What Should Be Done About Utah’s Unenforceable Campaign Session Contribution Law?

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By now it seems that everyone pretty much acknowledges that Utah’s law prohibiting candidates from soliciting campaign contributions during the legislative session is unenforceable as to candidates for federal office.  In addition, as I pointed out this past November, it may also be unconstitutional with respect to other candidates.

But the law can be fixed, and the fixes are not that difficult.

For example, rewriting the law like this (just want to make sure you’re clear this is a proposed rewrite) would clearly make its prohibitions (at least the ones that remain) enforceable:

36-11-305. Campaign contribution during session prohibited.

1. It is unlawful for a person, lobbyist, principal, or political committee to make a campaign contribution or contract, promise, or agree to make a campaign contribution to a legislator or a legislator’s personal campaign committee, or a political action committee controlled by a legislator during the time the Legislature is convened in annual general session, veto override session, or special session.

2. It is unlawful for a person, lobbyist, principal, or political committee to make a campaign contribution, or contract, promise, or agree to make a campaign contribution, to the governor, the governor’s personal campaign committee, or a political action committee controlled by the governor during the time the Legislature is convened in annual general session, veto override session, special session, or during the time period established by the Utah Constitution, Article VII, Section 8, for the governor to approve or veto bills passed by the Legislature in the annual general session.

3. The prohibitions contained in this section shall not apply to a contribution, contract, promise, or agreement to make a campaign contribution to an announced candidate, or to such candidate’s person campaign committee or a political action committee controlled by such a candidate, for United States Congress.

4. The prohibitions contained in this section shall not be construed to prohibit an announced candidate from making a direct personal contribution to that candidate’s personal campaign committee.

3. 5. Any person who violates this section is guilty of a class A misdemeanor.

There it is representatives/senators, H.B./S.B. ____.  The proposed revisions above are just a reflexive first crack at fixing the law, but they address the problems of federal preemption as well as potential constitutional concerns resulting from the extension of the prohibitions to all people, as opposed to only lobbyists.

It would leave the law enforceable as to legislators and the governor, if running for re-election or another municipal, county, and state offices, when it comes to contributions from lobbyists and political committees, but would allow citizens and candidates to make contributions to candidates during the legislative session.  It’s primary effect would be to eliminate contributions from lobbyists made during the session, which was the primary focus of the law as originally enacted.  Contributions to candidates for federal office would be regulated by federal law.  If our legislators don’t like the fragmented nature of the law as it remains, they should repeal it.

Regardless of the final language that’s used, the fix is straightforward and should be made.  But certainly no current candidate is going to bring a legal challenge to the law, thereby giving his opponent an issue to use against him in the upcoming campaign.  And I worry that our state legislators (and perhaps the governor himself) likewise lack the political will to do anything about Utah’s session contribution law because they’re worried it might be bad for their political careers to become known as the person who loosened restrictions on politicians being able to solicit money during the legislative session.

Indeed, it appears that everyone may be content just to leave the law on the books as another unenforceable statement — a statement that is, though without the actual force of law, nonetheless potent because no one wants to risk their careers by being the one to cross it.  Or, maybe because some wish the law were enforceable and are content to let it operate as though it were.   Both sides rationalize their positions by saying, “Hey, enforceable or not, it’s a good practice.  Why not just leave things as they are?”

But regardless of whether people shouldn’t be taking campaign contributions during the legislative session, this isn’t the way we should be legislating (or, not legislating, in this case).

Someone needs to step up and fix this law, or get rid of it altogether.

 

Book Review — Plain Honest Men: The Making of the American Constitution, by Richard Beeman

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I started reading Plain Honest Men as research for a blog post I was doing on the Seventeenth Amendment.  I was trying to get a good sense of just what might have been in the minds of some of our Founding Fathers when they decided to locate authority to elect United States Senators in state legislatures.  I had my own ideas, but I was looking to find some confirmation from a source that wasn’t too difficult to wade through.

I enjoyed it and learned a few things along the way.

There’s nothing new in Plain Honest Men.  It’s a narrative history of the Constitutional Convention interspersed with biographical sketches of some of the major players.  Beeman’s treatment of the convention and its participants is evenhanded, so much so that it occasionally makes things a bit dull.  But for those looking for an accessible, blow-by-blow account of convention debates without being forced to wade through Madison’s Notes, Plain Honest Men is probably as good as anything out there.

Beeman takes as his starting point Shays Rebellion, focusing on how it energized calls for a convention to revise the Articles of Confederation and then follows the Constitution through ratification and the Bill of Rights.  But although he addresses significant pre- and post-convention events (including providing some interesting commentary on the participants attitude toward exceeding their authority by supplanting the Articles of Confederation and how the perception and use of the Federalist Papers has changed over time) the focus of Plain Honest Men is squarely on the convention itself.

About one-half of the book is devoted solely to the debates (and eventual compromise) over representation.  Beeman spends so much time on this one issue, in fact, that it becomes somewhat tedious.  But then again, this is probably how the delegates felt themselves.  Though a bit long-winded, Beeman’s treatment of the question of representation comprehensive and very informative.  You’ll learn something new.  Article III and the judiciary are (as they were during the debates themselves) treated only superficially.

Perhaps the most interesting parts of Beeman’s narrative (for me) dealt with the convention delegates’ struggles to envision a single executive that could fill the space between a monarch and prime minister.  It was surprising for me to learn how even delegates supportive of a strong executive were very pessimistic on this point, with some going so far as to admit that they believed the system they were creating was doomed to fail in the short term (and they weren’t far wrong).  You come away with the distinct sense that Constitution’s ambiguities about Presidential power were the direct result of delegates who not only couldn’t agree on what they wanted, but didn’t really know what they wanted when it came to the American President.

A close second to Beeman’s discussion of Presidential power was his treatment of slavery in the Constitution and the tortured efforts the delegates went through to avoid mentioning it — whether in the Constitution itself or even in the debates themselves.

The title of Beeman’s book was taken from a statement by Robert Morris, a Pennsylvania delegate to the convention, who, when asked about the Constitution and convention after the fact, stated his opinion that the Constitution was best viewed as a struggling, though successful, effort of plain honest men.  Beeman obviously holds the same opinion.

H.B. 49: Firearms Revisions, Rep. Paul Ray

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Well folks, it’s just about that time of year again — Utah’s legislative session kicks off in less than a month, and I want to get a head start on some commentary, as I have a couple of very big mediations scheduled for the week before the session begins that are going to take basically all of my time for those preceding two or three weeks.

There are a few 2012 general session bills are already posted on the Utah legislature’s website, and while browsing through them this morning, I found some that are bound to generate some interest.  I’ve decided to kick of my coverage of the 2012 legislative session with H.B. 49, proposed by Representative Paul Ray of Roy, which is titled “Firearms Revisions” and is the latest chapter in the ongoing saga in the battle over guns at the University of Utah.  Representative Ray’s legislation would prohibit state governmental entities from using other provisions of Utah’s criminal laws to prevent individuals authorized to carry a firearm from openly carrying on government property.

Some Background

At this point, the battle over concealed weapons at the University of Utah is into its eleventh year, and the resulting collateral damage is significant.  Taxpayers and students are out hundreds of thousands, if not millions, of dollars in legal fees and costs at this point (paying for both sides of the fight), and Utah lost the services of perhaps its ablest trial (and aspiring appellate) judge, Robert K. Hilder, due to legislative vindictiveness toward the judiciary that would make Newt Gingrich proud.  Furthermore, in yet another ironic twist for a body professing committment to local control, educational choice, and government close to the people, the Utah legislature, in its crusade to bring the University of Utah in line, has completely centralized gun policy at the state level.  See Utah Code Ann. § 53-5a-102.

Representative Ray’s proposed legislation was almost certainly prompted by an article from the Salt Lake Tribune that appeared earlier this year revealing the University of Utah’s internal strategy to deal with individuals openly carrying firearms on campus.  The online version of the Tribune’s article contained a link to an electronic copy of a leaked internal University memo outlining how police officers were to use various provisions of Utah’s criminal laws to cite individuals who were the subject of complaints from fellow students for “openly carrying or displaying a firearm on campus.”  Here’s a screenshot from the leaked memo:

Internal U of U Memo

In a letter accompanying the memo, then-President Michael Young explained the rationale for the policy:

As you know, concealed weapons permit holders may carry a concealed weapon on this campus. However, Utah statutes do not permit anyone to open carry on campus, regardless of whether the person has a concealed carry permit.

The law permits me (and those I designate) to address conduct on campus that interferes with or obstructs the educational process and the peaceful conduct of activities on the campus. You should apply this law to any individual who is observed with a weapon on campus. Please instruct the individual that revealing his or her weapon creates an intimidating environment and interferes with the peaceful activities of the cainpu.s. In the first instance, you should seek voluntary compliance by asking the individual to conceal his or her weapon.  However, if the individual will not voluntarily conceal his or her weapon, you should take whatever action is necessary and appropriate to remove the individual from the campus.

Analysis

There is no indication from the leaked memo that the University of Utah intends to go after a person not carrying openly who has a concealed carry permit.  In fact, there is an express indication to the contrary.  The policy is designed to minimize disruptions to the educational environment by those rare people who, for whatever reason, may decide to openly carry a firearm around a college campus in this post-Columbine and Virginia Tech world.  And the University adopted what seems to be an extraordinarily common sense way of dealing with the problem, given the restrictions currently imposed.

But H.B. 49 would prevent the University of Utah, or any Utah governmental authority, from adopting these kind of common sense policies that balance the rights of gun owners with concerns for public order and perception of safety.

It would prohibit charging an individual with any of the following crimes for openly carrying a firearm or other dangerous weapon absent some undefined level of  ”additional threatening behavior”:

  • Utah Code Ann. § 10-8-47 (powers of municipalities).   Intoxication — Fights — Disorderly conduct — Assault and battery — Petit larceny — Riots and disorderly assemblies — Firearms and fireworks — False pretenses and embezzlement — Sale of liquor, narcotics or tobacco to minors — Possession of controlled substances — Treatment of alcoholics and narcotics or drug addicts.
  • Utah Code Ann. § 10-8-50 (powers of municipalities).   Disturbing the peace — Public intoxication — Fighting — Obscene language — Disorderly conduct — Lewd behavior — Interference with officers — Trespass.
  • Utah Code Ann. § 76-6-206.   Criminal trespass.
  • Utah Code Ann. § 76-8-703.   Interfering or intending to interfere with activities — Failure to leave when ordered.
  • Utah Code Ann. § 76-8-704.   Violation of rule or regulation of institution — Failure to leave when ordered.
  • Utah Code Ann. § 76-8-705.   Willful interference with lawful activities of students or faculty.
  • Utah Code Ann. § 76-9-102.   Disorderly conduct.
  • Utah Code Ann. § 76-9-103.   Disrupting a meeting or procession.
  • Utah Code Ann. § 76-9-104.   Failure to disperse.
  • Utah Code Ann. § 76-9-106.   Disrupting the operation of a school.
  • Utah Code Ann. § 76-10-506.  Threatening with or using dangerous weapon in fight or quarrel.
  • Utah Code Ann. § 76-10-507.  Possession of deadly weapon with intent to assault.

H.B. 49 would also require prior legislative approval for any governmental authority’s regulation of firearms — including any attempt to prohibit or penalize open carrying of firearms — and would automatically void any “firearm or dangerous weapon law, ordinance, rule, regulation, code of conduct, or contractual obligation enacted, made, adopted, or entered into” without prior legislative permission and which does not specifically cite to the statutory section containing legislative authorization.  In short, to the extent there was any doubt about whether open (as well as concealed) carrying prohibitions had been centralized under state authority, H.B. 49 would remove that doubt.

H.B. 49 amounts to a declaration that legally, openly carrying a firearm (or any other dangerous weapon) does not amount to “disrupting the operation of a school,” “disorderly conduct,” “interfering with activities,” or “willful interference with the lawful activities of students or faculty.”  By logical implication, it declares that revealing your weapon on government property is not “additional threatening behavior” and therefore is not citable under Utah’s criminal laws (at least those catalogued above; if there are others, I’m not aware of them).  Even if, in most instances, this law makes sense, H.B. 49 reduces the options a police officer has to deal with disorder that might result due to an open carry  situation.  Independent of whether one can imagine a case where revealing, or openly carrying your weapon, could be deemed threatening to others (and I can), you can certainly imagine cases where such an act would be extraordinarily disruptive to the educational goals of a premier research university.  But H.B. 49 would remove that fact from consideration.  Under this law, it wouldn’t matter if openly carrying were extraordinarily disruptive in specific context.  H.B. 49 would place the focus exclusively on danger and threatening actions, not the public response.

This seems, to me, to be a misguided, and unnecessary, approach to the problem of openly carrying a deadly weapon on the campus of an educational institution.  My recommendation:  leave the laws as they are, and allow enforcers the flexibility to respond as situations dictate.

Utah Supreme Court — “Minor Child” Includes Unborn for Purposes of Wrongful Death Statute

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Yesterday, the Utah Supreme Court made news when, in a 4-1 decision in the case of Carranza v. United States, it ruled that Utah’s wrongful death statute allowed parents to bring a wrongful death claim on behalf of an unborn child.

Although the Court reached its result 4-1, with only Justice Nehring dissenting, the decision spawned three separate opinions — the “majority” opinion by Chief Justice Durham, joined by Justice Parrish; a concurring opinion by Justice Lee, joined by Justice Durrant; and Justice Nehring’s dissent.  The opinions couldn’t be more different in the way they approach a difficult question of statutory interpretation.

Before I jump into some brief summaries of the various opinions (followed by a few of my own thoughts), a caveat about the impact of the Court’s decision:

It’s important to note right up front that, in its decision, the Court was interpreting a version of Utah’s minor wrongful death/injury statute that is no longer in effect.  In 2009, the Utah legislature amended the statute so that it only grants parents a cause of action for injury to minor children; not for wrongful death.  Thus, despite the Court’s ruling, parents cannot sue for wrongful death of their unborn children because Utah no longer has a statutory cause of action.  The court’s ruling does seem to mean, however, that parents can sue for prenatal injury to an unborn child that survives birth.  

For Non-Legal Types: A Primer on Statutory Interpretation

Statutory interpretation is all about intent.  When it interprets a statute, a court’s goal is to find out what the legislature intended to accomplish when it passed a law and to interpret the law in a way that gives effect to that intent.

But the court has a very specific rules about how it can discern legislative intent.  First, the court is going to look at the language of the statute itself. If the court decides the language is clear, it won’t look at anything else, and will make it’s interpretation based on the plain meaning of the statutory language.  This is a judge developed approach that accomplishes a couple things.  First, it holds the legislature’s feet to the fire a little bit, making clear that the courts are not going to bail them out and reinterpret laws contrary to the way they are written.  It encourages legislators to draft laws using words that clearly communicate how they want the law to be applied. It also (theoretically, anyway) makes it more likely that a legislature will enact laws that can be read and understood by the citizens against whom they will be applied.

While assessing legislative intent from the statutory language is the goal, language that has a plain meaning under most circumstances can become ambiguous in certain situations. When a court, in a specific situation, can’t clearly discern how the legislature intended a law to apply based on the text of the law alone, it will look to other sources to determine legislative intent. In particular, courts will look to legislative debates and committee reports, context within the statute and other statutes, and whether the statute was enacted in response to a specific event, among others.

But it’s important to remember that even thought the court looks to other sources, the question is still the same:  What did the legislature intend to accomplish when enacting this law?  Thus, the one thing a court must not do — even when a statute is drafted so ambiguously that legislative intent may be fairly described as “clear as mud” — is interpret the statute in accordance with the preferences of the judges as to what the law should be.  Respect for the separation of powers requires that a court make its best efforts to interpret the law in accordance with the legislature’s intent.

Of course, in the event the court gets it wrong, the legislature can always overrule them by passing another law. But that’s neither here nor there.

With that out of the way, on to the opinions.

Chief Justice Durham 

Chief Justice Durham’s opinion is the most surprising of the three, and not in a good way.

The case hinged on whether the use of the term “minor child” in the wrongful death statute referred only to minor children who survived birth, or to minor children, whether born or unborn.

The Chief Justice, seemingly unwilling to acknowledge the ambiguities in the term “minor child,” tosses aside competing interpretations with a matter-of-fact assertion — supported exclusively by a dictionary definition and cases from other states — that the term “child” is usually used to refer to both born and unborn children.  The Chief Justice then reasoned that the addition of the word “minor”  in front of child was meant to set an upper limit on the parental cause of action (i.e., parents lose the right to sue on their child’s behalf when their child reaches the age of majority)  and didn’t speak to the question of whether the term “child” encompassed the unborn as well as born children.

In support of her conclusions the Chief Justice also quoted language from Utah’s judicial statutes emphasizing that the “public policy” of Utah is to protect the rights of all persons, including “unborn persons” (note the inclusion of the modifier “unborn” in this instance), and the following reasoning from an Ohio court:

Suppose, for example, viable unborn twins suffered simultaneously the same prenatal injury of which one died before and the other after birth.  Shall there be a cause of action for the death of the one and not for that of the other? Surely logic requires recognition of causes of action for the deaths of both, or for neither.

While the Chief Justice’s logic may be persuasive as a matter of policy, it doesn’t tell us much of anything about legislative intent.  It’s entirely possible that the Utah legislature intended the interpretation of the law articulated by Chief Justice Durham, but dictionaries and citations to other jurisdictions don’t tell us whether they did or whether they didn’t.  And therein lies the problem.

Justice Lee

While Justice Lee reached the same result as Chief Justice Durham, his legal analysis was, in my opinion, much more robust — though not without its issues.  Acknowledging the ambiguities in the term “minor child,” Justice Lee eschewed any reliance on the statute’s “plain language.”  To him, the language was anything but plain, and he pointed out the reasons he though Justice Durham’s plain language analysis was wrong:

Where both parties’ interpretations fall within the range of meanings identified in dictionaries, it is unhelpful for the court to rest on the unelaborated assertion that our chosen construction is dictated by the “plain language.” Too often, a court’s conclusion that statutory language is “plain” is a substitute for careful analysis. At best, such unexplained conclusions are based on a judge’s gestalt sense of the best meaning of the words in question. At worst, the bare insistence that statutory language is “plain” is cover (perhaps subconscious) for judicial policymaking.

Any appearance of the latter is unacceptable. And the former is insufficient, as it gives no guidance to the drafters or targets of legislation as to how this court will interpret statutory language (beyond the unhelpful assurance that we will do what seems best and label it “plain language”). In my view, then, we need to identify the linguistic and statutory cues that persuade us that one interpretation or the other is appropriate.

Failing to find a clear indication of legislative intent in the statute’s plain language, Justice Lee looked elsewhere to determine what the legislature intended with respect to unborn children when it used to the term “minor child.”

Justice Lee took as his starting point what he described as a “universal” and “undisputed” rule that “prenatal injuries are actionable when a child survives” a tortious act (i.e., injury) inflicted in utero (It is notable that, while Justice Lee cites to numerous decisions from other jurisdictions in support of his claim, he does not cite to any Utah cases adopting the universal rule).  From the premise of the rule that parents can sue, on behalf of their surviving children, for prenatal injuries, Justice Lee concludes that it would be anomalous to think that the legislature intended that parents of children who died from the same prenatal injuries lacked any remedy at law:

[G]iven that minor children have tort claims when they survive a tortious act in utero, it would be absurd to read the statute to foreclose such claim when the fetus is so battered that he dies in the womb. If a “minor child” includes a fetus who suffers tortious injury, surely that same term encompasses the same kind of being that suffers an even more horrific tortious act.

A contrary view would yield perverse incentives that the wrongful death statute cannot reasonably be read to countenance.  If “minor child” did not extend to a fetus, tortfeasors would be better off killing a fetus in the womb (in which case they would escape liability) than to merely injure it (in which case they would be liable for the injuries or post-birth death of a fetus if it happens to be born alive, however fleeting its sojourn outside the womb). “It would be bizarre, indeed, to hold that the greater the harm inflicted the better the opportunity for exoneration of the defendant.”

Although Justice Lee assumed that it would be bizarre “to hold that the greater the harm inflicted the better the opportunity for exoneration,” I’m not certain that is so self-evident.  For example, the legislature could have reasonably (i.e., not bizarrely) concluded that, while it made sense to compensate parents of surviving children for medical expenses that would be incurred as a result of a prenatal injury, it made less sense to provide a means of compensation for parents when the child on whom a prenatal injury was inflicted did not survive the injury.  By creating a cause of action for prenatal injuries, the legislature could have been focused on ensuring that compensation was available to families who would have to incur the ongoing medical expenses in caring for an injured, but surviving, child.

The legislature could have further intended that any punishment meted out to a person causing such a prenatal injury would be through the criminal, rather than the civil, law and that the criminal sanctions would serve as a sufficient deterrent.  Or, distasteful as such a viewpoint is to me personally, the legislature could have concluded that a fetus is not a child and therefore totally outside of the protections of civil law unless and until it survived birth.  Finally, one could quite easily question Justice Lee’s implicit assumption that the Utah legislature enacted the wrongful death statute with the background knowledge that the “universal” rule provided for recovery for prenatal injuries, especially given that Justice Lee provided no evidence that this rule had been adopted in Utah as part of the statutory or common law.

None of this is to say that Justice Lee’s interpretation is incorrect.  But it does help show just how tricky this process of statutory interpretation can be.  Sometimes, when there are no definitive clues as to legislative intent in a specific situation, judges have to take their best shot at things amidst a lot of conflicting signals.  Because they are engaged in statutory interpretation, they aren’t free to just say, “Well, it might be this and it might be that, so I’m going for the one I like best.” (though this may sometimes happen, despite best efforts to the contrary).

Justice Nehring

Justice Nehring was the lone dissenter in this case and set out three reasons for his contrary interpretation of the wrongful death statute:

  1. The plain language of the statute referred only to children that survive birth.
  2. A cause of action for wrongful death requires clear direction from the legislature.
  3. Interpreting the wrongful death statute to apply to unborn children would lead to absurd results.

Points 1 and 3 of Justice Nehring’s opinion are unpersuasive.  His plain language argument suffers from the same fatal flaw as Chief Justice Durham’s — the statutory language is ambiguous, not plain.  His third point misses the mark because the absurd results he identifies only ensue if the majority definition of minor child is extrapolated to other largely unrelated statutes.

So, when I began to read Justice Nehring’s dissent, I brushed over points 1 and 3 and immediately latched on to point number 2 — which seems to have great potential to resolve this whole matter.  If this indeed is the judicial rule in Utah — that the courts have required the legislature to make a clear statement when creating a cause of action for wrongful death — the legislature hardly provided “clear direction” in its wrongful death statute.

Unfortunately, Justice Nehring’s opinion doesn’t live up the promising billing.  He cites to no judicial precedent requiring a clear statement from the legislature before courts will recognize a cause of action for wrongful death.  Rather, he simply offers his opinion that, had the legislature intended to create a cause of action for injuries to unborn children, it would have said so explicitly.

Even though he under delivers (never a good idea in legal argument, much less a judicial opinion), Justice Nehring makes an important point.  The Utah legislature has shown a tendency to use the modifier “unborn” to distinguish living persons/children from unborn persons/children.  Although Justice Nehring (inexplicably) does not cite to any specific examples of this usage, Justice Durham does the citing for him (see paragraphs 11 and 12 of the majority opinion).  All other things being equal, one could reasonably rely on this usage tendency as indirect evidence of legislative intent that the wrongful death cause of action is only available to parents of surviving children.

Some Thoughts

Ultimately, this is a case where it seems as though it may be impossible to conclusively determine legislative intent.  When confronted these types of cases, judges — although they speak with great certainty — are really just taking their best guess.  Ultimately, I come down with the majority in this case for two reasons.  First, Justice Lee’s reasoning regarding the asymmetry of treatment created by defining a “minor child” as a living child, though not decisive, is nonetheless forceful given the current language and common law backdrop.  Second, Justice Lee’s structural reasoning is strengthened by the statutory provisions cited by Chief Justice Durham stating that the legislative public policy of Utah is to protect the rights of all persons, even the unborn. In my opinion, these two points, taken together, outweigh Justice Nehring’s one strong counterpoint.

Regardless of your views on the merits of court’s opinion, this statute should be clarified in the upcoming legislative session.

Dan Liljenquist and State Level Medicaid Reform

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If you’ve ever attended one of his “fiscal reality” town hall meetings, you’ll notice the passion with which Senator Dan Liljenquist talk about entitlement reform.  He’ll tell you it’s what pulled him out of the private sector and into politics.  You can hear the excitement in his voice when he talks about how Rhode Island — the bluest of all blue states — enacted sweeping pension reform legislation this past year to forestall a fiscal collapse.  And you feel his real frustration when he speaks about the fact that a “mid-level bureacrat” is holding up Utah’s Medicaid waiver request over small proposed co-pay increases.

Liljenquist has built quite a name for himself as the state level entitlement reform guy nationwide.  It’s what he does, and, thus far, he appears to have done it in impressive fashion.  So these days, he’s the guy that other people talk to when they want to do it, too.

But despite all the notoriety, I suspect there are quite a few people, especially here in Utah, that don’t understand what exactly it is that Liljenquist has done when it comes to entitlements.  So I wanted to put up this post summarizing the nature of Liljenquist’s Medicaid reforms here in Utah, and then offer some brief thoughts on the future of state-level Medicaid reform (and how it may tie in with Liljenquist’s future political plans, which may be the worst kept secret in Utah).

What’s Been Done

Liljenquist’s reform efforts were prompted by some alarming numbers.  In the case of his Medicaid reforms, it was the accelerating growth of Medicaid as a percentage of Utah’s budget.

Medicaid, though jointly implemented by the federal government and the states, is a federal program.  And the federal government sets uniform eligibility requirements for state Medicaid programs, while each state (with significant federal funding assistance, of course) is left to meet those requirements with its state level programs.  The continually soaring cost of health insurance — whether employer-funded and privately purchased — together with the difficult economy has led to a rapid rise in eligibility for benefits.  As a result, states are being forced to budget ever larger shares of their shrinking (or stagnant) revenue streams to meet the increased demand.  And Obamacare, when fully implemented in 2014, will expand eligibility even further.  These days, Medicaid expenses are growing fast enough, and becoming large enough, that they legitimately threaten to crowd out other important state services, including public education.

So, what to do?

Well, the federal government could grant limited waivers to Medicaid eligibility requirements for states who need them.  But it won’t.

Kathleen Sebelius (President Obama’s Secretary of Health and Human Services) has made clear that states cannot expect any flexibility with Medicaid when it comes to eligibility; the current federal administration is not about to let Utah, or any other state, reduce eligibility requirements, even (and maybe especially) in the middle of a recession.  And the two most reviled statutes in recent memory (at least from the right side) — the stimulus and Obamacare — both contain provisions protecting Medicaid eligibility.

Although Utah cannot control the number of people who are eligible for Medicaid benefits from the state level, Sebelius has suggested that states — as they have been in the past — will be given some flexibility when it comes to the nature of benefits themselves, and that’s the starting point for Liljenquist’s proposals.

The essence of Liljenquist’s reforms involve limiting costs by (1) tying Medicaid expenses to budget growth and (2) changing treatment incentives.  These two components are designed to reduce total cost as well as to make expenses predictable in relation to each year’s revenue (which obviously fluctuates due to a number of different factors).

According to Liljenquist, Utah’s current Medicaid model — a combination of managed care and fee for service — incentivizes overtreatment by hospitals and physicians, and, more importantly, irresponsible overuse by Medicaid recipients (e.g., unnecessary trips to the emergency room).  Liljenquist proposes moving Utah’s Medicaid system to a managed care+ philosophy designed to encourage more cost effective treatment.  Here are the highlights:

  • The state would allocate what amounts to block grants of its Medicaid funds to groups of healthcare providers known as Accountable Care Organizations (“ACOs”) on a statistically calculated (based on disease rates and risk profiles) per patient basis.
  • Each patient would be assigned what’s called a “medical home,” and a healthcare provider would be assigned to manage that patient’s care.  Patients would have a limited ability to choose their initial ACO and would have an option to switch ACOs once per year during an open enrollment period.
  • The ACOs would profit from Medicaid to the extent they facilitate effective and responsible treatment for their patients; since Medicaid payments would no longer be tied to specific treatment services provided, Liljenquist’s reforms would reduce the incentive to over treat for profit.
  • The state would offer some incentives, such as reduced co-pays or even cash rewards, for ACOs and patients who take advantage of preventative treatment options.
  • The system seeks to avoid the potential incentive to under treat patients by requiring that ACOs maintain a quality of treatment equivalent with that provided under the current system.
  • Compensation for services provided would remain in line with compensation under the current system; any expected savings would be generated by a relative predominance of more preventative and cost-effective treatment options.
  • The state would infuse some predictability into Medicaid funding by tying it to budget growth going forward.  In years where there is a surplus, the surplus would be put into a rainy day fund.  In years where enrollment growth exceeds expectations, benefits would be reduced across the board according to a predetermined schedule.
  • The state would seek modest increases in co-pay requirements for certain health services for those on Medicaid.

The Utah legislature’s fiscal analysts office estimates that the proposed reforms would result in savings of $770 million over the first seven years they’re implemented.

Liljenquist’s reform effort is just beginning, and can’t be implemented without permission from the U.S. Department of Health (USDHHS) and Human Services.  The specific reform bill, S.B. 180, passed unanimously by the Utah legislature during the 2011 session, required the Utah Department of Health to develop the specific details of a reform plan, and submit a request for waiver to USDHHS, which it did on July 1, 2011.  The waiver request is available online, for those interested in getting down into the details.  If the waiver request is granted in time, the initial reforms are set to be implemented in July 2012.

Where Do We Go From Here?  And What’s the Future for State Level Medicaid Reform?

Liljenquist’s proposed reforms are an attempt to work within the present system, frustrating as that system may be for reformers.  And Utah’s new approach does seem promising.  Of course, only time will tell whether the projected cost savings are realized and whether the quality of treatment for patients on Medicaid remain high.  But what Utah is proposing to do, while not wholly innovative, is a significant step forward in deal with the problems created by partially-funded federal mandates that result in unpredictable expenses.

But ultimately, thanks to that pesky Supremacy Clause, state level Medicaid reform can only get you so far.  Furthermore, you can never be certain that the reforms will be enduring, as they are subject not only to Congressional changes in course (see, e.g., Obamacare), but also to a somewhat unpredictable bureaucracy, subject to changes in approach based on the four-year Presidential election cycle.  Finally, there is the oft-cited concept as the states as laboratories of democracy for federal policy; the irony in this case is that if state reforms are successful in providing effective care at a reduced cost, they might serve as models for National Health 2.0 — “Hey, Utah’s got this great approach to effective cost, statewide government funded health care, let’s try it nationwide!”  Indeed, when I started investigating Liljenquist’s proposal, I thought to myself, if this works are well as they say it’s going to, it sounds like something that could go national and be, relatively speaking, cost effective.

All this reminds us, simply, is that Medicaid, despite the promise of state reforms, is a federal program, and real, fundamental change must happen at the federal level.  The drivers of the Medicaid problem are eligibility and benefit standards, and, as a result, the basic components of real, substantive reform involves dealing with questions of eligibility and tiered-benefits, not just increased effectiveness in treatment and care delivery (which treat the symptoms).

The premise of Medicaid is about setting creating a safety net and setting a basic floor for those who can’t afford health care coverage.  I think that’s a good thing, and I think that it’s probably something that should be done on a national level.  This is, after all, all about people and not about states — and a person is a person, no matter what state they live in.  But if Medicaid is going to continue to be implemented and significantly funded by the states, the overall national structure needs to provide, at minimum, necessary flexibility for states with vastly different budgetary needs and obligations and populations with different health profiles.

That can’t be done from a state legislature, no matter how many great ideas you’ve got.  The future of Medicaid reform is not at the state level.  Liljenquist knows that, and I suspect it’s a big part of what’s informing his future career plans.

Is SCHIP Constitutional?

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Is SCHIP constitutional?  Of course it is.  It’s hard to believe that people are debating this question.  But these days, the words “healthcare” and “constitutional” rarely appear separately, so it probably had to come up sooner or later.

And in Utah, SCHIP’s re-appearance into political discourse was inevitable, as Orrin Hatch, for the first time in a 36-year Senate career, fighting for his political life in a re-election bid.  Orrin Hatch, for those who may not know, co-sponsored the original State Children’s Health Insurance Program (“SCHIP”) legislation with Ted Kennedy in 1997.

Why Do People Claim SCHIP is Unconstitutional?

While I’ve heard a few people make the claim, I’ve yet to hear anyone offer a reason why SCHIP is unconstitutional.  I assume their constitutional objection is is rooted in concerns about federalism, and, if pressed, they might say something like this:  ”The Constitution creates a federal government of enumerated powers, and Article I, Section 8 of the Constitution doesn’t authorize Congress to meddle in healthcare.”

Assuming I’ve accurately pinpointed the ground for their constitutional objection (and I can’t imagine any other), it seems their constitutional analysis has devolved to little more than an overly-simplistic equation:  federal government + healthcare = unconstitutional.  But this ignores both the significant differences in the different kinds of federal healthcare-related legislation as well as the fact that the Constitution grants to Congress other powers in addition to the authority to regulate interstate commerce..

Mandates v. Block Grants

It’s important to remember that the primary (sole?) constitutional objection to Obamacare is the individual mandate; the requirement that individuals purchase qualifying health insurance coverage or be hit with an affirmative penalty.  SCHIP isn’t a mandate program.  Instead, it’s a block grant program that offers matching funds (raised through a tax on tobacco) to states conditioned on states meeting certain requirements, such as expanding Medicaid or establishing a children’s health insurance program.  No state is required to participate.  In fact, Arizona opted out of SCHIP (by killing its state CHIP program) in 2010 — though my understanding is that they are now looking to revive it at some level.

This difference in implementation makes all the difference in the world, constitutionally speaking.

South Dakota v. Dole

The United States Supreme Court, in South Dakota v. Dole — an opinion authored by Chief Justice Rehnquist, who was, perhaps, most noted for his advocacy of judicially enforceable federalism — has made clear that the Spending and General Welfare Clauses of the Constitution, taken together, allow Congress to use federal funds as an incentive for state legislatures to implement policies that might not be able to be implemented directly by Congress:

The breadth of this power was made clear in United States v. Butler, where the Court, resolving a longstanding debate over the scope of the Spending Clause, determined that ”the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.”

Thus, objectives not thought to be within Article I’s “enumerated legislative fields,” may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.

The spending power is of course not unlimited but is instead subject to several general restrictions articulated in our cases. The first of these limitations is derived from the language of the Constitution itself: the exercise of the spending power must be in pursuit of “the general welfare.”  In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress.  Second, we have required that, if Congress desires to condition the States’ receipt of federal funds, it “must do so unambiguously . . enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.”  Third, our cases have suggested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated “to the federal interest in particular national projects or programs” (citations omitted).

SCHIP is an exercise of Congress’ Spending Power.  It’s a program designed to further the general welfare.  There is no ambiguity as to how states become eligible for matching federal funds.  And there is clearly a national interest in ensuring that children have access to healthcare.  In short, it’s beyond doubt that SCHIP is constitutional.

Consequences of Viewing the Constitution as a Political Tool of First Resort

There may be a host of reasons why SCHIP is good policy, or why it is bad policy.  But it is clearly constitutional, and the constitutional objections to it should be put to rest.

Misguided as they may be, the claims of unconstitutionality are nonetheless instructive.  They remind us what happens to our political discourse when we start to treat the Constitution as a political tool of first resort.

Poorly thought out, reflexive claims of unconstitutionality are the consequence of taking seriously the idea that constitutional fidelity is all we need to direct our public policy (see, e.g., Mike Lee).  The Constitution was purposefully written very generally, and can’t possibly provide sufficiently policy direction for even the most limited government.  But once people begin to think that it can, they start, or necessity, filling the policy gaps in the Constitution by elevating their own policy preferences to constitutional status, and we end up with Democrats claiming that every Republican-sponsored law is an unconstitutional assault of our civil rights and Republicans arguing that every Democratically-enacted (note the big “D”) law is an unconstitutional deprivation of individual liberty or violation of the principles of federalism.

To paraphrase Chief Justice Marshall, we need to remember it’s a Constitution that we’re talking about, not a political platform.  A Constitution is an expression of fundamental agreement on a select number of foundational political principles, and was designed to ensure the continual operation of a representative political process.  If we treat the Constitution as a party platform, it becomes a stumbling block to a meaningful discussion of the merits of policy provisions (i.e., I don’t need to have a discussion with you about why this law is good or bad, it’s just unconstitutional), and end up distorting our Constitution into something that it wasn’t meant to be.

The Seventeenth Amendment — Good Idea, or the Beginning of the End?

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When the Constitution was first ratified in 1791, it provided that United States senators were selected by the legislatures of the individual states.  In 1913, the states ratified the 17th Amendment, which required senators to be elected by the people of the several states.

For most of the almost 100 years that have passed since the 17th Amendment was ratified, it has been largely ignored; the business of government has moved on and the amendment has received little comment — especially in comparison to the amendments which bookend it (the 16th Amendment, which authorizes a national income tax; and the 18th Amendment, which constitutionalized Prohibition).

Recently, however, the 17th Amendment has become something of a cause de jour, garnering a good deal of attention from today’s limited government federalists who, confronted by what they view as massive, unconstitutional federal overreach, find in the 17th Amendment a principal villan.

Why don’t they like the 17th Amendment?

Anti-17th-ers believe that the 17th Amendment dealt state sovereignty a death blow.  According to them, the Founders, as a check on national government supremacy, structured the Senate to represent the interests of the states, in contrast to the popularly elected President (well, kind of) and House of Representatives.  But this carefully constructed balance was all undone, they say, by the direct election of senators.  Rather than being the champion of state sovereignty in the national government, as the Founders intended, they argue that the Senate is now little more than House of Representatives-lite, the only difference between the two bodies is the length of term and breadth of constituency.  And the Anti-17th crowd can point to the American historical timeline in support of their claims:  the temporal convergence of the ratification of the 17th Amendment; the ascendency of social welfare legislation; the adoption of the 16th Amendment, which authorized a national income tax; and the expansion of the national government begun during WWI.  They have a point when they say that the states have never been quite the same since.

So, are they right?  Is one of the keys to a meaningful federalism is indirect election of senators?  And have we betrayed our constitutional heritage by adopting the 17th Amendment?

I don’t think so.

17th Amendment = Decline of State Sovereignty?

The concentration of policy and power in the national government is not in any way, shape, or form a result of the elimination of a state check on national authority.  Instead, it’s due to a combination of factors, the most important of which are the superior resources of the federal government, the civil rights movement, the judiciary preferring to take a very hands-off approach to Congressional action, and people demanding national-level policy on a whole host of issues.

To the extent indirect election of Senators and the movement of the center of government toward Washington, D.C., are related, it’s because they are both victims of the 20th Century progressive, internationalist turn in American politics, not because one was a cause (in any meaningful sense) the other.

Inconsistent with Original Intent?

Furthermore, the evidence that the Founders left the election of senators with state legislators in order to protect states from the national government is scant at best, resting essentially on a single statement by George Mason.  The fifth resolution of Madison’s Virginia Plan (which was used to frame the debates at the Constitutional Convention) provided that “members of the second branch of the National Legislature ought to be elected by those of the first, out of a proper number of persons nominated by the individual Legislatures.”

In other words, Madison proposed that that each state’s House delegation choose its senators.  From the beginning, the Founders fixated on indirect election of the Senate, never seriously considering having senators be elected directly by the people.  Why?  Because they assumed that indirect election would result in more virtuous men serving in the Senate (i.e., they distrusted the people) and thought statewide popular elections were impractical.  While the delegates considered other indirect options for choosing senators — including having senators elected by the House or appointed by the President — they rejected them all because they would compromise the principle of separation of powers.  In short, there’s little or not\ evidence that they placed the responsibility to elect senator on state legislatures out of an overriding concern for state sovereignty — there was no just where else to put the responsibility other than the people.

Direct or Indirect?

Are we better off with the 17th Amendment?  Or would we be better off repealing it?

I think we’re better off where we’re at.

I don’t know that indirect election of senators would have many significant policy impacts at the federal level.  Does anyone really believe that the Vermont senate delegation, if elected by the Vermont legislature, would play a watchdog role on the federal government?  Or that the Utah senate delegation, if elected by the Utah state legislature, would come down on states rights any different than it already does?  If the people want national level policy, they’ll get it.  If they want to return power to the states by limiting the federal sphere of action, they’ll get that, too (witness Mike Lee, Rand Paul, et al)

Furthermore, when senators are elected by state legislatures, state legislatures are tied to Congress.  With indirect election of senators, you run the risk of making the position of state legislator at least as much about federal elections as state policymaking.  In addition to campaigning to state legislators, Senate candidates would campaign to the people on behalf of their friends who are either in the state legislature or campaigning for the state legislature.  During at least two election cycles every six years, we would elect state legislators based primarily on who they would support for senator in the next election.

There is also an increased potential for corruption.  Indeed, the fear that state legislatures were “selling” Senate seats is one of the reasons commonly given for adopting the 17th Amendment.  While there is some dispute over the frequency this actually occurred, it was a reason that resonated with the public.  Returning the election to the people eliminates, if nothing else, the appearance of corruption on this basis.

Finally, a Republican form of government is supposed to be about people electing a representative to govern for them, not about a representatives electing other representatives.  The Founders set things up the way they did because they thought the probability of more enlightened representation outweighed moving the government a bit further from the people.  Turns out that it’s pretty clear they were overly optimistic on this point and overly pessimistic on some others.  Indirect election of public officials distances the people from their representatives and erodes confidence in government.

Conclusion

Let’s remember that this government is about people, not states.  We can have (and restore, to the extent it’s been lost) a meaningful federalism in America whether or not Senators are elected directly by the people.

The 17th Amendment was a good amendment to the Constitution and should be left alone.

 

Redistricting in the Courts — Some Thoughts on the Voting Rights Act and Preclearance

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The furor over Utah’s congressional redistricting has, predictably, subsided — most likely for 10 more years — to be renewed only if Democrats actually file that lawsuit Jim Dabakis talked about (unlikely) or with the periodic introduction of legislation calling for an independent redistricting commission.  But although things appear to have settled down here in the Beehive State with respect to redistricting, in other places everything is still very much up in the air.

In certain states, the decennial pilgrimage to the Department of Justice or the courts mandated by the Voting Rights Act has begun.

This issue first caught my eye when I started seeing headlines coming out of Texas this last week that said, “Federal Court Rejects Texas Redistricting Maps,” and “Judges Order Texas Court to Re-Draw Electoral Maps.”  I was surprised, because, although I knew redistricting was a trickier issue in southern states given their history and significant minority populations, I didn’t think that any challenge to redistricting maps really resulted in judge-drawn maps.  Talk about an independent commission . . . .

But it turns out there was more to the Texas case than meets the eye, and there’s a lot of history to it all.  A history that everyone — but me, apparently — may already know. :)

In 1965, Congress passed the Voting Rights Act of 1965 (“VRA”), legislation that enforced the 15th Amendment guarantee that a citizen’s right to vote could not be “denied or abridged . . . on account of race, color, or previous condition of servitude.”  The VRA is enforceable through a section 1983 action, but it also contains requirements designed to ensure enforcement of its provisions in other ways.  The primary enforcement mechanism is the requirement that certain jurisdictions clear — in advance — all changes to “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” with the Department of Justice of a three-judge panel of the the United States District Court for the District of Columbia.   Redistricting is considered to be such a change, and the process of getting approval for redistricting changes is known as “preclearance.”.

Which jurisdictions are subject to the preclearance provision of the VRA?  Any voting jurisdiction in which less than 50 percent of age-eligible voters voted in the 1964 presidential election, which includes all of the states of Alaska, Arizona, Texas, Louisiana, Mississippi, Alabama, Georgia, and South Carolina, together with certain counties/townships in Virginia (most of the state), North Carolina, New Hampshire, South Dakota, California, New York, and Florida.  Here’s a map:

If you think redistricting is a headache in Utah, just imagine it in one of these jurisdictions.

Take the recent Texas case, for example.  The Republican-controlled Texas legislature passed a redistricting map, which they then submitted for “fast-tracked” preclearance by a three-judge panel of the D.C. District Court (they didn’t go the DOJ route because they were worried they wouldn’t have enough time).  Instead of signing off on their proposal, the court declined.  Then, because the 2012 election is fast approaching, the D.C. District Court instructed the United States District Court for the Western District of Texas to draw boundaries that would govern the 2012 election, and the final boundaries will have to be taken up again by the Texas state legislature another time.

What was the ground for the D.C. District Court’s decision?  Because the court determined that the Texas legislature, in drawing its electoral maps, used an “improper standard or methodology to determine which districts afford minority voters the ability to elect their preferred candidates of choice.”

Now, if a state legislature racially gerrymanders, their maps can be challenged in court without the preclearance provisions of the VRA.  And it doesn’t appear that racial gerrymandering was going on here.  Instead, it looks like it was just your normal, garden-variety political gerrymandering.  But Texas Democrats used the VRA as a tool to wage a limited fight against maps that otherwise would likely have been immune from challenge (and that certainly would have gone into effect while the challenge was pending).  And for their efforts, the Texas Democrats got a gift, courtesy of the VRA, because it looks like the judge-drawn maps are going to be more favorable to them than the original legislatively-enacted versions.

Now readers of this blog know that I don’t like gerrymandering, even the normal political variety.  Our legislators, and legislators of other states, can and should do better than they’ve done.  But the VRA was not enacted to prevent one political party from gerrymandering a bit to consolidate its power.  Frustrating as it may be, our laws allow this type of gerrymandering.  The VRA was designed to ensure that racist, segregationist legislatures did not redistrict away minority voices.  The preclearance requirement kept every one in line.  But it’s served its purpose.  In 2011, it makes absolutely no sense to punish certain jurisdictions when they redistrict for 2021 based on voting rates in 1964.  It needs to go.

By the way, did you know the VRA was renewed in 2006, by President Bush and a Republican Congress?  For 25 more years?  C’mon guys, this one seems like it should be easy!  But then again, apparently nothing ever is . . . .

 

Jon Huntsman – A Case of Style Obscuring the Substance?

John Huntsman Announces Bid For Presidency At NJ's Liberty State Park

Thus far, in the continual carousel of GOP frontrunners, we’ve had Michelle Bachmann, Rick Perry, Herman Cain, Newt Gingrich, and, of course, the fixture, Mitt Romney.  Tim Pawlenty ran out of money and dropped out too early to have his day in the sun, Ron Paul is the guy a few people love and the rest of us like from a distance, and Rick Santorum has fallen victim to “fighting the last second-to-last war” syndrome — everything out of his mouth seems tailor made for 2004.

But what about Jon Huntsman?  When is it his turn as King of the Mountain?  Indeed, a Chicago Tribune article came out last week asking this very question:  ”Why Not Jon Huntsman?”  Here’s a guy with a great domestic governing record, consistent fiscal conservative credentials, no health care reform baggage (he was a market solutions guy in Utah), and the only significant foreign policy experience of *any* GOP candidate or wannabe candidate (Christie, Ryan, Daniels, Jindal, and Barbour included).  So what’s taking so long for the GOP to embrace him?

Well, he did have that moment on climate change.  And he supports civil unions for same-sex couples.  Oh, and there was that bit about being Obama’s ambassador to China.  These are the conventional reasons people disqualify him.  But I don’t buy any of them.  I mean, remember, Rick Perry mandates vaccines and opposes “heartless” immigration policy, Newt wants to send your children to work as janitors, Mitt passed Obamacare lite in Massachusetts — and they’ve all been embraced by voters for a time.  Indeed, Huntsman’s break with the orthodoxy are really pretty minor.

No, there’s something more at play here, and I read an article a few days ago that I think hits it right on the head:  ”Huntsman:  The Candidate Killed by Style.”  Here’s a quote:

Huntsman seems to muster more animosity toward his fellow candidates than Obama, making him seem like an outsider to many conservatives.   But again, chastising Rick Perry and Mitt Romney for bickering, is not an issue of substance…it is an issue of style.

But let me be clear about this…Jon Huntsman has contributed to the stylistic cross upon which his campaign has been crucified.  From his overly thought out “H” logo…to his hipster motorcycle ads…to his snarky jokes on the debate stage…to his daughters’ SNL-style spoof of Herman Cain’s smoking ad…Jon Huntsman is playing the presidential version of a mean girl.  Everything is calculated for effect.  Everything filtered through “cool”.  And it comes off as condescending.

Some, like my friend SE Cupp, would say that Huntsman stands to the left of the Republican Party on many big issues such as civil unions and foreign policy. And I would say, first that there is a great debate taking place on the right about both of these issues. But…I truthfully don’t think many conservative voters have judged the merits of Jon Huntsman’s positions.  I think they see a condescending man who worked for Obama and immediately dismiss him. And in a way, I don’t blame them.

The lesson for Huntsman, though, is…don’t do this.  The lesson for conservative voters is, in the words of Barry Goldwater (yes, again), “to disagree, one doesn’t have to be disagreeable.”  We should judge these candidates on their substance, not their style, because in the words of Jon Huntsman: voters “should not confuse a moderate temperament with a moderate record.”

Is Jon Huntsman’s problem that he goes around acting like he thinks knows he’s better than everyone he’s running against?  And when I say “better,” I don’t mean the typical “I’m the guy you need to do the job — not him” type of better.  I’m talking about the “you’re stupid and I’m not” type of better.  I think this is definitely part of it.

But I believe there’s even more to it than this.  After all, Huntsman didn’t start out his campaign attacking every other conservative in sight.  In fact, ironically, he started out with a pledge of civility.  He went into attack mode because he couldn’t get any traction.

No, Jon Huntsman, despite being a solid conservative, often acts a bit like the liberal elite that conservatives distrust.  Everything about him says “intellectual”–and more the Obama type of intellectual than the Gingrich type of intellectual.  And when you combine that with the fact that, during his campaign, Huntsman has run around like he’s trying to save the Republican Party from itself — you don’t have to stretch far to see why conservative primary voters may have been reluctant to embrace him.

No matter what his record, Jon Huntsman just doesn’t seem like a conservative to many of the voters that matter.  And I worry that until he adjusts his style a little bit that reality may not change, which will be too bad for those Republicans, like me, who really like the guy and honestly believe the Republican Party needs a bit of a course correction.

I, for one, am still hoping that Huntsman gets his chance.  Because I think Republicans who take a hard look at him will really like what they see.

For example, take a listen to this:

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Two Cheers for Law School — Theory v. Practice, Personal Experience, and Some Other Random Thoughts

It’s not unusual to see a major newspaper article discussing the many failings of law schools.  They appear every couple months or so.  These days, most of what you read is about how law schools manipulate salary and rankings data to encourage students to enroll and take on the massive debt necessary to graduate.  And what’s the reward at the end of 3 years?  You’ve got an awfully lot of heavily indebted people working 20 hours per week as contract attorneys paid $25 – $30/hour.  We get it, it’s a racket.  Poor Loyola2L.

But yesterday, the New York Times ran an article with a little bit of a different take on the law school experience, which got me thinking again about some things that occasionally cross my mind — though usually not for long (I’ve given myself way too much to do).  The article was titled, “What They Don’t Teach Law Students:  Lawyering.”  Here’s a quote that captures the essence of the article:

“Law school has a kind of intellectual inferiority complex, and it’s built into the idea of law school itself,” says W. Bradley Wendel of the Cornell University Law School, a professor who has written about landing a law school teaching job. “People who teach at law school are part of a profession and part of a university. So we’re always worried that other parts of the academy are going to look down on us and say: ‘You’re just a trade school, like those schools that advertise on late-night TV. You don’t write dissertations. You don’t write articles that nobody reads.’ And the response of law school professors is to say: ‘That’s not true. We do all of that. We’re scholars, just like you.’ ”

This trade-school anxiety can be traced back to the mid-19th century, when legal training was mostly technical and often taught in rented rooms that were unattached to institutions of higher education.

A lawyer named Christopher Langdell changed that when he was appointed dean of the Harvard Law School in 1870 and began to rebrand legal education. Mr. Langdell introduced “case method,” which is the short answer to the question “What does law school teach you if not how to be a lawyer?” This approach cultivates a student’s capacity to reason and all but ignores the particulars of practice. Consider, for instance, Contracts, a first-year staple. It is one of many that originated in the Langdell era and endures today. In it, students will typically encounter such classics as Hadley v. Baxendale, an 1854 dispute about financial damages caused by the late delivery of a crankshaft to a British miller.

. . .

Defenders of the status quo say that law school is the wrong place to teach legal practice because law is divided into countless niches and that mastering any of them can take years. This sort of instruction, they say, can be taught only in the context of an apprenticeship. And if newcomers in medicine, finance and other fields are trained, in large part, by their employers, why shouldn’t the same be true in law? (emphasis added)

I want to take a minute and explain to you why, despite its many faults, I still give at least two cheers for law school.

My Personal Journey to and Through Law School

There are two types of students who enter law school.  Those who have wanted to be lawyers all their life, and those who kind of just fall into it because they don’t know what else to do with their life.  I’m a proud member of the second group.

I have no other lawyers in my family.  Prior to enrolling in law school, I had never encoutered the legal system, even in the most indirect way.  I think I’d received one traffic ticket, for doing 8 miles over (going downhill) in northern Montana.  I’d never encountered the world of pop culture law via the legal drama (outside of watching old Perry Mason re-runs with my parents).

I made the decision to enter law school on a whim in November 2004, three weeks before the last qualifying LSAT test on a night I happened to be particularly disenchanted with my life as a doctoral student studying Political Geography at the University of Iowa.  At the time, I had two reasons for choosing law school over a Ph.D in political science (my second contemplated career alternative):  (1) no dissertation was required to obtain a doctoral degree from a law school; and (2) my LDS Bishop, who I greatly admired, was a Dean at the University of Iowa Law School.  As time went on, I manufactured more (as so many of us do).

Seven years later, here I am — a profoundly different person and mostly happy for my ill-considered choice.

I came out of law school thinking differently than I did when I went in.  I learned to appreciate the significance of fine distinctions.  I respond much more favorably to some technical arguments, because I realize that there can be substance behind those technicalities.  I also learned to reject technical arguments when they’re rooted in nothing more than technicalities.  I’m more cautious about what I say and how I say it.  I write more clearly and speak more persuasively (at least I think I do).  I have an insider’s understanding about a legal system that is so terrifying to so many.  And I really can help people through difficult times.

But I’ll also admit that it hasn’t been all good.  I’m much more cynical than I used to be.  Always at bit pessimistic by nature, I’ve become even more so.  I’m more critical of positions and can be downright dismissive of what I see as poorly articulated arguments.  I still don’t know when to use “who” and when to use “whom.”  I sometimes think in legalese.  I often feel I have little in common with people who are not lawyers.  Some days it seems like I’m constantly tempted to point out faults and tear people down.  And I can persuasively rationalize being used as a tool by someone who I think isn’t on the right side of a fight.

All this to say that law school is every bit the transformative experience it’s made out to be.  Or, it certainly was in my case.  It’s a transformation that I’m not sure you would completely undergo if you just jumped right into a legal apprenticeship and started to practice law.

Teaching Students to Think Like Lawyers Should

In other words, I’m one that thinks there really is something to this “law school is to teach you to think like a lawyer” stuff.  Or, maybe I should rephrase it.  Perhaps law school is about learning to think like a lawyer should.

When you strip away everything else, the question this New York Times article raises is whether there’s really a place for law school at all.  If budding attorneys can’t effectively be taught to practice law while in law school, do they really need a mandatory three years of school to be taught how to reason a certain way?

Well, maybe not three years; perhaps just two.  And a bit more practical instruction probably wouldn’t hurt.  Law school CSOs could *definitely* be more helpful in helping students find meaningful employment.  Law firms could improve the whole process by making hiring decisions on more than first semester grades.  Maybe law reviews could actually publish articles that are helpful to members of the bar.  And occasionally law schools might, with subtlety, suggest that these days it’s statutes and regulations, and not case law, that, by and large, rules the legal world.

But all these legitimate complaints aside, I still give a hearty two cheers for law school.  People need advice from attorneys who can relate to them but who have a perspective and view that makes it so they don’t think like them.  The law itself needs attorneys who think and care deeply about the direction it’s moving, independent of the particular case(s) at hand.  Having attorneys with perspective on how the law’s treatment of legal problems has evolved over the past 200, 500, or even 1,000, years gives depth to the law and helps attorneys understand the significance of even the most individualized and unique case.  Those years spent in law school should be about more than just learning how to draft a complaint, write discovery requests, and conduct an intake interview.  Law school should be more than a trade school; it should be about preparing young attorneys with the tools to make their practice about more than just the money and endless drudgery, but also about making the law and the legal system better.

It’s significant to note that, 150 years ago, before the ascension of law schools, the American legal landscape was ruled by the common law, which was then largely a collection of hyper-technical requirements and “gotcha” procedural rules, the knowledge of which was passed down from master to apprentice practitioners.  That’s not where we are anymore.  And I can’t help but think that theoretical law school education played just a little part in the direction we’ve gone.  I’ll cheer for that.