was presented another, previous time and Nebraska’s voters rejected it.

The proposed amendment also includes some over-stated language intended to ensure that “non-profit” means nothing other than secular or non-sectarian; as if bond counsel aren’t proficient and tough enough as gatekeepers on this concern.

Amendment 2 proposes to authorize the Legislature to give cities and other political subdivisions greater flexibility in investing their public endowment funds. This amendment would allow for diversified-portfolios, in accord with the principle of a prudent investor acting in a fiduciary capacity. Current limitations are longstanding and this proposed amendment seems to be a reasonable updating of the authority to invest.

Amendment 3 proposes to increase from $500,000 to $1,000,000 the base amount of state lottery proceeds initially allocated each year to the Compulsive Gamblers Assistance Fund. This comes in line after the payment of prizes and operating expenses, but before transfers for purposes of education and environment. In addition, current law also earmarks one percent of the net proceeds for the Assistance Fund.

Because state government (lamentably) plays such a significant role in facilitating and (insufferably) promoting gambling, the case is strong that it ought to provide more for helping those who battle the addiction.

Amendment 4 proposes to modify the separation-of-powers provision so that the Legislature can enable the probation and parole systems to work together more cohesively and efficiently. Currently, parole employees are part of the executive branch of state government, i.e., the Department of Correctional Services. Probation employees are part of the judicial branch, i.e., the state court system. Amendment 4 would lower the barrier that otherwise dictates separation of powers between the branches of government.

Greater coordination between probation and parole is consistent with Nebraska’s increased emphasis on community-based corrections.

Amendment 5 proposes to enable the funding mechanism for the State’s commitment to an “early childhood education endowment fund.” By virtue of LB 1256, enacted last April, state government is obligated to provide $40 million for this endowment fund, contingent upon realization of a second component, which is the irrevocable commitment of income from $20 million of private funds.

Amendment 5 would authorize use of “perpetual school funds” for the State’s part in this deal. These are trust funds, established in the State Constitution and historically generated, for the most part, from the sale or lease of public lands. Their use is now restricted to “common school purposes;” Amendment 5 would expand this to also include “early childhood educational purposes,” to be defined in the Constitution as “programs operated by or distributed through the common schools promoting development and learning for children from birth to kindergarten-entrance age.”

Pursuant to LB 1256, income from this two-pronged, $60-million Early Childhood Education Endowment Fund would be distributed by a newly created Early Childhood Endowment Board of Trustees “exclusively to provide funds for the Early Childhood Education Grant Program for at-risk children from birth to age three.”

The apparent purpose of this plan is to fund and promote “early childhood education” for babies, infants and toddlers living under conditions that otherwise restrain or put at risk their development and chances to succeed as they grow older.

The funding mechanism, which is what the amendment is about, seems legitimate, (although it does lock in a predominant role for government-sponsored education for pre-kindergarten children). What’s more, evidence cited by proponents of this seems substantial and convincing that the earliest of intervention with at-risk children improves their chances to succeed in school and in life. That’s a pretty compelling reason to support this. Still, there’s a nagging thought that this overall plan, complex as it is and significantly dependent upon private financial involvement, may be vulnerable to an elitist values agenda that would tilt more toward social engineering than education.

This proposed amendment requires careful thought and prayerful consideration.

Amendment 6 is multi-faceted. It proposes to eliminate the current requirement that property has to be substandard and blighted in order to be eligible for public debt and tax increment financing (TIF). In addition, it would expand the context of what can qualify for this financing to include “development” as well as rehabilitation and redevelopment. It also would authorize counties to use this mechanism, as well as cities. And, it would give the Legislature some additional authority in this context.

The relevant question seems to be whether or not there is sufficient need and justification for expanding this governmental financing tool.

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Capitol Correspondent for 10/06/06

Measuring the Ballot’s Policy Issues

When voters across Nebraska go to the polls on General Election day, Nov. 7, they won’t be asked, nor have the opportunity, only to decide who will represent them in public offices. There are some intriguing and important policy issues as well.

For example, unless something extraordinary happens in a legal context between now and November, there will be nine state-level policy issues on the statewide ballot, consisting of two initiative measures, a referendum and six amendments to the State Constitution proposed by the Nebraska Legislature. The initiatives and the referendum are the result of successful petition drives.

Following is some information and commentary on the three items that qualified by petition. We hope to review the six constitutional amendments in a future column. By the way, the Nebraska Catholic Conference, officially representing the mutual interests and concerns of the three dioceses in the state, has not taken a position for or against any of the nine propositions; this does not preclude any Diocesan Bishop or diocesan agency from making individual pronouncements.

Initiative Measure 421 represents the idea for expanded gambling that has survived judicial scrutiny. It proposes to amend state law—statutes, not the constitution—to add video gambling devices to the existing paper-ticket “keno” games already authorized under the Nebraska County and City Lottery Act.

Proponents of I-421 contend that these video gambling devices, officially identified in the proposed statutory amendment as “video player stations,” will modernize and improve keno and result in more non-tax revenue for community betterment purposes. Opponents say this is just like slot machines, which are otherwise prohibited under the constitution. There would be no limit on the number of video player stations at any location. Also, while current law requires a five-minute wait between games for paper-ticket keno, video keno could be instantaneous, one game right after another.

Personally, I’m leaning toward voting against I-421, because there is already too much governmental sponsorship of gambling and because this form is highly addictive.

Referendum Measure 422 proposes to repeal LB 126, which the Legislature enacted into law over the Governor’s veto in 2005. This legislation dissolved all Class I school districts and repealed the statutes dealing with their formation. It also prevented the closing of elementary attendance centers under certain circumstances, required certain student transportation and provided additional state aid for transition and improvement.

LB 126 has already taken effect—Class I districts have been dissolved—so even if this referendum is approved by voters it won’t restore these districts as if the legislation was never enacted. Presumably they could be established once again, pursuant to the standards and processes that would come back into existence.

So, what’s at stake with RM-422? Restoration of a distinguished element of local control; that and the potential for some rehashed debate in the Legislature, which will have at least 21 new members.

Personally, I don’t have a strong leaning one way or the other on RM-422. On one hand I understand the will of the legislative majority regarding educational and tax equity and governmental efficiencies. On the other hand I appreciate the importance of local control and parental choice in education. This might be a last-second decision.

Initiative Measure 423 most likely will command center-stage attention among this trio of public-policy issues/decisions. It’s the one of the three that proposes to amend the Nebraska Constitution. It would do so in the form of new language subjecting the Legislature to a state spending limit. That limit would be the greater of the previous year’s state spending limit compared to the total amount appropriated in the preceding fiscal year increased by a percentage determined by adding the inflation rate, per the consumer price index, and the percentage change in state population for the corresponding calendar year.

Other provisions of this proposed constitutional amendment would permit the Legislature to exceed the spending limit by voter authorization and to make “emergency” appropriations. In addition, funds from certain sources, e.g., fees and user charges, would be specifically excluded from spending limit. And, individual taxpayers would have constitutionally based standing to enforce the amendment’s provisions.

Proponents of Initiative 423 hasten to point out that it does not cut state funding; rather, it limits the growth of state-government spending to a healthy rate. They say this will encourage greater efficiency before raising taxes is considered, and that over time it will reduce the tax burden on individual Nebraskans.

Opponents counter that I-423 would lock an inflexible and impractical formula into the state constitution and ultimately cause reductions in many vital public services, including public safety, education and other assistance for children, and healthcare. They point out that there is precedent for such a lid, citing Colorado—the so-called “Taxpayer Bill of Rights (TABOR)” adopted in 1992—where the effects were devastating, leading to a suspension of the measure by voters last year. There is more-than-a-little potential for lawsuits. And, opponents say, the lid’s impact on state aid to local government will shift costs, resulting in property tax increases.

Personally, I am leaning toward voting against I-423, because of concern about its impact on important human needs programs and because I generally trust the legislative process to make well-informed, sound fiscal decisions.

If you are not registered to vote, don’t forget or fail to do so. Mail-in (i.e., postmarked) or agent-delivered voter registrations are due on or before October 20. In person registration, at the county clerk or election commissioner’s office, has to happen prior to 6 p.m. on October 27. Even if you have been registered, regardless of whether you have voted or not, you must re-register for this General Election if you have changed your name or address.

Also, you can vote early if you would like, without giving any reason. This was formerly known as absentee voting. You can apply now for early voting, and you can still apply up to 4 p.m. on November 1. All such ballots must be at the election office by the closing of the polls on Election Day.

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Capitol Correspondent for 09/22/06

Time to Become Responsibly Informed

As the 2006 General Election draws closer—it will take place November 7—and the campaign season moves into full swing (along with the football season of course), now is the time to take seriously the obligation of our faith and citizenship to be well informed voters. It is time to be learning more about the issues, especially those issues that have significant moral dimensions, and about the positions taken by candidates on these issues. It is a critical time to be paying attention to what is written and said, not just of superficial, media glitzy campaign propaganda, but deeper than that: above, below and in between the lines of communication.

From a Catholic perspective this is a matter of both informing and thereupon forming our consciences, not merely on the basis of raw information, but on the basis of fundamental moral principles as well. This responsible, mature attitude and approach lie at the heart of fulfilling the Church’s instruction that we act as faithful citizens.

Recently, the four Catholic Bishops serving in our neighboring state of Kansas issued “Moral Principles for Catholic Voters” as an educational guide for Catholics in preparing to vote. In it, the Bishops describe voting as “the most basic obligation of citizenship.”

Voting is not just a routine matter of doing it; it is an important matter of doing it in the right, responsible manner, not with respect to any particular candidate or political party or political action committee, but by following one’s properly formed conscience. This approach doesn’t necessarily resolve voting dilemmas, in fact it might create or expand them, but it enables us to act faithfully and responsibly.

This election season is also the time when the Nebraska Catholic Conference is involved in its voter-education effort for the benefit of Catholic Nebraskans. The primary tool in this effort is our traditional, time-tested candidate questionnaire. Formulating and disseminating questions and collecting and publishing responses from candidates for public office in the Cornhusker State, has been a consistent, every-other-year project for the Bishops’ jointly operated public-policy agency since the General Election in 1974. There are more questions now than there used to be, but the issues are of a broader range and more complex.

The Nebraska Catholic Conference questionnaires are now in circulation among all candidates listed by the Secretary of State for these offices: U.S. Senate, U.S. House of Representatives—three districts, Governor and Nebraska State Legislature—24 districts.

The state questionnaire asks 18 questions of all candidates for Governor and the Unicameral, consisting of at least one question from each of the following categories: abortion, agriculture/rural life, cloning, criminal justice/corrections, death penalty, education, embryo research, euthanasia/assisted suicide, health care, immigrant policy, marriage/family life, minimum wage, tax policy, welfare policy and personal priorities.

The federal questionnaire poses 19 questions to all candidates for the U.S. Senate and the U.S. House of Representatives, consisting of at least one question from each of these categories: abortion, agriculture/rural development, arms control/disarmament, cloning, death penalty, economic assistance for families, education, embryo research, foreign policy, health care, hunger, immigration reform, marriage, minimum wage, religious liberty and personal priorities.

The Nebraska Catholic Conference does not endorse candidates for public office. Care is taken to ensure that all candidates have the same, fair and equitable opportunity to respond to the questionnaire. Periodic reminders are being sent.

Some questions allow for “Support” or “Oppose” answers, but every question accommodates comments by the candidate. Comments are subject to a maximum-words limit, but within the limit there is minimal (e.g., grammar or spelling) if any editing. NCC will not identify any answer as “right” or “wrong”; the questionnaires are information tools, not a list of specifications.

Some candidates will opt not to respond to the Nebraska Catholic Conference questionnaire, which is lamentable in our view, and unjustified if not irresponsible; but for those candidates who do respond, their responses are to be published in the upcoming, October 20 editions of the three diocesan newspapers. The responses also will be published electronically, as of the same date, on the Nebraska Catholic Conference website: www.nebcathcon.org.

This year’s election promises to be a defining one. Every state-level office is up for election, with some being considerably more interesting than others. One of the three U.S. House of Representatives districts, the Third, has no incumbent and another, the Second, has a first-time incumbent. There is a high-stakes U.S. Senate race and a Governor’s race that has a short-term incumbent.

Matters may be even more compelling with respect to the Nebraska Legislature. Consider this: of the 24 races, 21 have no incumbent legislator on the ballot (although in two situations one of the candidates did serve in the body during a past time.) All but one of these situations is the result of term limits.

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Capitol Correspondent for 08/11/06

“Net Neutrality” In Need of Protection

Every now and again something lands on the desk, or pops up in an e-mail; with a subject that is not immediately recognizable, if not downright puzzling. For example, not long ago an e-mail popped up from a known source urging our attention to the issue of “net neutrality.”

To say the least, from our perspective it was not obvious what this message was about. “Net neutrality”? What’s that?

Let’s see; the professional tennis circuit is between the Wimbledon Championship and the U.S. Open Championship and those accomplished players are amazingly neutral about the net; they strive to keep it out of play. And, judging from the overall paucity of scoring, the nets were treated pretty neutrally during the recent World Cup Soccer Championship. Fish probably are at least neutral about nets.

We digested this message further and learned that it relates to a subject of no small significance.

“Net neutrality” is being used in a public policy context to describe and advocate for protection for an open Internet, specifically, according to the Department of Communications of the U.S. Conference of Catholic Bishops, “requirements that companies which control the infrastructure connecting people to the Internet not interfere with the content distributed on the Internet.” The USCCB is among those urging that “net neutrality requirements” be included in Federal legislation.

For decades there was a regulatory regime that fostered the unique openness of the Internet. But the Federal Communications Commission has terminated most of that, thereby stripping a lot of what keeps companies in the industry, i.e., providers of Internet access, from interfering with the content of what is distributed via this unique medium. Without protections for “net neutrality,” the companies can control access and thereby control content in accord with their own interests, financial of course, perhaps philosophical and social interests as well.

The USCCB’s foremost concern is that failure to provide “net neutrality” protections threatens noncommercial religious speech on the Internet.

Bishop Gerald Kicanas, Chairman of the USCCB’ Communications Committee, stated the concern and the issue quite directly and concisely in a recent letter to members of the U.S. Senate, urging them to enact “net neutrality” requirements:

“If the Internet becomes, as it inevitably will without strong protections for net neutrality, a medium where speakers must pay to deliver their messages, religious speech will be effectively barred from the Internet.”

Broader Significance

We welcome and salute the news of several weeks ago that St. Francis Medical Center in Grand Island decided to discontinue listing a certain public health clinic in the community social services directory that the Center sponsors. This praiseworthy decision was prompted by the clinic’s connection to reproductive health services that conflict with Catholic principles.

Perhaps the most compelling aspect of news reports on this matter was that acknowledgment of the clinic’s involvement with abortion information was documented by way of attribution to the clinic’s executive director. This has significance beyond just this particular situation in Grand Island.

This public acknowledgment further exposes the connection that has existed for quite a number of years now between the Nebraska Reproductive Health Care Program and abortion information via the angle of funding under Federal Title X. This is a connection that Pro Life lawmakers and advocates have been striving to minimize.

Legitimate concerns have stemmed from the fact that when the Legislature decided more than a decade ago to appropriate state funds for reimbursements for certain reproductive health services, such as cancer screenings, pap smears and testing and treatment for sexually transmitted diseases, but specifically excluding abortion, abortion counseling and abortion referrals, not long thereafter a bureaucratic decision was made to channel this funding exclusively through clinics that also receive Federal Title X family-planning funds. In other words, these state dollars have only been reimbursed to health clinics—such as the one in Grand Island—that are controlled by Title X standards, which require, at the very least, non-directive counseling on abortion.

One barrier to ending this exclusive arrangement has been that not enough lawmakers understand the link to abortion.

A revised process seeking a wider range of providers for these state-reimbursable reproductive health services is being pursued by the current administration. Hopefully it will be brought to fruition and thereupon function as more appropriate public policy.

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Capitol Correspondent for 07/28/06

Nebraska’s Marriage Amendment Restored

“We hold that §29 and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.”

With these words near the end of a tightly-reasoned, concisely-articulated 15-page opinion, a three-judge panel of the United States Court of Appeals for the Eighth Circuit reinstated Nebraska’s constitutional amendment that reserves the institution of marriage to opposite-sex couples. In upholding the substantive constitutionality of Article I, Section 29 in its entirety, the appellate panel unanimously and decisively reversed U.S. District Court Judge Joseph F. Bataillon’s prior invalidation of the constitutional amendment, which came into existence in 2000 as a result of a citizen’s initiative petition and 70 percent approval by the Nebraska electorate.

Announced July 14, the ruling and opinion by the Eighth Circuit panel constitute a complete and total vindication of the State’s position and the efforts of all Nebraskans who were motivated to preserve the institution of traditional marriage. The appeal was superbly developed and presented by the office of the State Attorney General.

District Judge Bataillon relied upon what was generally a three-pronged approach in his attempt to judicially repeal the constitutional amendment. The Circuit Court panel unanimously found error with all three prongs. The opinion was authored by the Circuit’s Chief Judge, James B. Loken.

The first prong was said to be violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Not so, ruled the appellate judges. They found that Judge Bataillon used the wrong standard of review. Attempting to model the U.S. Supreme Court’s 1996 decision in the Colorado case of Romer v. Evans, he applied a heightened standard, requiring the State to establish a compelling governmental interest for the constitutional amendment, satisfying strict judicial scrutiny. Pointing out that “the Supreme Court has never ruled that sexual orientation is a suspect classification for equal protection purposes,” the appellate panel instructed that the correct standard in this case is rational-basis review, requiring the State to establish a rational relationship to legitimate state interests.

Moreover, in applying this standard, the form of the policy at issue, i.e., whether statute or constitutional amendment makes no difference in determining its substantive constitutionality.

The appellate panel thereupon determined that a rational relationship to legitimate state interests does indeed exist:

“….By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws ‘encourage procreation to take place within the socially recognized unit that is best situated for raising children.’ The State and its supporting amici (which included the Nebraska Catholic Conference and all dioceses located within the Eighth Circuit) cite a host of judicial decisions and secondary authorities recognizing and upholding this rationale. The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children, which modern-day homosexual parents understandably decry. But it is also based on a ‘responsible procreation’ theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot.”

The appellate panel had little trouble distinguishing Romer v. Evans. The Colorado enactment at issue in that case “repealed all existing and barred all future preferential policies based on ‘orientation, conduct, practices, or relationships.’…Here, §29 limits the class of people who may validly enter into marriage and the legal equivalents to marriage emerging in other States—civil unions and domestic partnerships. This focus is not so broad as to render Nebraska’s reasons for its enactment ‘inexplicable by anything but animus’ towards same sex couples.” (Citing Romer)

The second prong of the now-dismantled invalidation of Nebraska’s constitutional amendment was the rather odd idea that it constitutes an impermissible “bill of attainder.” Judge Bataillon sought to “dovetail” this analysis with the Equal Protection issues. This was an “error of law” said the appellate panel. The bill of attainder claim had no merit.

The third prong was an obscure attempt “to capture useful First Amendment principles.” With what might best be described as musings, the appellate panel rejected it:

“The district court cited no case supporting its suggestion that the First Amendment right ‘to petition the Government for a redress of grievances’ is violated by an enactment that makes it more difficult for a group with full access to the political process to successfully advocate its views. The First Amendment guarantees the right to advocate; it does not guarantee political success.”

So what happens now? The plaintiffs/appellees could seek en banc review by the full Court of Appeals for the Eighth Circuit, which consists of 11 full-status judges. They could seek review by the U.S. Supreme Court. Perhaps they will do neither.

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Capitol Correspondent for 07/07/06

Amazing, Remarkable Process Regularly Ongoing

While it pretty much goes without saying, it’s noteworthy nonetheless that the machinery of state government is always operating, even when the Nebraska Legislature is not in session. Public policy is being developed and implemented, primarily through the functions of administrative agencies; the bureaucracy is at work.

One of the more remarkable processes of state government involves development and promulgation of rules and regulations, the more intricate aspects of public policy that are subordinate to the Constitution and statutes and court decisions, but significant components of the law in their own right. On a practical plane, these tools of public policy tend to have the greatest impact on how conduct and interactions are governed.

Most citizens are otherwise too busy with their own situations and daily challenges to be concerned about the extensiveness of the State’s rules-and-regulations process. But it can be worth knowing that the office of the Secretary of State has an on-line regulations tracking system, at www.sos.state.ne.us/business/regtrack. It has information about the status of rules and regulations from every agency, board and commission of state government, some 90 in all. Updates occur on an almost-daily basis. The tracking includes a subscription-based, e-mail notification system.

The process of instituting or amending and adopting rules and regulations, which is subject to concepts of procedural due process under the Administrative Procedures Act, includes stages of drafting, proposal, public hearing, review and approval by the Attorney General’s staff, review by the Governor’s Policy Research Office and final approval by the Governor. While, practically speaking, a lot of special-interest input happens as a matter of negotiation during the drafting stage, all citizens have an opportunity to respond through the public hearings, which typically are convened after at least 30-days’ notice.

One example of this process in operation is that currently the Nebraska Equal Opportunity Commission, which regulates the prohibition of discrimination in employment, housing and public accommodation, is proposing some regulatory changes, including adding some new rules, repealing some current rules and amending others. A public hearing is scheduled for July 11 at the State Office Building in the Capital City.

Taking note of a couple of items left over from the Unicameral’s 2006 session…

Regardless of one’s views on the new law that will allow licensed Nebraskans to carry concealed handguns—LB 454 becomes operative on Jan. 1, 2007—it has some interesting quirks. One that we’ve paid attention to, obviously, sets forth locations at which a permit-holder is not allowed to carry his or her concealed handgun. The list is fairly lengthy, but it includes “school, school grounds, school-owned vehicle, or school-sponsored activity or athletic event;” and also, “place of worship.”

The term “place of worship” is not defined by the legislation, but thanks to Sen. Mike Flood of Norfolk, a co-sponsor of the bill, a noteworthy legislative record was made that the term is not intended to mean just the sanctuary of a church, but is to be interpreted broadly to include all of the affiliated ministerial, educational and fellowship facilities; in other words, the entire campus, so to speak.

On another level, the legislation also makes it possible, apparently, for any property owner to prevent permit-holders from carrying a concealed handgun onto the property, just so long as the owner “has posted conspicuous notice” of that decision.

It will be interesting to see if the Nebraska State Patrol exercises the permissive authority it has to promulgate rules and regulations for implementing LB 454 and if so, what details that process provides.

In a previous column we mentioned the fact that Senator Nancy Thompson of LaVista succeeded in getting her Attracting Excellence to Teaching program included in LB 1208, which was enacted. The program will use a modest amount of state lottery proceeds to help pay the post-secondary student loans of individuals who agree to take employment in Nebraska schools, whether public or non-governmental.

The debate over Senator Thompson’s meritorious amendment was not without a lamentable occurrence. It took the form of a gratuitous, nonsensical attack by Senator Deb Fisher of Valentine on allowing teachers benefited under the loan-forgiveness program to take employment in non-governmental schools. Somewhat to her credit, Senator Fischer said her piece, which appeared to be attributable in part to an axe she had to grind over the Legislature’s treatment of Class I school districts, and voted against the Thompson amendment, but did not try to knock that just provision out of the bill, or filibuster, or otherwise scuttle the measure.

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Capitol Correspondent for 06/30/06

Complexity of Immigration Issues Challenges Many

While some folks would not agree, in particular those at the polar ends of the point-of-view spectrum, the issues involved with U.S. immigration law and policy are enormously complex. There are social, economic, political, philosophical, and, yes, moral dimensions that frustrate and challenge the best thinkers and policy makers. The scope of the challenge is documented by the media on an almost daily basis.

These are not all-of-a-sudden, short-term or new-hybrid sorts of problems. The issues, in one context or another, have been perplexing for a long time.

The current U.S. Congress is striving to achieve enough agreement to add more reforms to reforms of the past. Two of the most compelling dimensions of the debate relate to border security/enforcement and the legalization process.

According to the U.S. Catholic Bishops Conference, which has been actively monitoring the policy situation and advocating for socially just reforms, the House of Representatives version of immigration reform, previously passed, is heavy on enforcement. The Senate more recently was able to reach its own compromise among splits over enforcement and earned legalization.

To his credit, Nebraska’s Senator Chuck Hagel was a key player in moving matters forward. When the Senate was unable to invoke cloture on the more socially just McCain-Kennedy plan, which was part of the bill originally reported by the Senate Judiciary Committee, Sen. Hagel became very influential and supportive in working with the earned legalization program.

Through Senator Hagel’s efforts to bring about compromise, earned legalization is likely to be “on the table” when Senate and House conferees try to work out differences in their legislation.

That’s a simplistic summary of a complex matter. What happens between the two houses of Congress is now what’s important.

A peripheral issue involving immigration policy will soon reach an important point in time. As of July 1 upcoming, individuals initially applying for, or undergoing re-determination on, Medicaid eligibility will be required to provide documentation, e.g., birth certificates or passports, verifying citizenship and identification.

The underlying policy isn’t new; in general, Medicaid always has been available only to qualifying U.S. citizens and certain “qualified aliens” but the “paper proof” requirement is new, as of the “Deficit Reduction Act” signed into law Feb. 8.

Presently, 47 states, including Nebraska, require Medicaid applicants to declare their citizenship under penalty of perjury. With the change, self attestation will no longer be sufficient.

Medicaid is the governmental health program that helps to meet the needs of poor people. About half of its recipients are children; about 10 percent are 65 or older.

Some state officials and advocates for the poor are justifiably concerned about the hardships this new policy could impose on those subjected to it. Many may not have the qualifying documents readily available and obtaining them can be difficult, time-consuming and costly for low-income and disabled persons.

Apparently, by most indications, it remains unclear exactly how the “paper proof” requirement will be implemented and enforced. Nebraska officials await more guidance from the Federal Centers for Medicare and Medicaid Services and apparently are ready and willing to effectively use the state’s electronic data base.

Shifting gears, drastically…

After almost two weeks of traveling, I spent some time catching up on newspapers that piled up during the hiatus.

In the midst of articles about important matters, I came across a curious piece in an early May edition of the Omaha World Herald. It was sort of a guest column apparently, under the headline, “Nebraska lagged on voting law for women.” I was in the process of skimming through this, until caught by the third paragraph:

“What got in the way of women’s suffrage in Nebraska? A lot of things, including Omaha society matrons, German beer and the Catholic Church.”

Whoa. Then later in the article: “The Catholic Church, the most consistent religious voice in opposition to voting rights for women, was by far the largest denomination in the state.”

This was the period approximately between 1856 and 1922.

I wasn’t around during that time, and I’m not much of a student of history, but I’ve worked for the Church in Nebraska for 30 years and I don’t recall ever having read or heard such a claim. I asked a good friend who’s been a Catholic Nebraskan for a couple of decades longer than I have about it, and she likewise had no knowledge or recollection of this.

What I found especially curious about this article and somewhat irritating as well, is that the author, irresponsibly in my estimation, provided no attribution or substantiation for his claim about the Catholic Church, cited no authoritative sources, and offered nothing as an explanation or rationale for the Church’s view, if in fact it was as alleged.

Not being inclined to just take the writer’s word for such a claim, I e-mailed him, a fellow by the name of David Harding. He responded rather quickly, advising that he “didn’t make it up” and that he would “pull the file” and send me some references. I’m looking forward to learning more, but so far, nearly three weeks later, nothing has arrived.

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Capitol Correspondent (6/09/06)

Persevering Through the Process

As it is with many realms of endeavor, persistence, perseverance and patience can pay off with accomplishment in the legislative process. There were several good examples of this as the 2006 session of the Nebraska Unicameral came to its conclusion.

Whether as a matter of timing or opportunity or conducive circumstances or skill mixed with good fortune, or maybe even the right alignment of the planets, several senators parlayed persistence, perseverance and patience into a positive result.

We identify Senator David Landis of Lincoln near the top of such a list. After several previous introductions of legislation proposing a state-level earned income tax credit, the idea finally became law for the long-tenured Lincoln legislator in 2006. He took advantage of a generally favorable set of circumstances, including his prominence as chairman of the Legislature’s Revenue Committee, to gain acceptance of a modest, refundable EITC in a multi-item tax modification package, LB 968.

His original bill on this topic for this session was LB 810, proposing a refundable Nebraska credit of 20 percent of any earned income tax credit taken on a Nebraska taxpayer’s federal tax return. This is a straightforward approach, piggybacking onto a sound, successful federal policy that promotes work over welfare by reducing the tax burden of low-income working families.

As it turned out, Senator Landis settled for a state credit of eight percent of the federal credit, which is still meaningful as a policy that improves the tax-code.

For many of his 12 years in the Legislature, Senator Jim Jensen of Omaha has advocated the importance of long-term care insurance and the idea of using public policy to encourage more Nebraskans to responsibly address the costs of such care. As chairman of the Health and Human Services Committee for three consecutive Legislatures, Senator Jensen has a keen understanding of the impact that long-term care costs are having on Nebraskans and on the State’s Medicaid budget, which is funded by taxpayers as support for many receiving such care. Thus, his consistent idea has been to provide public-policy incentives that can assist in enabling more Nebraskans to purchase long-term care insurance, or at least to consider this context in planning for the future.

This year, Senator Jensen guided LB 965 into law. It allows Nebraskans to establish specially designated savings accounts, the earnings of which can be withdrawn free of Nebraska income taxes, provided they are used under specified conditions—age or disability—for long-term care costs or for paying long-term care insurance premiums.

While Senator Jensen may not have achieved all that he hoped for in terms of public-policy—his foremost idea was to provide a direct income tax credit for costs of long-term care insurance—he has created attention for this important matter of concern.

In 2000, Senator Nancy Thompson of La Vista steered LB 1399 through choppy waters all the way into law. It created the “Attracting Excellence to Teaching Program Act.” The idea behind the program is to use a modest level of state funding as a means of forgiving student loans for teachers and prospective teachers who study in subject areas for which there is a shortage of elementary and secondary teachers and who agree to take employment in Nebraska schools, public or private.

Its merits notwithstanding, the program ran into a significant problem: despite its place in Nebraska law, it never became funded. Its original appropriation was one of the victims of a special budget-cutting session in 2001, and nothing corrective was previously achievable.

But Senator Thompson never gave up on her program.

As the result of her amendment to LB 1208, the Attracting Excellence to Teaching loan-forgiveness program will now share modestly in the proceeds of the Nebraska State Lottery. The legislation establishes an incrementally increasing funding formula through fiscal year 2015.

The foregoing accomplishments by Senators Landis, Jensen and Thompson had at least a couple of interesting aspects in common, one pretty significant and another probably not so much so. Significantly, these legislative victories occurred at a time when the State’s fiscal picture is pretty rosy; there is money in the treasury over and above required reserves. Not so significantly, but perhaps a bit so, all three of these senators are in the group of 20 being term-limited out of office this year. Their impending departures may have been of some influence to some of their colleagues.

There were other examples of persistence, perseverance and patience as well. Perhaps the best example of all was Senator DiAnna Schimek of Lincoln and her LB 239, making it possible for the children of undocumented immigrants to pay resident tuition rates for post-secondary education under several specified conditions. Her bill, which was an uphill struggle spanning more than just this Legislature, won enactment by a single vote as the very last piece of official lawmaking business.

After several years of patient nurturing, Senator John Synowiecki’s desire to expand State oversight and regulation of the installation, operation and maintenance of “conveyances”—passenger elevators for the most part—came to fruition as a late stage amendment to LB 489. The actual bill that became the amendment was LB 99, introduced early in 2005 and carried over to 2006; what’s more, it had ancestors that earlier fell along the trail.

And, Senator Mike Foley’s continuing efforts to recognize and protect the innocent unborn outside the context of abortion persisted all the way from the second day of the session in 2005 to the last day of the session in 2006. That’s 149 legislative days, leading to a successful conclusion for LB 57.

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Capitol Correspondent for 05/19/06

Maybe It Was the Way Last Season Ended

For all intents and purposes, it appears that Nebraskans collectively made it through another round of political campaigning and an election. The sun came up on May 10 and partisan unity once again became the emphasized theme in the aftermath.

Now there will be a little lull, before attitudes and energies begin to build in earnest toward the election that counts even more, the General Election in November.

One of the first e-mails to pop up on our screen the day after the election was from a long-time colleague who resides in another Midwestern state. His message expressed genuine surprise and curiosity about “what happened to Tom Osborne.” Of course, this non-Nebraskan, like many in that category we suspect, still identifies Nebraska and Tom Osborne more in terms of football than politics. Yet the surprise and curiosity were not extraneous musings; such a post-election reaction probably was on the minds of quite a few Nebraskans as well.

Our friend’s e-mail was sent to a lousy source if he was seeking truly worthwhile insight. Like many, we pay attention to the process, but we’re short on expertise and long on speculation; our opinion and ten bits will get you a cup of coffee. But the view from here is that probably no single factor determined the outcome; rather, some combination of several factors, such as the formidability of the incumbency, age, campaign financing, organization, strategy, timing, the weather, position on some issues, the what-have-you done-for-me-lately attitude, etc., etc.

Our favorite, speculative explanation keeps matters in the perspective of football. The Huskers’ late-season success in 2005 worked against candidate Osborne in his attempt to unseat the (un-elected) incumbent. Consecutive victories over Kansas State, Colorado and Michigan caused Husker fans to be upbeat and positive once again about their favorite pastime and pushed the iconic coach a bit more into past history. If those wins had been losses, the Osborne legacy and popularity would have been sustained at a higher level, rather than somewhat diminished by someone else’s success.

How’s that for an explanation of a political outcome?! You heard it hear first.

On balance, without regard to outcomes, Nebraskans should feel pretty good about the recent election. The campaigning, at least that which took place in an open, public display, was spirited, but about as positive as it realistically could be in this era of technology and media. This was most notably the case in the “big three” Republican races: U.S. Senate, Governor and Third District U.S. House of Representatives.

The candidates, especially the statewide “big six”—Heineman, Osborne, Nabity, Ricketts, Stenberg and Kramer—merit commendation for positive, informative, issue-oriented campaigns. Some of this is attributable, of course, to the fact it was “only” the primary and the candidates who squared off shared the affinity of party affiliation. Nevertheless, the tenor could have been a lot harsher and more bristly. Most Nebraskans, we suspect are glad that wasn’t the case.

Before moving on from the election, we would be remiss if we did not commend all the candidates who took the time and made the effort to respond to the questionnaire sponsored by the Nebraska Catholic Conference. These candidates took advantage of an opportunity to present their views on a range of important issues, for the information benefit of would-be constituents.

On the other hand, the minority of candidates who ignored the NCC survey not only failed to take advantage of an opportunity, but also exhibited indifference, if not some slight contempt, toward a segment of those they desire to represent.

All candidate responses to NCC’s multi-issue questionnaire were published in a totally impartial manner on its website, www.nebcathcon.org. They also were made accessible through links on the websites of each of the three dioceses. The responses (or lack thereof) of the candidates who advanced to the General Election ballot will continue on the website until superseded by a similar questionnaire for November’s election.

Due to a variety of circumstances, culminating with the strong urge to comment on the Primary Election, we have yet to provide a wrap-up on the second session of the 99^th Nebraska Legislature, which adjourned sine die on April 13. For the time being, suffice it to say that it was stalked by the reality of term limits, which are bringing 20 lawmaking careers to an end (at least for the time being), and it finished in a heightened level of controversy, over LB 1024 in particular, with its proposed solution for public school reorganization throughout Metropolitan Omaha.

One bill that merits specific mention presently, though, is LB 57, which passed overwhelmingly on the next-to-last day of the session. It establishes the crime of assault of an unborn child, i.e., non-lethal injuries. Moreover, as the result of fairly intense negotiation between Senator Mike Foley, the bill’s primary sponsor, and Senator David Landis, LB 57 also provides for enhanced penalties for the crime of assaulting a female victim, who is pregnant at the time of the assault. This combination of elements recognizing two victims quite likely makes LB 57 the nation’s most comprehensive public-policy response on this subject.

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Capitol Correspondent for 03/24/06

Right of Privacy a Wolf in Sheep’s Clothing

Just as there is no explicitly stated “right of privacy” in the United States Constitution, the same is true of the Constitution of the State of Nebraska. It’s not there, except perhaps by narrow reference to protection against unreasonable searches and seizures, and apparently never has been there throughout a history of some 130 years.

Some Nebraskans might be surprised to learn that the constitution does not state a right of privacy. It is one of those sounds-good, positive-connotation ideas, irrespective of what it might mean in particular contexts.

Federally, a right of privacy does not explicitly exist in the words of the Constitution, but has been determined through jurisprudence to exist in the penumbra of what the Constitution means and stands for, emanating from other, stated rights, especially due process. As a “penumbral” right, privacy was a key element in the U.S. Supreme Court’s infamous, tandem rulings in Roe v. Wade and Doe v. Bolton, which legalized abortion on demand.

One would be hard-pressed, we think, to establish with sufficient evidence that an explicit, constitution-based right of privacy has been missed in Nebraska, that Nebraskans have been worse off without it, or that its absence has had any serious impact on the ongoing development of public policy. Through tailored legislation and other forms of policy formulation an adequate measure of personal and family privacy is assured and respected.

This year, a resolution proposing to amend the Nebraska Constitution by adding a specifically stated right to privacy was introduced in the Unicameral. Senator David Landis sponsored LR 254CA. It proposes to add this wording to the Nebraska Constitution: “This state shall not make or enforce any law which infringes upon or interferes with the privacy of the person, family, home, property, documents, correspondence, or information of any person unless the rights of others are directly infringed or unless public safety can be ensured by no lesser means.”

Senator Landis has explained that the foremost reason he presented this constitutional amendment was as a response to concerns expressed by constituents about the Federal Patriot Act. Apparently, that explanation just establishes context, because it’s sure not clear how a state constitution would or could trump a Federal law.

LR 254CA was the subject of a public hearing in front of the Legislature’s Judiciary Committee on Feb. 23. The measure was not prioritized and remains under the jurisdiction of the committee. The hope here is that this measure finishes off the final 15 days of the current legislative session right where it’s at and thereupon expires. On balance, as a matter of public policy, it’s a flawed idea. It really is a “wolf in sheep’s clothing.”

The Nebraska Catholic Conference, pursuant to the leadership of the Diocesan Bishops, adopted a position of opposition to LR 254CA. Testimony to that effect was presented on behalf of the Conference at the public hearing.

In preparing that testimony, we reviewed case-law annotations that accompany the right-of-privacy provision in the state constitutions of Alaska, California, Florida and Montana, four of the less-than-a-dozen states that actually have such a provision. We jotted a list, not all-inclusive, of various subjects found to be implicated in one way or another with the right of privacy in these state constitutions: abortion, adoption, business records, criminal procedure, sexual conduct, possession and use of illegal substances, children, parental rights, professional-client privileges, possession of weapons, obscenity, pornography, campaign finance disclosure, confidentiality/disclosure of records, tax returns, medical treatment, assisted suicide, warrantless surveillance and blood tests.

The NCC testimony included the following statements:

“We do not know and cannot reasonably ascertain how Nebraska courts would rule on particular cases involving these subjects, and others as well, which implicate a broad right of privacy. But we do know and can reasonably conclude that the ability of the Nebraska Legislature to respond in tailored ways to particular policy issues and needs, such as those listed, would be severely circumscribed by this amendment. And, we know that legislation pertaining to any subject that a state court would determine to fall within the scope of this broad amendment would be presumed to be unconstitutional, contrary to the normal rule of adjudication, and would survive the presumption only if the State would successfully carry a rigorous burden of proof, one of not just compelling state interest, but of direct infringement upon the rights of others, or of ensuring public safety as long as there are no lesser means.

“Finally, we understand and appreciate that explicitly stating a right of privacy in the state constitution could have a significant emotional symbolism. However, as a practical matter, it would place beyond the Legislature’s control responses to an indeterminable range of important issues affecting the common good.”

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Capitol Correspondent for 03/17/06

Full-Day Sessions Cause More Action

With three-fourths of its 2006 session already completed, and only 15 legislative days to go, the Nebraska Unicameral has shifted into an upgraded sense of urgency, characterized by full-day floor sessions, some of which extend into the evening.

Even though there really isn’t anything that this second session of the 90^th Legislature absolutely has to accomplish—carrying through with some adjustments of the two-year, state budget passed last year comes closest to being a must-do—there are some significant issues that most legislators would like to address before final adjournment.

Budget policy typically extends into revenue policy and talk of tax relief is still alive. Issues involving organization and financing of public schools still loom large, as do some water issues. There also is a starter package of reforms for the state’s Medicaid program, which is likely to be more complex than most legislators might be anticipating.

This idea of full-day sessions has a timely meaning in another context as well.

The Education Committee recently advanced for floor debate a bill with an amendment that mandates that kindergarten programs provide no less than 1032 instructional hours during each school year. That’s mandatory full-day kindergarten. This proposed mandate would apply to all schools, private as well as public, and would take effect with the 2009-2010 school year.

There’s an interesting story behind the full-day kindergarten proposal, LB 228, which is Sen. Gwen Howard’s priority bill. It’s a story not so much about the idea itself, as about the questionable way in which it has been handled legislatively. But, that’s a tale yet unfinished, and to be told another time.

Since substantive reforms of Nebraska’s medical assistance program (Medicaid) have been a priority for policymakers since the passage of LB 709 last year, the ideas now percolating are likely to be addressed before this session ends. The Health and Human Services Committee has designated the Medicaid reform bill, LB 1248, as its second priority.

Some involved in this process think the early-stage reforms could be carried out administratively, exclusive of any legislative decision or expanded grant of authority. But most legislators probably don’t see it that way and want to at least provide for some oversight.

The Nebraska Catholic Conference was among several organizations and individuals expressing opposition to aspects of LB 1248 when it was given a public hearing by the Health and Human Services Committee. Even some witnesses who testified on the thumbs-up side doubted some specifics, if not the controlling philosophy.

Following are excerpts from the Conference’s testimony:

“Ours is a religious tradition that considers access to needed physical and behavioral health care to be a basic human right. This right flows from the sanctity of human life and the inherent dignity that belongs to all members of the human family….

“Our foremost reservation about Medicaid reform as it is proposed by LB 1248, as well as other aspects of the reform plan, is that materially poor persons otherwise eligible for and covered by Medicaid, whether children, pregnant women, seniors or individuals with disabilities, will lose coverage and/or will not be able to afford needed health care; some, even if they remain eligible, may not be able to afford the premiums, co-pays and/or deductibles.”

Updating a good bill introduced and saluted in a previous column, LB 810, proposing to establish a state earned income tax credit: the bill has been killed by the Revenue Committee. However, a scaled back version is part of a tax-reduction package the committee is likely to recommend to the full Legislature. The original bill proposed a credit of 20 percent of the Federal EITC, but the amendment suggests eight percent.

And finally, a couple of notes about Nebraska’s United States Senators:

First, we have been remiss in not mentioning this sooner, but Senator Ben Nelson deserves thanks and commendation for opposing the budget reconciliation conference agreement that Congress finally approved earlier this year. This current budget agreement includes cuts in human services programs that the United States Conference of Catholic Bishops and many others believe will have harsh consequences for those who are materially poor. Senator Nelson’s resistance stood in support of low-income children, families, elderly and people with disabilities; those who have least voice in the process.

Secondly, a lengthy and quite interesting profile of Senator Chuck Hagel was published in a New York Times edition of Feb. 12. It appeared under the byline of Joseph Lelyveld and this headline: “The Heartland Dissident.”

The article was inaccurate on at least one point. In the paragraph and half about the year Sen. Hagel lived in York, NE as a youth, the article said he bused tables at a hotel named the St. Cloud. Nope. Wrong. That hotel in York, our hometown, was the McCloud.

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Capitol Correspondent for 02/17/06

Time for Priority Bills to Claim Attention

When Nebraska’s 49 state legislators return from a four-day break respecting President’s Day, they will be working on the 30^th legislative day of their current session. It’s the halfway point; 30 legislative days to go.

Committee hearings will soon be finished, signaling the beginning of all-day floor sessions. In terms of processing legislation, more will be accomplished on the downhill trek than has been accomplished so far.

The senators and the standing committees also have passed the deadline for designating their priority bills. As the description indicates, these are bills that have some advantage for debate during the inward half of the 2006 legislative journey.

Lincoln senator Chris Beutler, whose lengthy tenure of service is subject to term limits at the end of 2006, has tabbed his LB 554 as his priority bill. It proposes to increase the state minimum wage from the current $5.15 per hour to $6.26 per hour in three annual, thirty-seven-cent increments. The minimum wage for employees who are partially compensated with gratuities, i.e., the “tipping wage” would be raised from the current $2.13 per hour to fifty percent of the minimum wage.

Nebraska law also allows employers to pay a “training wage” of $4.25 per hour, to employees younger than 20 years of age for the first 90 days of employment. LB 554 proposes to increase that rate to $5.15 per hour in three annual, thirty-cent increments.

All employers who employ four or more employees, except for certain seasonal employees, are required to pay their employees the minimum wage under state or federal law, whichever applies. Federal law governs businesses “engaged in interstate commerce,” including any entity that does at least $500,000 in business during a year. Covered employers who are not subject to the Federal law are subject to the state law.

Senator Beutler has a strong argument supporting his bill. The primary reason the minimum wage should be increased is to protect the purchasing power of low-wage workers in Nebraska. As years have passed, the purchasing power of the minimum wage has declined significantly and grown much slower than inflation.

The minimum wage also has an obvious connection to poverty. Ten percent of Nebraskans, including more than 20,000 children, live in poverty, according to the federal poverty level guidelines. For a family of three, e.g., a single parent and two children, the poverty level is $15,670 per year. A minimum wage worker who works 40 hours a week will make $10,712; that’s 33 percent below the poverty line.

Congressional efforts to raise the federal minimum wage are almost always ongoing. They are wrapped in politics. Regardless of that situation, Nebraska would do well to join the 18 other states, along with the District of Columbus, that have state minimums higher than the federal level. Enactment of LB 554 would accomplish that.

Lincoln Senator DiAnna Schimek has designated LB 239 as her priority bill. It proposes to ensure that Nebraska high school graduates who happen to be undocumented immigrants can attend any of Nebraska’s governmental post-secondary educational institutions at in-state-resident tuition rates. Other conditions also govern this opportunity: the student must have lived in Nebraska for at least three years; and must file an affidavit certifying that he or she will seek, or already is seeking, naturalization.

LB 239 is not an immigration issue. It’s an education issue. It seeks to treat fairly youngsters who don’t make the decision to enter the U.S. illegally, but rather come to Nebraska because of their parents’ decisions, which are almost always economically motivated. The bill would level the playing field, providing the same opportunity for all Nebraska high school graduates.

In their rich, inspiring joint pastoral letter of 2003, “Strangers No Longer, Together on the Journey of Hope, the Catholic Bishops of the U. S. and Mexico said this:

“From its founding to the present, the U. S. remains a nation of immigrants, grounded in the firm belief that newcomers offer new energy, hope and cultural diversity. Our common faith in Jesus Christ moves us to search for ways that favor a spirit of solidarity. It is a faith that transcends borders and bids us to overcome all forms of discrimination and violence so that we may build relationships that are just and loving.”

LB 239 fits this admonition. The Nebraska Catholic Conference supports the bill.

Both LB 239 and LB 554 face significant barriers on the road to enactment. The debate promises to be interesting. Nebraskans should let their representatives in the Legislature know their views on these bills.

One final note: it’s lousy news, but LB 769, proposing to establish a state income tax credit for education expenses at the elementary and secondary levels, hardly had a chance. Not long after its public hearing the bill was killed by the Legislature’s Revenue Committee. The vote was 7-1; another dubious indication of the lack of understanding, respect and appreciation that non-governmental schools and their patrons receive in this state.

Senator Don Preister of Omaha is to be commended; he was the only member of the committee who did not vote to kill this meritorious idea.

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Capitol Correspondent 02/03/06

LB 944 Would Repeal Bad Policy

In 1994, one of the “big” issues for the Nebraska Legislature was welfare reform. It was this state’s response to an attitude and energy that were sweeping through the states and the halls of Congress. There was concern about the level of spending on public assistance for impoverished families, in particular the program known as AFDC, aid for dependent children.

The permeating motivation was to reduce state spending by promoting self-sufficiency over welfare dependence. There was near universal agreement about the motivation, but competing views and differences of opinion about how to fulfill it.

The outcome of all the debate and negotiation back then was enactment of LB 1224, Nebraska’s version of a “welfare reform act.”

One idea that ended up in this package of policy changes was what many call a “family cap.” It is more accurately described as a child exclusion, because that’s its discriminatory effect.

The level of aid-for-dependent-children payments for impoverished family units, which meet eligibility tests of both limited assets and low income, is generally based on family size. The basic AFDC unit is one adult and one child. The base payment is $293 per month. But if there is more than one child in the eligible family, an additional $71 per month is provided for each additional child.

The child exclusion policy adopted as part of “welfare reform” in 1994 disqualifies any child who is born more than 10 months after his or her family’s initial eligibility interview from receiving the additional $71 per month. The child is excluded from the otherwise available assistance because the family size is capped as of 10 months following the initial eligibility interview.

Presumably, the motivation behind the child exclusion freeze on benefits was, and continues to be, to modify behavior, to teach the welfare mother a lesson in responsibility: if you’re already receiving AFDC you should not be getting pregnant again, because that’s welfare dependence and a barrier to achieving self-sufficiency. Regrettably, a majority of lawmakers bought into this idea in 1994. Efforts to keep the child exclusion out of the welfare reform package were unsuccessful.

This year an effort is being made to repeal this bad policy. Senator John Synowiecki Omaha introduced LB 944, which had its public hearing last week in front of the Health and Human Services Committee. Testimony in support of the bill included that of the Nebraska Catholic Conference. No one testified in opposition; no one appeared to defend this policy. There is no evidence that it has worked in any way, other than saving a few bucks, but driving poor families deeper into poverty.

Following are excerpts of the testimony presented on behalf of the Nebraska Catholic Conference in support of LB 944, in support of repealing the child exclusion:

“This position is the same as the position we took…when this provision was enacted in 1994. We said then and are compelled to repeat it again today: by discriminating against a child solely because of the circumstances of his or her conception, this policy violates the child’s human dignity and the common good of assisting those in need….

“Our religious tradition yields to no one in a longstanding call for family values, personal responsibility, sexual restraint and fundamental morality….However, we oppose the idea that an income assistance program that is intended to help in meeting the basic needs of impoverished children should be manipulated for purposes of attempting to reform or modify adult behavior….The policy aims at the behavior of the parents, but strikes defenseless children, thereby perpetuating the poverty.

“It is obvious that with the child-exclusion policy already impoverished families face a greater income deficit. Thus, the only assured result of this policy…is to increase the hardship for impoverished children. Children suffer the most….A key point to keep in focus is that AFDC is not a program established or designed to discourage poor women and poor families from having additional children. To regard it as such immorally weighs the lives of children in the scales of their parents’ poverty rather than by their individual dignity as human beings….

“We are also concerned that the punitive nature of the child-exclusion policy can pressure a woman’s decision to turn to abortion rather than to carry her child to term….In our view, an indeterminable number of poor women in Nebraska face the stark, unconscionable predicament of having to decide whether to allow their already impoverished families to sink even deeper into poverty or to abort their pregnancies.

“From a strictly theoretical perspective, the ‘family cap’ child exclusion may seem to relate to the goals of promoting self-sufficiency and reducing long-term welfare dependence. But at what human cost? At what cost in terms of respect for life and individual human dignity? The idea of testing theories of behavior modification at the expense of hardship for innocent, non-consenting children, both born and unborn, strikes us as being extremely difficult, if not impossible, to defend on ethical, social and public-policy grounds. Thus, LB 944 should be enacted, to repeal this policy.”

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Capitol Correspondent for 01/20/06

Public Hearings on Legislative Bills Present Opportunities

One of the unique aspects of Nebraska’s Unicameral Legislature is that with very few exceptions every legislative bill is given a public hearing during the session in which the bill is introduced. In each instance, the hearing is a significant opportunity for citizens to tell legislators, in a generally constructive way, just what they think about the various proposals for changing public policy. It’s a forum for responding to ideas.

The varied items of substantive legislation are scheduled for hearings by the chairpersons of the standing committees with respective jurisdiction over the subject matter. A committee of the Legislature’s Executive Board assigns the bills.

In some instances the public hearings accommodate diverse and competing viewpoints; other times it’s a “love fest.” Sometimes, testimony is emotional; other times, it’s more humdrum than you can imagine. Sometimes there’s great sense; other times there’s nonsense. It’s all part of an important process.

The current session of the 99^th Nebraska Legislature has moved to that stage when public hearings are underway at the State Capitol in Lincoln.

An example of a legislative bill that will have a public hearing this session is LB 769, introduced by Senator Mike Friend of District 10 in Omaha. His bill proposes to establish modest tax relief for parents and guardians who incur expenses in providing for the education of their children at the elementary and secondary levels, K-12.

The tax relief takes the form of a state income tax credit for a prescribed percentage of qualified expenditures, up to a maximum credit of $250 per year per elementary student and $500 per year per secondary student. The proposal is best described as an education expense tax credit. It would apply to expenses that include tuition, textbooks, various fees for academic courses and labs and transportation costs. It would be available to all those who pay such costs at any elementary or secondary school, public or private, operated legally under the laws of Nebraska. There is plenty of legal precedent and support for the constitutionality of such a policy.

Senator Friend’s LB 769 presents a particularly important opportunity for parents and guardians who determine that the best way for them to fulfill their state-law obligation to provide for the education of their children is by enrolling them in a non-governmental school, whether religiously affiliated or otherwise. These are Nebraska taxpayers, who, except in rare instances, are doubly burdened, paying for education through taxes and through tuition and fees. The hearing is an opportunity for parents who face these circumstances to make a case for tax justice, either orally or in writing.

A great deal of attention is being given in Nebraska these days to the organization and financing of elementary and secondary education, in both urban and rural settings. Typically overlooked in these considerations is the fact that nearly 40,000 students are enrolled in non-governmental schools. If policy makers are sincerely interested in achieving educational equity, then their deliberations ought to include ways of recognizing and supporting the value of parents choosing non-tax-supported alternatives. Investing in true educational choice is an idea deserving of consideration. Parents who make these choices need to speak out and be heard. LB 769 provides that opportunity.

The date for the Revenue Committee’s public hearing on this bill had not been set as of the deadline for this column, but such information can