Bill Summaries

H.B. 351, Opt-Out of Order on White House Rural Council — Rep. Ivory

February 28, 2012 by Curt Bentley 2 Comments

After a long, work-induced hiatus from blogging, Utah Political Summary returns today with some brief commentary on H.B. 351, a bill sponsored by Representative Ken Ivory.

H.B. 351 is part of our legislature’s ongoing effort to step federal government meddling in local government by preemptive state meddling in local government. Specifically, it’s a response to Executive Order 13575 (“EO13575″), which was issued by President Obama last June and creates a White House Rural Council (“WHRC”) to “enhance Federal engagement with rural communities.”

EO13575

The WHRC would be chaired by a representative of the Department of Agriculture, comprised of a representative of every other federal department, and tasked with the mission of “coordinat[ing] development of policy recommendations to promote economic prosperity and quality of life in rural America,” and “coordinate[ing] [the Obama] Administration’s engagement with rural communities.”

Specifically, the WHRC will:

Make recommendations to President Obama on how to streamline and leverage the impact of federal investment dollars in rural communities;
Coordinate and increase the effectiveness of federal engagement with rural America’s stakeholders; and
Identify and facilitate rural energy development, outdoor recreation and conservation-related opportunities.

On its face, EO13575 appears to be nothing more than an attempt to coordinate efforts across departments, to make the administration’s “rural policy” more cohesive and effective.

But it’s got Representative Ivory up in arms. In fact, he refers to it on his Facebook page as an order creating “White House zoning and planning authority over all ‘rural America.’” So he’s crafted H.B. 351 — a legislative response consistent with his apparent alarm.

H.B. 351

Representative Ivory’s bill, which was passed out of committee on February 27, 2012, would require any “department or agency of the state” that wants to implement a “directive” of the White House Rural Council created by EO13575, to file a report to the legislature’s Natural Resources, Agriculture, and Environment Interim Committee containing the following information:

(3) (a) The report required under Subsection (1)(a) shall include:

(i) the directive from the White House Rural Council; and

(ii) a description of:

(A) the requirements imposed by the directive and how the agency would implement the directive;

(B) the effect of implementing or not implementing the directive;

(C) the cost to the state or its citizens of implementing the directive; and

(D) the consequences to the state if the state does not comply with the directive.

(b) The report required under Subsection (1) may include an analysis by the agency or department that addresses whether a directive from the White House Rural Council:

(i) affects the distribution of power and responsibility among the state and national government;

(ii) limits the policymaking discretion of the state;

(iii) impacts a power or a right reserved to the state or its citizens by the Ninth or Tenth Amendment to the United States Constitution; or

(iv) impacts the sovereignty rights and interest of the state or a political subdivision to provide for the health, safety, and welfare of, and to promote the prosperity of, the state’s or the political subdivision’s citizens.

The required report is designed to give the legislature an opportunity to legislate in opposition to the “directive,” if it so chooses. In fact, after receiving the report from the “department or agency of the state,” the Natural Resources, Agriculture, and Environment Interim Committee can recommend to the legislature that it enact legislation that either specifically authorizes or prohibits compliance with the “directive.”

The supreme irony in the whole situation? Representative Ivory’s bill would be codified at Utah Code Ann. 63M-1-1607 et seq., as part of Utah’s already existing Rural Development Program, which is operated out of the Governor’s Office of Economic Development through the Office of Rural Development, which in conjunction with the Rural Coordinating Committee, provides support to the Governor’s Rural Partnership Board.

And the mission of the state’s Rural Development Program? Here’s a bulleted list:

Facilitate within the Governor’s Office of Economic Development implementation of the strategic plan;
Work to enhance the capacity of the Governor’s Office of Economic Development to address rural economic development, planning, and leadership training challenges and opportunities by establishing partnerships and positive working relationships with appropriate public and private sector entities, individuals, and institutions;
Work with the Rural Coordinating Committee to coordinate and focus available resources in ways that address the economic development, planning, and leadership training challenges and priorities in rural Utah; and
Coordinate relations between the state, rural governments, public/private groups engaged in rural economic planning and development, and federal agencies.

Some Thoughts

I think it’s pretty clear that Representative Ivory sees the White House Rural Council as another front on the war over western state lands. Perhaps it is. I don’t know. But there’s nothing in EO13575 or the duties set out for the WHRC authorizing it to make “directives” to local governments, and certainly nothing in it that authorizes it to engage in nationwide zoning.

President Obama, like other Presidents before him, undoubtedly has a “plan” for rural America, and will go about implementing his “plan” in whatever way he can, including, presumably, by conditioning the receipt of federal funds on local governments implementing plan objectives. But it’s questionable whether such “incentives” can fairly be characterized as “directives.” Thus, to have any effect, it appears that Representative Ivory’s bill would require all “departments or agencies of the state,” any time they want to implement a suggestion or recommendation originating from the WHRC, to first create a burdensome report for the state legislature. This is turf-war level of micromanagement that would do the most overreaching federal agency proud.

Now, Representative Ivory may believe that the Constitution grants the state exclusive authority to make recommendations to local governments and rural America. After all, Article II of the Constitution is pretty sparse . . . . But at some point, he, and the other members of the Utah GOP’s club of constitutional crusaders need to contemplate the extent to which their near myopic obsession over their own version of constitutional federalism is turning them is seriously undermining their core conservative governing principles.

If President Obama issues an order emanating from the WHRC that unconstitutionally dictates to rural Utahns what they may or may not do, then legislate against it or fight it in court as appropriate. But why borrow trouble and micromanage just out of antipathy toward one particular administration? President Obama will eventually leave office, the WHRC he created will be dissolved, and a Republican will be elected President again . . . but legislation persists. H.B. 351 is unnecessary, misguided, and not worth our legislature’s time.

Filed Under: Bill Summaries, Law, News, Opinion, Slider Tagged With: 2012 legislative session, barack obama, constitution, federalism, ken ivory, law, utah, utah legislature, white house rural council

Open Political Caucuses – Comparing the Powell and Romero Bills

January 30, 2012 by Curt Bentley Leave a Comment

The fallout of H.B. 477 continues up at the Utah legislature, with two bills this session — one from each side of the aisle — that would require parties to make their caucuses open to the public in certain circumstances.

One bill, H.B. 89, is proposed by Representative Kraig Powell, who promised to make this a focus of his efforts after publicly back-tracking in his original support of H.B. 477. The other bill, S.B. 45, is being sponsored by Democratic Senator Ross Romero, currently a candidate for Salt Lake County Mayor.

I thought I’d take a couple minutes and compare the two bills, to see what the differences are.

H.B. 89 – Representative Powell

H.B. 89 is by far the simpler bill, providing simply that wherever a quorum of a “public body” is present at a meeting of a “political party, political group, or political caucus” where “legislative action” is being discussed, that meeting must be open to the public, though attendance can be regulated.

Here’s the actual text:

52-4-211. Political caucus open to public — Conditions.

(1) A political party, political group, or political caucus is not subject to the provisions of this chapter except as provided in Subsection (2).

(2)(a) If a quorum of a public body is present at an assembly of a political party, political group, or political caucus, any discussion by the political party, political group, or political caucus of legislative action by the public body, whether the legislative action is pending, proposed, potential, or previously-passed, is open to the public.

(b) A political party, political group, or political caucus may regulate or limit attendance at a discussion described in Subsection (2)(a) if reasonable access to the discussion by the public is preserved.

A “public body” is defined in Utah Code Ann. § 52-4-103 as follows:

(8) (a) “Public body” means any administrative, advisory, executive, or legislative body of the state or its political subdivisions that:
(i) is created by the Utah Constitution, statute, rule, ordinance, or resolution;
(ii) consists of two or more persons;
(iii) expends, disburses, or is supported in whole or in part by tax revenue; and
(iv) is vested with the authority to make decisions regarding the public’s business.

(b) “Public body” does not include a:
(i) political party, political group, or political caucus; or
(ii) conference committee, rules committee, or sifting committee of the Legislature.

A “quorum” is defined as “a simple majority of the membership of a public body,” though it “does not include a meeting of two elected officials by themselves when no action, either formal or informal, is taken on a subject over which these elected officials have advisory power.”

None of the other key terms in H.B. 89 are defined, but they are more self-explanatory. The practical effect of the bill would seem to be almost exclusively limited to state legislative party caucuses because, although a non-partisan legislative body like a city council might qualify as a “public body,” in order to be subject to the provisions of this chapter, a majority of the members of the city council would have to assemble at a meeting of a political party, political group, or political caucus, where a legislative action (past, current, or future) was being discussed. This seems unlikely, although it’s possible to imagine a scenario where, say, a (quorum) a simple majority of Salt Lake City council members decide to attend a Democratic or Republican Party meeting where the legislation efforts of the council would be discussed — if that happened, it seems that H.B. 89 would require that meeting to be open to the public.

S.B. 45 – Senator Ross Romero

Senator Romero’s bill is much more detailed that Representative Powell’s and reads as follows:

52-4-211. Meetings of legislative political caucuses.

(1) As used in this section:

(a) “Legislative party leadership” means:

(i) the speaker of the House of Representatives;
(ii) the president of the Senate;
(iii) the leader, whip, assistant whip, or manager of a legislative political caucus; or
(iv) the chair or vice chair of the Executive Appropriations Committee, the Senate Rules Committee, or the House Rules Committee.

(b) (i) “Legislative political caucus” means an assembly of legislators:

(A) to which belong a majority of legislators from the same registered political party in a chamber of the Legislature;
(B) called to assemble by a person authorized by the caucus to do so for the purpose of discussing policy, legislation, strategy, plans, or registered political party business; and
(C) on a day that the Legislature is conducting the annual general session, a veto-override session, or a special session.

(ii) “Legislative political caucus” does not mean:

(A) an assembly of legislators who are an informal or unofficial subgroup of a registered political party;
(B) an assembly of legislators who meet because the legislators share a particular political philosophy distinguishable from the legislative political caucus; or
(C) a meeting only attended by two or more legislative party leadership.

(c) “Registered political party” is as defined in Section 20A-8-101 .

(2) (a) A legislative political caucus is not required to comply with the provisions of this chapter except as provided in this section.

(b) A legislative political caucus shall be open to the public except in the circumstances described in Subsection (3).

(3) A legislative political caucus is not required to be open to the public during the portion of the caucus during which business is conducted relating to:

(a) a purpose described in Subsection 52-4-205 (1); or
(b) caucus or legislative party leadership elections.

Senator Romero’s bill would seem to open all official party legislative caucuses to the public that (1) are called by party leadership, (2) during the legislative session, (3) for the purpose of discussing legislation, plans, or strategy. In that sense it is broader than H.B. 89, which would apply only to caucuses where a (1) a quorum was present, and (2) were held for discussions of legislative action. As currently drafted, S.B. 45 would also be more narrow that H.B. 89 in that it would only apply to assemblies of “legislators” and would only operate when the legislature is in session.

However, all these distinctions may be more apparent than real, as it is unlikely that Representative Powell’s bill would have much (if any) application outside of the the legislative session, and Senator Romero’s bill contains a number of exceptions designed to allow the caucuses to be closed in specific situations (such as party leadership elections and the other many situations identified in Utah Code Ann. 52-4-205(1)) and to exempt specific groups, such as the Patrick Henry Caucus, for example, from the open caucus requirement.

Overall, the bills are similar enough in their effect, that’s it’s probably a wash between the two. The more interesting fight will take place between those who will argue that it’s an impermissible limitation on the freedom of association to mandate closed caucuses at all. I’ll be posting on that a bit later, if I can find the time.

Filed Under: Bill Summaries, Law, News, Slider Tagged With: 2012 legislative session, closed caucuses, first amendment, freedom of association, hb477, hb89, public meeting, rep. kraig powell, sb45, senator ross romero, utah legislature

S.B. 11, S.B. 21: Department of Environmental Quality Amendments, Sen. Dayton

January 26, 2012 by Curt Bentley Leave a Comment

After sending out my first tweet soliciting requests for legislation to analyze, I got this response from @UtahTeacher:

@curtbentley Request:SB 11. Must meet strict def. of standing, prsnl injury, etc or no environmental lawsuits? Who can sue? Drastic change?

January 24, 2012 9:54 pm via webReply RetweetFavorite

@UtahTeacher

UtahTeacher

As I looked over S.B. 11, I realized that it was a close companion of the much longer (~6,000 lines!) S.B. 21. So, I decided to analyze them together. Here goes! (By the way, if anyone has another piece of proposed legislation they’d like analyzed from a legal perspective, let me know on twitter @curtbentley, or by email.)

Both S.B. 11 and S.B. 21 are proposed by Senator Margaret Dayton, and are the two component parts of an effort to redefine the responsibilities of the boards that currently oversee divisions of the Utah Department of Environmental Quality (“DEQ”). S.B. 21 redefines the responsibilities of boards, primarily limiting them and giving more responsibilities to division directors appointed by the DEQ director, while S.B. 11 creates a specific process for challenging DEQ permit decisions that’s placed exclusively in the hands of the division directors and administrative law judges, rather than the boards themselves.

Although @UtahTeacher was clearly concerned about the effect that these bills might have on the right to bring environmental-related lawsuits, I could find nothing in the bills that either limited standing to the traditional test (personal injury in fact, causation, redressable) or in any way effected the existing rights of individuals or organizations to bring an environmental challenge in court. Rather, these bills seem exclusively focused on redefining administrative responsibilities — which may also be very significant, though I’ll be frank and admit that I lack to background to make much of an intelligent assessment.

With that brief introduction out of the way, I’ll dive right in. Advance warning — this isn’t the most exciting stuff in the world

S.B. 21: Department of Environmental Quality Board Revisions

S.B. 21 would directly affect the following divisions within the DEQ: (1) the Division of Air Quality, (2) the Division of Radiation Control, (3) the Division of Drinking Water, (4) the Division of Water Quality, and (5) the Division of Solid and Hazardous Waste.

Currently, each of the above divisions is governed primarily by a board, comprising anywhere from 11 (air quality, drinking water, and water quality) to 13 (radiation control, and solid and hazardous waste) members. The members of each board are currently appointed by the governor and confirmed by the senate.

So far as I can tell, current law requires (for each of the above boards) that:

No more than 5 members of the board belong to the same political party (a bit hard to see how this happens when the boards all currently have 11 or 13 members);
A majority of the board members cannot derive a significant part of their income from individuals or businesses subject to permits issued by the board they serve upon; and
That board members disclose any potential conflicts of interest.

Currently, the law assigns to the boards themselves substantially responsibility for administering the various divisions. For example, the boards themselves are responsible for:

Setting environmental standards germane to the subject matter of their board;
Holding hearings and making decisions on dispositive motions;
Preparing and developing comprehensive plan;
Accepting, receiving, and administering grants;
Enter into contracts on behalf of the division with third parties; and
Much more.

Under current law, the various board are assisted in their responsibilities by an executive secretary for each division, who is appointed by the executive director of the DEQ, but is subject to approval by the various boards themselves.

S.B. 21 makes some significant changes to the administrative structure. First, board members would be nominated by the executive director of the DEQ, and subsequently appointed by the governor and confirmed by the senate (whereas now they are simply directly appointed by the governor and confirmed by the senate). Second, the number of board members would be reduced to 9 in each case (I assume to make realistic the idea that only 5 members of the board can be from the same political party; also perhaps for cost savings). Third, the boards’ authority and responsibilities would be significantly reduced in a number of ways. Here are some examples:

Under S.B. 21, the boards’ authority to hold hearings would be limited to non-adjudicative hearings only (i.e., not hearings in any case where a decision will be made affecting a person’s rights);
Under S.B. 21, the boards would no longer be allowed to directly contract with third parties to provide services to the board’s division;
Under S.B. 21, the boards would no longer be tasked with preparing comprehensive plans or implementing such a plan.

In short, under S.B. 21, most of the duties previously assigned to the board are now assigned to division “directors,” which are appointed by the executive director of DEQ without any input from the board, and the boards would be little more than rulemaking and standard-developing bodies. It seems very much like a legislative/executive division of power within an executive department. I should note, however, that S.B. 21 would specifically assign to the boards one new duty: the responsibility and authority to review any settlement entered into by a division director exceeding $25,000 — we can only assume this is designed to avoid another UDOT-gate like we saw back in 2010 (though this law obviously doesn’t apply to UDOT).

S.B. 11 is the second component to the wide-scale reorganization proposed by Senator Dayton, so I’ll turn to it now.

S.B. 11: Department of Environmental Quality Adjudicative Proceedings

Currently, the boards of the various divisions within DEQ respond directly to all “requests for agency action.” (i.e., public requests to approve permits or take other actions). S.B. 11, consistent with S.B. 21, would remove that responsibility from the board and assign it to the division directors in almost all cases. Specifically, the board would no longer make decisions on requests for agency action to approve, renew, deny, modify, or revoke a permit, plan, license, approval order, or administrative authorization — this category of cases is referred to in the proposed bill as “permit review proceedings.”

Although I readily acknowledge a near total lack of expertise in this area, “permit review proceedings” seem to pretty much cover the whole ground of adjudicative actions taken by each division. In other words, S.B. 11 would seem to effect a near total transfer of adjudicative responsibilities from the board to the division director. And this would be consistent with S.B. 21, which seems to basically limit the board’s authority to hold hearings to non-adjudicative (i.e., informational/rulemaking) cases. There are two caveats to this transfer. First, it does appear that, under S.B. 11, the boards’ adjudicative authority would remain intact for requests for agency action not involving a “permit review proceeding” . . . but again, there just doesn’t seem to be much there aside left after that carveout except petition for rulemaking and new standards. Second, the board has the authority (and obligation) to approve of disprove any settlement negotiated by the division director that exceeds $25,000.

Finally, it’s worth noting that S.B. 11 would create some unique standards for administrative review of permit proceedings, including strictly limiting who could appear before the agency in such a proceedings (only the person seeking a permit review decision, the person directly affected by the permit review decision, and a person specifically authorized by the agency to intervene) as well as what issues could be raised in a permit review proceeding (only those issues reflected in the record and properly preserved in proceedings below). It would also give jurisdiction over appeals from permit review proceedings directly to the court of appeals. But, significant as those changes are, they’re not the focus of the bill (at least in my opinion). And again, from what I can tell, they do nothing to affect the existing ability of parties to directly bring judicial actions related to environmental concerns in district court.

Conclusion

I don’t really know what to say about S.B. 21 and S.B. 11 aside from tell you what they appear to do. I don’t have enough experience in administrative law to say whether transferring authority and responsibilities away from boards is a good thing or not. But it does appear to be a significant change and, for that reason, should get some careful consideration.

Filed Under: Bill Summaries, Law, News Tagged With: 2012 legislative session, administrative law, board, director, margaret dayton, sb11, sb21, utah department of environmental quality, utah legislature

H.B. 253 — Voter Registration Amendments, Rep. Powell

January 24, 2012 by Curt Bentley Leave a Comment

Remember Representative Kraig Powell?

He made headlines last spring for his very public and deeply emotional change of position on H.B. 477 and his commitment to work for transparency in the future. This year — at least according to the Utah legislature’s website — he’s poised to make good on that promise, having opened up a number of bill files dealing with legislative transparency:

But at least one of his initial efforts in this young legislative session deserves some more scrutiny. H.B. 253, which Rep. Powell introduced in committee yesterday, would require county clerks to remove the names of voters from the county’s registration rolls in each of the following circumstances:

The voter dies and his or her name is listed on the annual report of deceased residents from the Department of Health’s Bureau of Vital Records;
A voter sends written confirmation to the county clerk that he or she no longer resides in the county;
The voter requests, in writing, that the county clerk remove his or her name from the county’s registration rolls;
The county clerk receives a notice that the voter has registered to vote in another state;
The county clerk receives a notice that the voter has been convicted of (1) a felony in any state or federal court, or (2) an election-related misdemeanor (e.g., fraudulent voter registration) and determines that the voter’s right to vote has not been restored by applicable law; and
After a voter has failed to respond to a written notice from the county clerk (sent to the address on his or her registration records), the voter fails to vote in the next 2 general elections.

Current law allows, but does not require, a county clerk to remove a voter’s name from the registration rolls for any of the first five reasons. H.B. 253 would make it mandatory, which is in itself a significant change. But the real meat of H.B. 253 is in the addition of the sixth basis for name removal. And it seems poised to send a lot of flak Rep. Powell’s way.

Here’s how the sixth basis would operate. H.B. 253 would require county clerks to send a notice to each person who fails to vote in two consecutive general elections, which are held once every two years. So, for example, if I failed to vote in 2010 and 2012, the Davis County clerk’s office would be required, by law, to send me a notice informing me that my registration will be revoked if I do not respond to the notice or actually vote in one of the next two general elections. Then, if I both (1) failed to respond to the notice, and (2) failed to vote in either of the subsequent two general elections (2014 and 2016), my registration would be automatically revoked.

Shortly after the legislative session closed yesterday, an article appeared in the Salt Lake Tribune in which an attorney for the ACLU was quoted as suggesting that H.B. 253 was illegal because it ran contrary to controlling federal law. Defenders of the bill responded, arguing that, not only is H.B. 253 consistent with federal law, but it was a good idea because: (1) the threat of being removed from the voter registration rolls will make people more likely to vote; (2) it makes voter fraud more difficult by removing the excess names from the state’s voter registration rolls; and (3) it will make Utah’s voting statistics more accurate, thus presumably making us look better to outsiders.

I wanted to take a couple minutes to respond to each of the arguments noted above and to offer a few of my own thoughts.

Federal Law

Although the Tribune’s article cites an attorney for the ACLU contending that H.B. 253 would violate the “National Voting Rights Act,” I believe she was actually referring to the National Voter Registration Act of 1993 (the “NVRA,” aka the “motor voter bill”). While there is a “Voting Rights Act,” I don’t believe there is a “National Voting Rights Act” — it all seems like understandable acronym confusion.

Contrary to the assertion of the ACLU’s attorney, my research suggests that applicable federal law (i.e., the NVRA) specifically allows for the removal of voters from the state’s registration rolls as contemplated by H.B. 253 (though I acknowledge my lack of expertise and the fact that it’s entirely possible I could be proven wrong). Here’s the applicable section from the NVRA, codified at 42 U.S.C. 1973gg-6:

(b) Confirmation of voter registration

Any state program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office -

(1) shall by uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965 (42 U.S.C. 1973 et seq.); and

(2) shall not result in the removal of the name of any person from the official list of voter registered to vote in an election for Federal office by reason of the person’s failure to vote, except that nothing in this paragraph may be construed to a State from using the procedures described in subsections (c) and (d) to remove an individual from the official list of eligible voters if the individual -

(A) has not either notified the applicable registrar (in person or in writing) or responded during the period described in subparagraph (b) to the notice sent by the applicable registrar; and then

(B) has not voter or appeared to vote in 2 or more consecutive general elections for Federal office.

Based on this language, it appears to me that if H.B. 253 is nondiscriminatory (i.e. generally applicable), it is consistent with federal law.

Justifications — Encouragement, Fraud, and Our Image, Elevated

Rep. Powell suggested yesterday in committee that receipt of a notice threatening to revoke registration would actually prompt more people to vote. Although it’s an interesting argument, he offered no evidence in support of his contention. Furthermore, even assuming, arguendo, that his assertion is true, it strikes me that someone just voting once everyone 4 – 8 years to preserve their registration isn’t really the type of participation that we want to encourage. And the idea that our elected officials believe that a legitimate way of getting people to vote is threatening to revoke their registration is, frankly, a bit concerning.

Representative Powell also contended that removing non-voters would make it more difficult for people to commit voter fraud. This is certainly the case for people who have died (who can already be removed under the current version of Utah’s law), but it’s hard to see how simply sending a notice to habitual non-voters would accomplish this objective.

Finally, the most ridiculous justification from Rep. Powell for H.B. 253 was that leaving the names of non-voters on the state’s rolls makes us look bad because it makes our percentage voting statistics seem lower than they actually are. This may be true, but it’s ridiculous to suggest that burnishing our public image in this respect is worth the very real possibility that some of Utah’s previously unengaged voters will attempt to vote on election day only to find that their name has been removed from the voter registration rolls because they had not previously been civically engaged. Furthermore, it seems that H.B. 253 would have just as much, if not more, potential for distorting Utah’s voting statistics. How in the world do we get an accurate picture of Utah’s level of civic engagement by ignoring people who are eligible to vote but are, for whatever reason, not exercising the franchise? The whole thing smacks of ostrich-style willful ignorance. Regardless of whether eligible voters choose to participate in elections or not, they remain a part of the body politic. As was noted by numerous others yesterday afternoon: The right to vote includes the right not to vote.

One of the primary arguments of those critical with Utah’s caucus system is that it contributes to Utah’s alarmingly low levels of electoral participation. There’s a part of me that wonders whether this bill is designed, at least in part, as an attempt to answer that critique by artificially inflating voter participation totals overnight, coincident with the GOP’s laudable push to get as many people out to caucus night as possible.

Some Closing Thoughts

It makes sense to occasionally review our voter registration rolls to ensure that they are accurate and up to date. So let’s ensure that people who are clearly disqualified from voting in Utah are removed to discourage fraud and help us get an accurate idea of Utah’s level of civic engagement. But it doesn’t do Utah or its voters any good to take away someone’s voter registration simply based on the fact that they haven’t voted.

Filed Under: Bill Summaries, Law, News, Opinion, Slider Tagged With: 2012 legislative session, aclu, fraud, hb477, law, national voter registration act, notice, rep. kraig powell, utah legislature, vote, voter registration, voting rights act

Quick Thoughts on the McAdams Statewide Anti-Discrimination Bill

January 20, 2012 by Curt Bentley Leave a Comment

I don’t have a lot of time this morning, but I did want to take some time to comment on Senator Ben McAdams’s proposal for a statewide anti-discrimination law modeled on the Salt Lake City ordinances passed in 2010. The law would make it unlawful to discriminate in employment of housing on the basis of a person’s sexual orientation or gender identity.

Nationwide, we have various laws — such as Title VII of the Civil Rights Act, the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Fair Housing Act and others — that prohibit discrimination based on certain criteria. In Utah, we have the Utah Anti-Discrimination Act, which substantially duplicates Title VII and provides a state level remedy against discrimination in employment as well. But though these laws protect Utah’s citizens from discrimination based on their race, color, national origin, gender, religion, and age, they do not prohibit discrimination in employment or housing based on a person’s sexual orientation or gender identity.

Although Senator McAdams’s bill is not yet available for review, we can surmise what it may look like based on the Salt Lake City ordinances themselves, as well as legislation proposed in previous sessions. And if it reflects these prior proposals it will be designed carefully balance the rights of religious groups with the individual rights of same sex and transgendered persons. The Salt Lake City ordinances are very cautious — they do not create a private right of action for affected persons, but do allow for injunctive relief and limited financial penalties against discriminating employers/housing providers. We’ll have to see whether Senator McAdams’s bill goes a bit farther.

Aside from the broader argument that private property rights should entitle individuals to discriminate as they see fit, I hear two primary arguments against proposals like Senator McAdams’s, neither of which I believe have merit, and to which I respond briefly below.

Government Shouldn’t Legislate When There’s No Demonstrated Need

The first argument I hear advanced against non-discrimination ordinances is that there is no need for another separate statewide anti-discrimination law because there is no evidence that discrimination based on sexual orientation or gender identity is a problem. Here’s a brief articulation of this argument, taken from the blog of a former member of the American Fork City Council about American Fork’s consideration of similar ordinances:

My Position: I cannot support both Non-Discrimination ordinances as written or amended. Nor will I vote in favor of a non-binding Resolution.

My Reasoning: (In no particular order. It is further non-exclusive. Please excuse repetitive arguments made in previous meetings).

No demonstrative need. (There has not been a documented case of discrimination in housing or employment in American Fork).Note: This fact was acknowledged in a November Work Meeting. Nothing has been submitted since. As a proponent of limited government; if there is no need, don’t legislate.

. . .

As an attorney, I get calls on a regular (though infrequent) basis from people who wonder what their rights are as a victim of discrimination or harassment based on their sexual orientation (or people calling on behalf of friends and family). I tell them that, unless they live or work within the municipal boundaries of a city that has passed a non-discrimination ordinance (e.g., Salt Lake City or Ogden), they are essentially out of luck. It is, in my opinion, disingenuous to claim there is no need for an anti-discrimination ordinance, based on the absence of documented reports of discrimination, when there is currently no legal remedy for this type of discrimination for the vast majority of Utahns.

But I think there is a more fundamental problem with this first argument. And that is that Senator McAdams’s proposal is at least as much about creating a remedy as solving a problem. There may be a widespread problem in Utah with discrimination based on sexual orientation and gender identity, or there may not be. But there should be a remedy for people adversely affected when it happens.

Furthering the Gay Rights Agenda

The second argument I hear advanced against non-discrimination ordinances is that they are simply a tool for furthering the gay rights agenda, the ultimate goal of which is nationwide gay marriage. Here’s a snippet from the blog of Representative Jeremy Peterson:

[A] survey shows overwhelming support for an anti-discriminatory law. I think this reflects my perception. Everyone thinks it’s the law already because that is how people already behave.

Also, to put further support behind this bill and others that are sure to follow, the survey asks if Utah is perceived as being fair and respectful of gay and transgendered folks. What is interesting about this is that it does not ask if Utah is fair and respectful but asks if other people think it is perceived as such. So the question is like me asking: What do you think your sister thinks about you? Not: What do you think of yourself. Interesting way to ask the question. Anyway, the majority say we don’t think others perceive us well. Is this just more of the usual Utah-peculiar-people-self-conciousness? I bet that this score would be high regardless of the subject matter. You could ask: Do you think outsiders think Utahn’s are strange? Of course we think they do. Perhaps we should keep that in mind while interpreting these survey results.

I will let you review the rest of the survey. But one thing is certain, expect to see more legislation to push forward the agenda of the gay and lesbian community. Clearly, encouraged by these survey results, the LGBT community feels that now is the time to strike to push their own agenda forward. For instance, today’s Salt Lake Tribune reports about an openly gay Democratic colleague of mine who is pushing for insurance benefits for cohabitating adults of any sexual orientation. I am not especially excited about this particular measure.

Of course, the ultimate prize is to somehow conquer public opinion and legalize same-sex marriages at the Federal level. Like any experienced Cajun chef knows, you don’t throw a frog in a boiling pot. Frogs are best cooked slowly and warmed to boiling degree by degree. For the LGBT community, that is done one state and one statute at a time.

To the extent the gay and lesbian community has an agenda, it’s simply to obtain the equal treatment under the law that they believe they are entitled to. Independent of whether this somehow leads to the statutory or constitutional legalization of same sex marriage, outlawing discrimination against same sex individuals in their employment and housing is a victory in and of itself; it’s more than just a component part of a “nefarious” frog-killing strategy.

Now, to be fair to Representative Peterson, it appears that despite his view of how Senator McAdams’s proposal fits into the broader context of the gay rights movement, he is leaning toward supporting a statewide anti-discrimination law because he believes it’s already consistent with the beliefs and practices of the majority of Utahns. But the problem with his post is that it suggests that people who are opposed to same sex marriage should also be skeptical of a law that prevents and employer from firing someone because they are gay, or a landlord from evicting a gay tenant because he or she doesn’t want them in an apartment complex. Of course everyone is going to have their own opinions on the propriety or constitutionality of laws prohibiting same sex marriage. That debate can continue, but it shouldn’t be the focus of the debate over Senator McAdams’s proposal, and the strong feelings that exist regarding traditional marriage shouldn’t cloud our consideration of a bill that seems, to me, anyway, to be a no-brainer.

Filed Under: Bill Summaries, Law, News, Opinion Tagged With: 2012 legislative session, ben mcadams, civil rights, derek brown, employment discrimination, gay rights, gender identity, same sex marriage, sexual orientation, title vii, utah anti-discrimination act, utah legislature

H.B. 56 — Condominium Amendments, Rep. Litvack

January 2, 2012 by Curt Bentley Leave a Comment

*Note: this is an analysis of H.B. 56 as proposed on January 2, 2012, and the bill may have been amended since that time.

Alternative dispute resolution methods — especially mediation and arbitration — seem to be becoming more and more popular with our representatives up at the state legislature, whether as tools for modest tort reform, ways to open up the dispute resolution process to those who might be priced out of invoking the full judicial machinery, or as methods for conserving judicial resources.

This session, Representative David Litvack is proposing legislation that would extend the arbitration services of the legislatively-created Office of the Property Rights Ombudsman to dispute between condominium owners and their associations.

Currently, the Office of the Property Rights Ombudsman is tasked with advising property owners regarding takings (eminent domain) and land use issues. It is authorized to:

(a) develop and maintain expertise in and understanding of takings, eminent domain, and land use law;
(b) assist state agencies and local governments in developing the guidelines required by Title 63L, Chapter 4, Constitutional Taking Issues;
(c) at the request of a state agency or local government, assist the state agency or local government, in analyzing actions with potential takings implications or other land use issues;
(d) advise real property owners who:
(i) have a legitimate potential or actual takings claim against a state or local government entity or have questions about takings, eminent domain, and land use law; or
(ii) own a parcel of property that is landlocked, as to the owner’s rights and options with respect to obtaining access to a public street;
(e) identify state or local government actions that have potential takings implications and, if appropriate, advise those state or local government entities about those implications; and
(f) provide information to private citizens, civic groups, government entities, and other interested parties about takings, eminent domain, and land use law and their rights and responsibilities under the takings, eminent domain, or land use laws through seminars and publications, and by other appropriate means.

Representative Litvack’s bill would add to the following to the Office of the Property Rights Ombudsman’s list of responsibilities:

(g) advise a condominium owner who has a legitimate potential or actual dispute with the owner’s condominium association involving the owner’s condominium unit.

A “legitimate actual or potential dispute” is defined as a dispute “concerning a matter of greater than trivial significance” that arises “from allegations that, if true, would show that the condominium association has taken or is taking action that is contrary to state law or to the declaration, bylaws, or other documents governing the association.” ”[T]rivial significance” is not defined in the statute, but it’s probably safe to assume that we’re talking about a dollar amount threshold that will be defined in practice by the Office of the Property Rights Ombudsman itself (I didn’t see any provision authorizing the adoption of implementing regulations in the proposed bill).

In addition to providing advice about legitimate disputes between a condominium owner and a condominium association, H.B. 56 would empower the Office of the Property Rights Ombudsman to initiate binding arbitration between a condominium owner and a condominium association if: (1) the condominium owner requests it, (2) the dispute between the condominium owner and the condominium association is “legitimate,” and (3) the Office of the Property Rights Ombudsman determines that mediation or arbitration of the dispute is “otherwise appropriate.”

As you can see, there’s lots of wiggle room built into the mediation/arbitration provisions of Representative Litvack’s bill. The “otherwise appropriate” language seeming allows the Office of the Property Rights Ombudsman full discretion in picking and choosing which cases it will arbitrate and which ones it won’t (though it is required, if it denies arbitration, to send a letter to the condominium owner explaining the reasons for the denial). Even so, a statutory arbitration option can be quite a powerful tool for property owners — that majority of whom would almost certainly be financially prohibited from pursuing any significant claim through the judicial system. This is especially true where the requesting party is not obligated to pay for the statutorily mandated arbitration.

Representative Litvack’s bill proposes to fund the mediation and arbitration services provided by the Office of the Property Rights Ombudsman by creating a Condominium Fund that is funded by a mandatory annual registration fees imposed on condominium associations of $2 per unit. All condominium associations are required to pay the fee, regardless of whether they have nonprofit status or not. Failure to timely pay the fees as required prevents the condominium association from imposing or enforcing any lien on a condominium unit until the fees are paid (lawyers — are you paying attention to this potential defense?).

I don’t really have much commentary on H.B. 56, as I don’t have the experience or background with the Office of the Property Rights Ombudsman or condominium law to intelligently comment on its merits. So, even more than usual, I’d love some input on this one.

Good idea? Bad idea? Have at it!

Filed Under: Bill Summaries, Law, News Tagged With: 2012 legislative session, arbitration, condominium, condominium association, david litvack, lien, mediation, office of the property rights ombudsman, utha legislative

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

December 29, 2011 by Curt Bentley 1 Comment

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.

Filed Under: Bill Summaries, Law, News, Opinion, Slider Tagged With: 2012 legislative session, campaign contributions, campaign finance, federal preemption, governor, lobbyist, utah legislature

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

December 26, 2011 by Curt Bentley 6 Comments

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.

Filed Under: Bill Summaries, Law, News Tagged With: 2012 legislative session, concealed weapons, criminal law, firearms, guns, judge hilder, paul ray, second amendment, university of utah, utah legislature, utah supreme court

Dan Liljenquist and State Level Medicaid Reform

December 15, 2011 by Curt Bentley Leave a Comment

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.

Filed Under: Bill Summaries, Law, News, Opinion, Slider Tagged With: constitution, dan liljenquist, entitlement reform, federalism, medicaid, obamacare, reform, supremacy clause, utah legislature, waiver

Is Utah’s Prohibition of Donations to Legislators During the Legislative Session Constitutional?

November 12, 2011 by Curt Bentley 1 Comment

Update — November 21, 2011: So I was directed to some advisory opinions from the Federal Election Commission (“FEC”) today, which subsequently led me to an 11th Circuit case — Teper v. Miller, 82 F.2d 989 (11th Cir. 1996) — that very clearly upholds the entry of a preliminary injunction against enforcement of a Georgia session contribution statute based on federal field preemption. I haven’t had the opportunity to Shepardize yet, but will soon.

Here’s the preemption provision, found at 2 U.S.C. § 453:

Sec. 453. State laws affected

(a) In general

Subject to subsection (b) of this section, the provisions of this Act, and of rules prescribed under this Act, supersede and preempt any provision of State law with respect to election to Federal office.

(b) State and local committees of political parties

Notwithstanding any other provision of this Act, a State or local committee of a political party may, subject to State law, use exclusively funds that are not subject to the prohibitions, limitations, and reporting requirements of the Act for the purchase or construction of an office building for such State or local committee.

Regulations adopted pursuant to the Federal Election Campaign Act at 11 C.F.R. 108.7 support a broad interpretation of the statutory preemption provision:

Federal law supersedes State law concerning the –

(1) Organization and registration of political committees supporting Federal candidates;

(2) Disclosure of receipts and expenditures by Federal candidates; and

(3) Limitation on contributions and expenditures regarding Federal candidates and political committees.

While this doesn’t affect my constitutional analysis, it does, I think, strongly suggest (and I only hedge because I have not had the chance to check whether the Teper case is still good law) that Utah’s ban on session campaign contributions is unenforceable as to candidates for federal office. This does leave open the interesting possibility that the provision would apply to Governor Herbert, together with all state legislators who are candidates for his position or for Salt Lake County Mayor (Sumsion, Romero, & McAdams), but not to legislators that are candidates for one of Utah’s U.S. Senate or House seats. Can invalidation of a law by operation of preemption create a constitutional equal protection problem? Honestly, I have no clue. But this sure is fun!

So, where does all this leave us? Here’s what I think: (1) the statute is unenforceable as to candidates for federal office, and (2) the statute may be unconstitutional as to all candidates.

———————————-

Hat tip to Robert Gehrke of the Salt Lake Tribune for this story about the impact of Utah Code Ann. 36-11-305, which prohibits contributions to sitting legislators and the governor (or to their campaigns/political action committees) during the state legislative session.

Given (1) the veritable glut of current state politicians currently vying to either be one of Utah’s representatives or senators in Washington or mount a challenge to Governor Herbert, combined with (2) the extraordinarily close proximity between the end of the 2012 legislative session (March 8, 2012), GOP caucus night (March 15, 2012), and party conventions (April 21, 2012), a 45-day ~~money grubbing~~ fundraising hiatus during the weeks immediately leading up to decision time may just be too big a risk for potential office-seekers to take. Carl Wimmer, Dan Liljenquist, and Stephen Sandstrom have suggested that section 36-11-305 will require them to think seriously about whether they should resign from the legislature in order to pursue their campaigns for federal office. Ben McAdams and Ross Romero have said they plan to continue serving in the legislature why they campaign for Salt Lake County Mayor.

When I read Gehrke’s article, I immediately wondered whether section 36-11-305 is constitutional, or whether it violates candidates’/contributors’ First Amendment rights. After all, even though section 36-11-305 has been on the books a while (since 1995, see below), campaign finance law is in flux these days and is front and center in public consciousness, thanks in no small part to the United States Supreme Court’s decision in Citizens United v. Federal Election Commission, Occupy Wall Street, and the inimitable Stephen Colbert. Complicating matters, section 36-11-305 has changed significantly since it was first enacted — has it moved toward or away from constitutionality? Since I’m not an expert on campaign finance law, I decided to do some investigating. Here’s what I found. All the normal caveats about the wisdom of any serious reliance on my limited expertise and half-hearted efforts apply.

Oh, and you should know that this is long. But also pretty good, I think.

If you’d just like the summary, click here.

First, Some Legislative History

Utah Code Ann. 36-11-305 as originally enacted (1995)

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

(1) It is unlawful for a lobbyist or principal 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 during the time that Legislature is convened in annual general or veto override session, or in a special session convened before July 1 or a general election year.

(2) Any person who violates this section is guilty of a class A misdemeanor.

Utah Code Ann. 36-11-305 as amended (2003)

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

1. It is unlawful for a person, lobbyist [or], 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 or veto override session, or in a special session convened before July 1 or a general election year.

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 or veto override session, during a special session convened before July 1 of a general election year, 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.

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

Utah Code Ann. 36-11-305 as currently enacted (2011)

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

When section 36-11-305 was first enacted in 1995, it applied only to donations that were (1) made by lobbyists, and (2) made to currently serving legislators. In 2003, the legislature enacted H.B. 187, sponsored by Representative Neil Hansen and Senator Stephenson, which amended section 36-11-305 to apply its restrictions to the governor. Although apparently no one noticed, the 2003 amendment also broadened section 36-11-305 to include, within its prohibitions, contributions from people other than lobbyists.

From reading through the statutory progression you can see that Section 36-11-305 has expanded its reach over time. When first enacted, it applied only to contributions (1) by lobbyists of their principals, (2) made directly to a legislator or to a legislator’s “personal campaign committee,” (3) during the time that the legislature was in general, special, or veto-override session.

In 2003, Representative Hansen’s amendment was adopted for the primary purpose of extending the prohibitions in 36-11-305 to the governor. However, the 2003 amendment changed the statute in other significant ways. First, it applied the prohibitions to contributions made to “political action committees” that were “controlled” by legislators or the governor. Second, and most significantly, in my view, it extended the limitation on contributions beyond lobbyists and their principals to include “persons” and “political committees” — which, for all practical purposes, includes contributions from anyone. Whereas before the 2003 amendment to section 36-11-305, legislators were free to solicit and receive contributions from non-lobbyist constituents, as well as to contribute to their own campaigns, during the session, the current version of section 36-11-305, as amended in 2003, would seem to prohibit them from doing both.

I went and listened to the Senate Debates of the 2003 amendment to section 36-11-305, and heard no references whatsoever to the extension of the prohibition to contributions to persons; all discussion centered on the appropriateness of the extension of the general prohibition to the governor. I attempted to listen to the House Debates as well, but they would not download correctly. I didn’t listen to any of the original debates in 1995, as they were not available online and I wasn’t inclined to trek over to the State Archives in the snow.

Similar Provisions on the Books in Other States

Once I got a good sense of the history and effect of Section 36-11-305, I went looking for new about similar provisions enacted in other states. Turns out that, as of 2010, according to the National Conference of State Legislatures, 30 states have passed legislation that prohibits political contributions while the state legislature is in session. Apparently, 13 of those laws apply only to lobbyists, while 17 of the laws (like Utah’s) apply to all contributions, no matter the source.

Similar Provisions in the Courts

I next searched for judicial authority addressing the constitutionality of session contribution bans. I was able to locate a few cases, and have summarized (and quoted) significant aspects of their holding below.

North Carolina Right to Life v. Bartlett – UPHELD

In this case, the U.S. Court of Appeals for the Fourth Circuit upheld North Carolina’s session contribution ban, which applied only to contributions by lobbyists. Here’s a snippet of the court’s reasoning:

More generally, “[n]either the right to associate nor the right to participate in political activities is absolute.” When the interests sought to be advanced by the statutory scheme are sufficiently important, minimal burdens on one’s right to associate are constitutional. Not only are the interests served by North Carolina’s statutory scheme important, they are compelling. Moreover, the burden on appellees’ right to associate is minimal. Appellees are not prevented from contributing to the candidates and incumbents of their choice, they are only restrained from doing so while the Assembly is in session. In conclusion, this effort on the part of a state legislature to protect itself from the damaging effects of corruption should not lightly be thwarted by the courts. Here, the proper judicial posture should be one of restraint. The Constitution does not prevent this attempt on the part of North Carolina to preserve the integrity of and maintain public confidence in its legislative process. In the end, North Carolina law does nothing more than recognize that lobbyists are paid to persuade legislators, not to purchase them (citations omitted).

Shrink Missouri Government PAC v. Maupin – STRUCK DOWN

Contrast the Bartlett case with a case out of the Eastern District of Missouri, where the district court struck down a session contribution law that prohibited all contributions — no matter the source — made to any person serving in a statewide office, or who was a candidate for statewide office (including U.S. Representative/Senator). The state legislative session in Missouri lasts for approximately 4.5 months. The district court struck down Missouri’s session contribution law on a number of grounds, including that it was not narrowly tailored to advance the state’s compelling interest in combatting corruption and that it prohibited candidates from contributing to their own campaigns during the legislative session, and indirectly imposed a limit on campaign expenditures:

Furthermore, § 130.032(4) fails to recognize the reality that corruption can take place anytime, even outside the banned time-period. If corrupt practices can take place during the regular session, they can just as easily take place other times during the year. Defendants concede that the statute does not prohibit the solicitation of contributions during the legislative session. “A quid pro quo arrangement, if one existed, might very well take the form of an under-the-table or tacit I.O.U. to be redeemed after the session ends.” Defendants fail to consider that “dangling a carrot” before a legislator is more apt to produce the desired effect than paying up front and hoping s/he carries out the contributor’s wishes.

Finally, the Court notes that the statute on its face fails to exempt application of the prohibition for contributions by candidates to their own campaigns during the general assembly’s regular session. Preventing corruption or the appearance of corruption is hardly a worthy endeavor to pursue by prohibiting candidates from utilizing their own money in their campaigns. The problem of improper influence by outside interests is not implicated when the monies come from the candidate him or herself. In this respect the statute is undeniably unconstitutional as evidenced by the Buckley Court’s ruling that struck down portions of a campaign finance statute because it prohibited candidates from contributing their own monies to their campaign. The Court concludes that § 130.032(4) effectively prohibits all contributions to all persons presently holding a statewide-elected political office or legislative office, and all candidates for these offices, for a significant period of time. This prohibition on all campaign contributions while the Missouri Legislature is in session amounts to an imposition of an aggregate limit on total contributions incumbents and candidates receive during the banned time-period, in essence, a zero contribution limit. Such a contribution limit severely impacts on a candidate’s ability to expend funds which in turn impinges upon the rights of individual citizens and candidates to engage in political debate and discussion.

The defendants have failed to carry their burden of demonstrating that § 130.032(4) will alleviate actual corruption or the appearance of corruption in a direct and material way; nor have the defendants demonstrated that § 130.032(4) is narrowly tailored to further the State’s compelling interests. Accordingly, the Court concludes that 130.032(4) unconstitutionally burdens the First Amendment rights of expression and association.

Kimbell v. Hooper – UPHELD

In Kimbell v. Hooper, the Vermont Supreme Court upheld a session contribution law that applied only to contributions from lobbyists. The court addressed the issue briefly, reasoning as follows:

If anything, the restrictions in § 266(3) are less burdensome than the dollar limits upheld in Buckley, and do not compare to the total prohibition held unconstitutional in Fair Political Practices Comm’n v. Superior Court. Section 266(3) sets no overall limits. It functions solely as a timing measure, banning contributions to individual members only while the General Assembly is in session. The Act does not prohibit contributions to political parties during session, only those to individual legislators. Consequently, the limited prohibition focuses on a narrow period during which legislators could be, or could appear to be, pressured, coerced, or tempted into voting on the basis of cash contributions rather than on consideration of the public weal. The legislature has chosen a narrowly drawn measure to avoid a serious appearance of impropriety, and we see no reason to strike that measure down (citation omitted).

Emison v. Catalano – STRUCK DOWN AS TO NON-INCUMBENTS

A case out of the Eastern District of Tennessee addressed a statute, like that one at issue in Shrink (the Missouri case), that prohibited contributions to both current legislators and non-incumbent candidates during the legislative general session. The Emison court entered an injunction prohibiting enforcement of the limitation as to non-incumbent candidates, but leaving the statute intact as to current legislators. The statute applied to all contributions, whether from lobbyists or not:

Against this background, this court finds itself constrained to agree with the Supreme Court of Florida in State v. Dodd and with the Attorney General and Reporter of the State of Tennessee in Tenn.Op.Atty.Gen. No. 95-058 (May 24, 1995), that a black-out provision like that in T.C.A. § 2-10-310(a), although inspired by the commendable impulse to eliminate corruption and the appearance of corruption in political life, cannot constitutionally be applied to contributions to nonincumbent candidates for seats in the legislature (citation omitted).

Alaska v. Alaska Civil Liberties Union – STRUCK DOWN

The Alaska Supreme Court struck down Alaska session contribution law, again on the ground that it applied to both incumbents and non-incumbents. Although it’s not clear from the opinion, it appears that the Alaska provision applied to all contributions, whether from lobbyists or not. Unlike the Emison court, it declined to sever the statute and allow the portion applying the restriction to incumbents stand:

Preventing corruption or its appearance is a compelling interest justifying narrowly-tailored restraints on First Amendment rights. But the very circumstance most relevant to the appearance of corruption-receipt of contributions by incumbent candidates during the session-does not imply that in-session contributions to challengers also give the appearance of corruption. The ban is therefore not narrowly tailored to the State’s compelling interest, and is invalid as to non-incumbents. But invalidating the ban only as to challengers would fundamentally unbalance a restriction which the legislature clearly intended to apply to incumbents and challengers alike, and would defeat the legislature’s clear intention as to this prohibition. We therefore decline to invalidate only part of this ban while upholding it with respect to incumbent candidates.

Arkansas Right to Life Political Action v. Butler – STRUCK DOWN

In Arkansas Right to Life, the federal district court struck down an Arkansas law that prohibited contributions, from any source, that applied only to incumbent legislators and other state office seekers. The court reasoned that the statute was not narrowly tailored to combat the compelling interest in opposing corruption (and the appearance of corruption) because (1) it banned contributions only during the legislative session, when corruptive contributions could be made at any time, and (2) it prohibited large and small contributions:

While it is true that Arkansas’ black-out period only applies to incumbents, and, thus is narrowly tailored in that instance, it does not take into account the fact that corruption can occur any time, and that only large contributions pose a threat of corruption. We therefore conclude that as a matter of law, § 7-6-203(g) is not narrowly drawn to serve the state’s compelling interest, and, thus, it is unconstitutional.

State v. Dodd – STRUCK DOWN

In State v. Dodd, the Florida Supreme Court struck down Florida’s session contribution statute, which applied to all contributions — whether from lobbyists or not — made to a candidate for statewide office — whether incumbent or not — during the legislative session. The court concluded the statute was unconstitutional because (1) it was not narrowly tailored to fight the appearance of corruption because it included non-incumbent candidates in its prohibitions; (2) it applied to all legislative sessions, and the legislature could be called into session at any time during the year; (3) it failed to recognize that corruption did not begin or cease with the legislative session; and (4) the statute prohibited candidates from contributing to their own campaigns. The Dodd court’s analysis is sufficiently to merit quoting a length:

We cannot agree, however, that the statute advances this interest through the least intrusive means. One of the primary constitutional defects is that the Campaign Financing Act applies to all office-seekers without exception. As a result, it places restrictions on some public officials and candidates who could not possibly be subject to a corrupting quid pro quo arrangement. Dodd, for instance, presently holds no public office. He has no vote or influence to trade for campaign contributions. . . .

We find other infirmities. To the extent that the statute may be construed as applying to all legislative sessions, we believe the censorship thereby imposed has the potential to be so extreme as to be irremediably unconstitutional. It is possible that the legislature could be called into a series of sessions lasting for huge portions of any given year. . . .

[T]he sheer magnitude and practical impact of the present restriction renders it unconstitutional. Even assuming that a regular legislative session lasts only two months of the year, this is a two-month period in which the Campaign Financing Act halts all sources of financing. . . . As the Buckley Court suggested, the rights of free speech and association forbid measures that “prevent [] candidates and political committees from amassing the resources necessary for effective advocacy.” We believe that the prohibition at issue here has just such an effect because it cuts off the flow of resources needed for effective advocacy during a crucial portion of the election year.

Moreover, by focusing entirely on the legislative session, the Campaign Financing Act fails to recognize that corrupt campaign practices just as easily can occur some other time of the year. Legislative committees meet throughout the calendar, frequently with the involvement of lobbyists and other special interests. Indeed, much legislation is shaped in the months immediately prior to the regular session, when committees and legislative workshops occur virtually on a continuous basis. If corrupt practices can occur during a session, they also can occur at other times. A quid pro quo arrangement, if one existed, might very well take the form of an under-the-table or tacit I.O.U. to be redeemed after the session ends. Finally, we also note — as the state concedes — that this statute forbids candidates to contribute to their own campaigns during the times in question. We believe it is specious to argue that any sort of “corruption” or inattention to legislative duties occurs as a result of this practice. Indeed, in this respect the statute is obviously unconstitutional under federal case law. The Court struck a statute precisely because it prohibited candidates from contributing to their own campaigns.

We thus believe that the Campaign Financing Act fails to accomplish its goals through the least restrictive means available, as required by law. Less restrictive measures obviously exist. For example, certain types of organizations or entities found to be most involved in creating the appearance of corruption could be subject to restrictions similar to those approved in the recent opinion in Austin. Legislators themselves could restrict their own access to campaign contributions during a legislative session through similar narrowly tailored regulations. There surely are many other ways that, alone or in combination, would be far less restrictive of free speech and associational rights than the statute in issue today (citations omitted).

Case Law Summary & Application to Section 36-11-305

From the case law summarized above (and I suspect there are more cases that I haven’t located yet), you can derive a few principles that appear to govern the constitutionality of session contribution restrictions like Section 36-11-305:

Session contribution statutes appear to be universally upheld when their application is limited to contributions coming from lobbyists.
Session contribution statutes appear to be universally struck down when they apply to incumbents and non-incumbents alike.
Session contribution statutes are more likely to be upheld when they allow legislators or other incumbent office holders to contribute to their own campaigns during the legislative session.
Session contribution statutes are more likely to be struck down (almost, though not quite, universally) when they apply to all contributions — whether from lobbyists or not.

It’s important to remember that as restrictions on core political speech — the type of speech that is at the heart of the First Amendment’s protections — session contribution laws like section 36-11-305 are subjected to strict scrutiny. This requires that the law advance a compelling interest in the least restrictive means possible. And it means laws that apply more broadly than is necessary (even if only in a relatively minor way) to advance the state interest — in this case limiting corruption and the appearance of corruption — are struck down.

Given the strict standard of review and the principles outlined above, I think we can safely say that the constitutionality of Utah’s law is uncertain. While Utah’s session contribution prohibition does not apply to non-incumbent challengers (which bodes well for constitutionality), the prohibitions are also not limited to contributions from lobbyists and have no exception allowing legislators or the governor to donate to their own campaigns during a legislative session (which would makes the prohibition more likely to be found unconstitutional). Given those facts, and the apparent judicial swing in favor of speech versus campaign finance restrictions signaled by Citizens United, section 36-11-305′s constitutionality is definitely in doubt, though it could likely be fixed simply by once again limiting its application to donations from lobbyists and providing an exception for candidates to donate to their own campaigns.

I’d love your thoughts, whether or my analysis or what this all means (if anything)?

Filed Under: Bill Summaries, Election 2012, Law, News, Slider Tagged With: campaign finance, carl wimmer, constitution, dan liljenquist, first amendment, gary herbert, law, legislative session, lobbyist, utah legislature

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Utah Code Ann. 36-11-305 as originally enacted (1995)

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Utah Code Ann. 36-11-305 as currently enacted (2011)

North Carolina Right to Life v. Bartlett – UPHELD

Shrink Missouri Government PAC v. Maupin – STRUCK DOWN

Kimbell v. Hooper – UPHELD

Emison v. Catalano – STRUCK DOWN AS TO NON-INCUMBENTS

Alaska v. Alaska Civil Liberties Union – STRUCK DOWN

Arkansas Right to Life Political Action v. Butler – STRUCK DOWN

State v. Dodd – STRUCK DOWN

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