Tag Archives: Jean Schodorf

As lawmakers, Kansas judges should be selected democratically

Kansas Judicial Center in snowWhile many believe that judges should not “legislate from the bench,” that is, make law themselves, the reality is that lawmaking is a judicial function. In a democracy, lawmakers should be elected under the principle of “one person, one vote.” But Kansas, which uses the Missouri Plan for judicial selection to its highest court, violates this principle.

A 2012 paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the judicial selection process in Kansas. The paper is titled Originalism, Balanced Legal Realism and Judicial Selection: A Case Study and may be downloaded at no charge. The Kansas court that uses the method of judicial selection described in the paper — the Missouri Plan — is the Kansas Supreme Court. (Prior to July 1, 2103, the Kansas Court of Appeals also used the Missouri Plan for judicial selection.)

At issue is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process. Ware explains: “This realist view that statutory interpretation often involves ‘substantial judicial discretion’ and therefore constitutes ‘judicial lawmaking, not lawfinding,’ had by the 1950s, ‘become deeply rooted.'”

A “‘balanced realism,’ to use Brian Tamanaha’s appealing label, recognizes both that judges’ policy preferences have little or no influence on many judicial decisions and that judges’ policy preferences have a significant influence on other judicial decisions. Empirical studies tend to support this balanced view.” In other words, there is some role for ideology in making judicial decisions. Politics, therefore, is involved. Ware quotes Charles Gardner Geyh: “In a post-realist age, the ideological orientation of judicial aspirants matters.” And the higher the court, the more this matters.

Since judges function as lawmakers, they ought to be selected by a democratic process. In the Kansas version of the Missouri Plan, a nominating commission dominated by lawyers selects three candidates to fill an opening on the Kansas Supreme Court. The governor then selects one of the three, and the process is over. A new judge is selected. This process gives members of the state’s bar tremendous power in selecting judges.

In the paper, Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. In one, a workers’ compensation case, the employee would lose his appeal if the “clear” precedent was followed. Justice Carol A. Beier wrote the opinion. Ware explains:

But this is not, in fact, what Justice Beier and her colleagues on the Kansas Supreme Court did. Rather they did what Kansas Judges Greene and Russell say never happens. Justice Beier and her colleagues engaged in lawmaking. They changed the legal rule from one contrary to their ideologies to one consistent with their ideologies.

Justice Beier’s opinion doing this started by criticizing the old rule, while acknowledging that it was, in fact, the rule prior to her opinion by which the Supreme Court made new law. Here again is the above quote from Coleman, but now with the formerly omitted words restored and italicized: “The rule is clear, if a bit decrepit and unpopular: An injury from horseplay does not arise out of employment and is not compensable unless the employer was aware of the activity or it had become a habit at the workplace.”

Who decided that this rule is “decrepit and unpopular” and so should be changed? Was it the Kansas Legislature? No, it was the Kansas Supreme Court. It was judges, not legislators, who decided that this legal rule was bad policy. It was judges, not legislators, who changed the law to bring it in line with what the lawmaking judges thought was good policy.

Beier wrote in her opinion: “We are clearly convinced here that our old rule should be abandoned. Although appropriate for the time in which it arose, we are persuaded by the overwhelming weight of contrary authority in our sister states and current legal commentary.”

The result: New Kansas law, made by people selected through an undemocratic process.

In conclusion, Ware writes:

Non-lawyers who believe in the principle that lawmakers should be selected democratically need to know that judicial selection is lawmaker selection to be troubled by the Missouri Plan’s violation of this principle. Non-lawyers who do not know that judges inevitably make law may believe that the role of a judge consists only of its professional/technical side and, therefore, believe that judges should be selected entirely on their professional competence and ethics and that assessments of these factors are best left to lawyers. In short, a lawyer who omits lawmaking from a published statement about the judicial role is furthering a misimpression that helps empower lawyers at the expense of non-lawyers, in violation of basic democratic equality, the principle of one-person, one-vote.

Prospects for Kansas

In Kansas, the process for selecting judges to the Kansas Court of Appeals is governed by statute, and can be changed by the legislature and governor. In 2012 the House of Representatives passed a bill to reform the process, but it was blocked by Senate Judiciary Chair Tim Owens. He said “I think this is the first time I did not hear a bill because I thought it was so bad. This is a terrible, terrible bill that’s hated by the courts; it’s an attempt to take over control of the courts.”

Owens, who ranked as the least friendly senator to economic freedom in the 2012 edition of the Kansas Economic Freedom Index, lost his bid for re-election in the August primary election. Many of the other moderate Republicans who voted against reform also lost their primary election contest.

Owens, it should be noted, is an attorney, and is, therefore, a member of the privileged class that has outsize power in selecting judges.

Sometimes legislators are simply uninformed or misinformed on judicial selection. An example is Jean Schodorf, who lost a re-election bid in August. In an interview, she was quoted as saying “We thwarted changes to judicial selection that would have allowed the governor to have the final say in all judicial selections.”

Contrary to Schodorf, the bill that the senate voted on, and the one that Owens killed the year before, called for Court of Appeals judges to be appointed by the governor, with the consent of the senate. It’s actually the senate that has the final say.

Newspaper editorial writers across Kansas are mostly opposed to judicial selection reform. An example is Rhonda Holman of the Wichita Eagle, who in 2010 wrote: “Some critics may have a beef with past court decisions, perhaps even a legitimate one — which is no surprise, given that judicial decisions pick winners and losers. But they also may be motivated by politics — which is a problem, given that the judiciary is supposed to be fair, impartial and independent. In the absence of a strong case for change, Kansas should stick with what works.”

With the change in the composition of the Kansas Senate, the climate became favorable for reform of the way judges are selected for the Kansas Court of Appeals. In 2013 legislation reforming judicial selection for this court was passed and signed into law, taking effect on July 1, 2013. Now these justices are selected by appointment of the governor with confirmation by the senate. The law governing how judges for the Kansas Supreme Court are selected is part of the Kansas Constitution, and would require an amendment to alter the process. That requires a two-thirds vote in both chambers of the Kansas Legislature, and then a simple majority vote of the people.

By the way: For those who criticize the support for judicial selection reform as pure power politics, since Kansas has a conservative governor, remember this: When Professor Ware sounded the need for reform and convinced me of the need, our governor was the liberal Kathleen Sebelius. There was also a liberal senate at that time, one which would undoubtedly have rubberstamped any nominee Sebelius might have sent for confirmation.

Originalism, Balanced Legal Realism and Judicial Selection: A Case Study
By Stephen J. Ware

Abstract: The “balanced realist” view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar.

The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote.

This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers.

The complete paper may be downloaded at no charge here.

As lawmakers, Kansas judges should be selected democratically

Kansas Judicial Center in snowWhile many believe that judges should not “legislate from the bench,” that is, make law themselves, the reality is that lawmaking is a judicial function. In a democracy, lawmakers should be elected under the principle of “one person, one vote.” But Kansas, which uses the Missouri Plan for judicial selection to its two highest courts, violates this principle.

A recent paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the process used in Kansas. The paper is titled Originalism, Balanced Legal Realism and Judicial Selection: A Case Study and may be downloaded at no charge. The Kansas courts that use the judicial selection described in the paper are the Kansas Court of Appeals and the Kansas Supreme Court.

At issue is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process. Ware explains: “This realist view that statutory interpretation often involves ‘substantial judicial discretion’ and therefore constitutes ‘judicial lawmaking, not lawfinding,’ had by the 1950s, ‘become deeply rooted.'”

A “‘balanced realism,’ to use Brian Tamanaha’s appealing label, recognizes both that judges’ policy preferences have little or no influence on many judicial decisions and that judges’ policy preferences have a significant influence on other judicial decisions. Empirical studies tend to support this balanced view.” In other words, there is some role for ideology in making judicial decisions. Politics, therefore, is involved. Ware quotes Charles Gardner Geyh: “In a post-realist age, the ideological orientation of judicial aspirants matters.” And the higher the court, the more this matters.

Since judges function as lawmakers, they ought to be selected by a democratic process. In the Kansas version of the Missouri Plan, a nominating commission dominated by lawyers selects three candidates to fill an opening on the Kansas Court of Appeals or Kansas Supreme Court. The governor then selects one of the three, and the process is over. A new judge is selected. This process gives members of the state’s bar tremendous power in selecting judges.

Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. In one, a workers’ compensation case, the employee would lose his appeal if the “clear” precedent was followed. Justice Carol A. Beier wrote the opinion. Ware explains:

But this is not, in fact, what Justice Beier and her colleagues on the Kansas Supreme Court did. Rather they did what Kansas Judges Greene and Russell say never happens. Justice Beier and her colleagues engaged in lawmaking. They changed the legal rule from one contrary to their ideologies to one consistent with their ideologies.

Justice Beier’s opinion doing this started by criticizing the old rule, while acknowledging that it was, in fact, the rule prior to her opinion by which the Supreme Court made new law. Here again is the above quote from Coleman, but now with the formerly omitted words restored and italicized: “The rule is clear, if a bit decrepit and unpopular: An injury from horseplay does not arise out of employment and is not compensable unless the employer was aware of the activity or it had become a habit at the workplace.”

Who decided that this rule is “decrepit and unpopular” and so should be changed? Was it the Kansas Legislature? No, it was the Kansas Supreme Court. It was judges, not legislators, who decided that this legal rule was bad policy. It was judges, not legislators, who changed the law to bring it in line with what the lawmaking judges thought was good policy.

Beier wrote in her opinion: “We are clearly convinced here that our old rule should be abandoned. Although appropriate for the time in which it arose, we are persuaded by the overwhelming weight of contrary authority in our sister states and current legal commentary.”

The result: New Kansas law, made by people selected through an undemocratic process.

In conclusion, Ware writes:

Non-lawyers who believe in the principle that lawmakers should be selected democratically need to know that judicial selection is lawmaker selection to be troubled by the Missouri Plan’s violation of this principle. Non-lawyers who do not know that judges inevitably make law may believe that the role of a judge consists only of its professional/technical side and, therefore, believe that judges should be selected entirely on their professional competence and ethics and that assessments of these factors are best left to lawyers. In short, a lawyer who omits lawmaking from a published statement about the judicial role is furthering a misimpression that helps empower lawyers at the expense of non-lawyers, in violation of basic democratic equality, the principle of one-person, one-vote.

Prospects for Kansas

In Kansas, the process for selecting judges to the Kansas Court of Appeals is governed by statute, and can be changed by the legislature and governor. Last year the House of Representatives passed a bill to reform the process, but it was blocked by Senate Judiciary Chair Tim Owens. He said “I think this is the first time I did not hear a bill because I thought it was so bad. This is a terrible, terrible bill that’s hated by the courts; it’s an attempt to take over control of the courts.”

Owens, who ranked as the least friendly senator to economic freedom in the 2012 edition of the Kansas Economic Freedom Index, lost his bid for re-election in the August primary election. Many of the other moderate Republicans who voted against reform also lost their primary election contest.

Owens, it should be noted, is an attorney, and is therefore a member of the privileged class that has outsize power in selecting judges.

Sometimes legislators are simply uninformed or misinformed on judicial selection. An example is Jean Schodorf, who lost a re-election bid in August. In an interview, she was quoted as saying “We thwarted changes to judicial selection that would have allowed the governor to have the final say in all judicial selections.”

The bill that the senate voted on, and the one that Owens killed the year before, called for Court of Appeals judges to be appointed by the governor, with the consent of the senate. It’s actually the senate that has the final say.

Newspaper editorial writers across Kansas are mostly opposed to judicial selection reform. An example is Rhonda Holman of the Wichita Eagle, who in 2010 wrote: “Some critics may have a beef with past court decisions, perhaps even a legitimate one — which is no surprise, given that judicial decisions pick winners and losers. But they also may be motivated by politics — which is a problem, given that the judiciary is supposed to be fair, impartial and independent. In the absence of a strong case for change, Kansas should stick with what works.”

With the change in composition of the Kansas Senate, the climate is more favorable for reform for the way judges are selected for the Kansas Court of Appeals. The law governing how judges for the Kansas Supreme Court are selected is in the Kansas Constitution, and would require an amendment to alter the process. Such an amendment requires a two-thirds vote in both chambers of the Kansas Legislature, and then a simple majority vote of the people.

By the way: For those who criticize the support for judicial selection reform as pure power politics, since Kansas has a conservative governor, remember this: When Professor Ware sounded the need for reform and convinced me of the need, our governor was the liberal Kathleen Sebelius. There was also a liberal senate at that time, one which would undoubtedly have rubberstamped any nominee Sebelius might have sent for confirmation.

Originalism, Balanced Legal Realism and Judicial Selection: A Case Study
By Stephen J. Ware

Abstract: The “balanced realist” view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar.

The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote.

This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers.

The complete paper may be downloaded at no charge here.

Kansas lawmakers, including judges, should be selected democratically

While many believe that judges should not “legislate from the bench,” that is, make law themselves, the reality is that lawmaking is a judicial function. In a democracy, lawmakers should be elected under the principle of “one person, one vote.” But Kansas, which uses the Missouri Plan for judicial selection to its two highest courts, violates this principle.

A recent paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the process used in Kansas. The paper is titled Originalism, Balanced Legal Realism and Judicial Selection: A Case Study and may be downloaded at no charge. The Kansas courts that use the judicial selection described in the paper are the Kansas Court of Appeals and the Kansas Supreme Court.

At issue is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process. Ware explains: “This realist view that statutory interpretation often involves ‘substantial judicial discretion’ and therefore constitutes ‘judicial lawmaking, not lawfinding,’ had by the 1950s, ‘become deeply rooted.'”

A “‘balanced realism,’ to use Brian Tamanaha’s appealing label, recognizes both that judges’ policy preferences have little or no influence on many judicial decisions and that judges’ policy preferences have a significant influence on other judicial decisions. Empirical studies tend to support this balanced view.” In other words, there is some role for ideology in making judicial decisions. Politics, therefore, is involved. Ware quotes Charles Gardner Geyh: “In a post-realist age, the ideological orientation of judicial aspirants matters.” And the higher the court, the more this matters.

Since judges function as lawmakers, they ought to be selected by a democratic process. In the Kansas version of the Missouri Plan, a nominating commission dominated by lawyers selects three candidates to fill an opening on the Kansas Court of Appeals or Kansas Supreme Court. The governor then selects one of the three, and the process is over. A new judge is selected. This process gives members of the state’s bar tremendous power in selecting judges.

Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. In one, a workers’ compensation case, the employee would lose his appeal if the “clear” precedent was followed. Justice Carol A. Beier wrote the opinion. Ware explains:

But this is not, in fact, what Justice Beier and her colleagues on the Kansas Supreme Court did. Rather they did what Kansas Judges Greene and Russell say never happens. Justice Beier and her colleagues engaged in lawmaking. They changed the legal rule from one contrary to their ideologies to one consistent with their ideologies.

Justice Beier’s opinion doing this started by criticizing the old rule, while acknowledging that it was, in fact, the rule prior to her opinion by which the Supreme Court made new law. Here again is the above quote from Coleman, but now with the formerly omitted words restored and italicized: “The rule is clear, if a bit decrepit and unpopular: An injury from horseplay does not arise out of employment and is not compensable unless the employer was aware of the activity or it had become a habit at the workplace.”

Who decided that this rule is “decrepit and unpopular” and so should be changed? Was it the Kansas Legislature? No, it was the Kansas Supreme Court. It was judges, not legislators, who decided that this legal rule was bad policy. It was judges, not legislators, who changed the law to bring it in line with what the lawmaking judges thought was good policy.

Beier wrote in her opinion: “We are clearly convinced here that our old rule should be abandoned. Although appropriate for the time in which it arose, we are persuaded by the overwhelming weight of contrary authority in our sister states and current legal commentary.”

The result: New Kansas law, made by people selected through an undemocratic process.

In conclusion, Ware writes:

Non-lawyers who believe in the principle that lawmakers should be selected democratically need to know that judicial selection is lawmaker selection to be troubled by the Missouri Plan’s violation of this principle. Non-lawyers who do not know that judges inevitably make law may believe that the role of a judge consists only of its professional/technical side and, therefore, believe that judges should be selected entirely on their professional competence and ethics and that assessments of these factors are best left to lawyers. In short, a lawyer who omits lawmaking from a published statement about the judicial role is furthering a misimpression that helps empower lawyers at the expense of non-lawyers, in violation of basic democratic equality, the principle of one-person, one-vote.

Prospects for Kansas

In Kansas, the process for selecting judges to the Kansas Court of Appeals is governed by statute, and can be changed by the legislature and governor. The House of Representatives has passed a bill to reform the process, but it was blocked by Senate Judiciary Chair Tim Owens. He said “I think this is the first time I did not hear a bill because I thought it was so bad. This is a terrible, terrible bill that’s hated by the courts; it’s an attempt to take over control of the courts.”

One of the dividing lines between “conservative” and “moderate” Kansas Senate Republicans is their attitude towards judicial selection, as revealed in a vote taken earlier this year. Owens, who ranked as the least friendly senator to economic freedom in the 2012 edition of the Kansas Economic Freedom Index, lost his bid for re-election in the August primary election. Many of the other moderate Republicans who voted against reform also lost their primary election contest.

Owens, it should be noted, is an attorney, and is therefore a member of the privileged class that has outsize power in selecting judges.

Sometimes legislators are simply uninformed or misinformed on judicial selection. An example is Jean Schodorf, who lost a re-election bid in August. In an interview, she was quoted as saying “We thwarted changes to judicial selection that would have allowed the governor to have the final say in all judicial selections.”

The bill that the senate voted on, and the one that Owens killed the year before, called for Court of Appeals judges to be appointed by the governor, with the consent of the senate. It’s actually the senate that has the final say.

Newspaper editorial writers across Kansas are mostly opposed to judicial selection reform. An example is Rhonda Holman of the Wichita Eagle, who in 2010 wrote: “Some critics may have a beef with past court decisions, perhaps even a legitimate one — which is no surprise, given that judicial decisions pick winners and losers. But they also may be motivated by politics — which is a problem, given that the judiciary is supposed to be fair, impartial and independent. In the absence of a strong case for change, Kansas should stick with what works.”

With the change in composition of the Kansas Senate next year, the climate is more favorable for reform for the way judges are selected for the Kansas Court of Appeals. The law governing how judges for the Kansas Supreme Court are selected is in the Kansas Constitution, and would require an amendment to alter the process. Such an amendment requires a two-thirds vote in both chambers of the Kansas Legislature, and then a simple majority vote of the people.

Just last week a federal appeals court ruled that the method Kansas uses to select justices to the Kansas Supreme Court is constitutional.

The Court’s discussion starts on a promising note: “That citizens have a fundamental right to vote for public officials on equal terms with one another is uncontroversial.”

But in the end, the Court sided with the present undemocratic Kansas system: “Kansas designed the Commission to favor lawyers in order to limit the influence of politics on the nomination process and ensure the quality of its judicial nominees. Preserving the quality and independence of the judiciary is a legitimate government interest, and having attorneys elect a majority of the Commission’s members is a rational way to accomplish that goal. Attorneys are better equipped than non-attorneys to evaluate the temperament and legal acumen of judicial candidates and more likely to base their votes on factors other than party affiliation. This is owing in part to their training which enables informed judgments about a candidate’s experience — his credentials, his area of expertise, his body of work — and the extent to which it strengthens or weakens his candidacy. ”

Originalism, Balanced Legal Realism and Judicial Selection: A Case Study
By Stephen J. Ware

Abstract: The “balanced realist” view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar.

The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote.

This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers.

The complete paper may be downloaded at no charge here.

Schodorf legacy should be evaluated on policy, not politics

News that Kansas Senator Jean Schodorf is leaving the Republican Party after her primary election loss has been treated as mostly a political story, which it certainly is. More important, however, is the potential for new policies and laws regarding Kansas schools that hold the promise of helping Kansas schoolchildren and families.

Senator Schodorf’s most notable cause has been education. As chair of the senate education committee, she has been in a position of tremendous influence over education policy in Kansas. We should examine, then, the results of Kansas education policy.

This summer Kansas received a waiver from the main provisions of the federal No Child Left Behind Act. As part of the waiver, Kansas agreed to create a teacher evaluation system that includes student achievement as a significant factor in the evaluation. Many people would probably be surprised to learn that student achievement isn’t already the major factor, perhaps even the only factor, in teacher evaluations. But under Schodorf’s chairmanship of the senate education committee, this isn’t the case.

Related to this is that Kansas ranks low in policies on teacher quality. Plentiful research shows that among the factors that schools have under their control, teacher effectiveness is by far most important. But under Schodorf’s chairmanship of the senate education committee, these important and broad-reaching reforms were not considered. Instead, her committee devoted enormous time and effort to tinkering with minor issues such as teacher tenure policy, itself a harmful policy.

It’s true that performance on the assessments that are under the control of Kansas are rising. But scores on the National Assessment of Educational Progress (NAEP) for Kansas students don’t reflect the same trend. Scores on this test, which is given every two years, aren’t rising like the Kansas-controlled test scores. These scores are largely unchanged over the past years.

Senator Schodorf, in her position of chair of the senate education committee, could have asked for an investigation as to why there exists this discrepancy. But she didn’t.

Speaking of test scores: Kansas often proudly claims that its schools rank very well when compared with other states. Compare Kansas with Texas, a state that Kansas school spending boosters like to deride as a state with low-performing schools. But you don’t have to look very hard to realize that these scores are a statistical artifact. It’s an unfortunate fact that minority students do not perform as well on these tests as white students. When you combine this with the fact that Kansas has a relatively small minority population, we can see why Kansas ranks well. In Kansas 69 percent of students are white, while in Texas that number is 33 percent. So it’s not surprising that overall, Kansas outperforms Texas (with one tie) when considering all students in four important areas: fourth and eighth grade reading, and fourth and eighth grade math.

But looking at Hispanic students only, Texas beats or ties Kansas in these four areas. For black students, Texas bests Kansas in all four. Texas does this with much less spending per pupil than Kansas.

Kansas also likes to brag of its high standards for schools. But when compared to other states, Kansas has low standards. The U.S. Department of Education’s National Center for Education Statistics (NCES) has analyzed state standards, and we can see that Kansas has standards that are below most states. The table of figures is available at Estimated NAEP scale equivalent scores for state proficiency standards, for reading and mathematics in 2009, by grade and state. An analysis of these tables by the Kansas Policy Institute shows that few states have standards below the Kansas standards.

This table is from KPI’s report earlier this year titled Removing Barriers to Better Public Education: Analyzing the facts about student achievement and school spending.

The conclusion by NCES is “… most states’ proficiency standards are at or below NAEP’s definition of Basic performance.” KPI, based on simple analysis of the NCES data, concluded: “Kansas is one of those states, with its Reading Proficiency standard set lower than what the U.S. Department of Education considers Basic performance. Math Proficiency levels are above what NAEP considers to be Basic but still well below the U.S. standard for Proficient.” Did Senator Schodorf, in her role as education committee chair, push for increasing Kansas standards? If she did, we didn’t hear of it, and it certainly didn’t become policy or law.

Across the country, charter schools and school choice programs are offering choice and improved educational outcomes to families. While Kansas has charter schools, the charter school law in Kansas is one of the weakest in the nation, and virtually guarantees that public schools won’t face much meaningful competition from charters. School choice in the form of vouchers or tax credits doesn’t exist at all in Kansas. As a result, Kansas public schools face very little of the competitive forces that have been found to spur public schools to improvement across the country. As chair of the senate education committee, Senator Schodorf worked to make sure that charter schools and school choice are not available to Kansas families.

The departure of Senator Schodorf and other moderate senators is a political story. But it presents a chance for Kansas to make some important changes to its schools that are greatly needed. For this important policy reason, we shouldn’t mourn the loss of Schodorf and the other moderates.

In Kansas, rejecting left-wing Republicans

The headline in the Kansas City Star reads “Voters reject middle ground in Kansas Senate races.” A more accurate conclusion is that voters have realized that the governance of Kansas by a coalition of Democrats and left-wing Republicans has not been in the state’s best interest. Stagnate job growth as compared to other states, increasing spending on schools with no accountability and not even an honest discussion of achievement, falling behind other states in school reform and school choice, a highly undemocratic method of selecting our state’s top judges, resistance to privatization and other measures to streamline government, business tax costs topped by only a few other states: these are some of the results of this coalition.

But yesterday, Kansas voters said goodbye to many of the left-wing Republicans — the so-called “moderates” or “traditional Republicans” — and nominated conservatives in their place. Some nominees face Democratic challengers in November.

The results are a surprise not only for the number of victories by conservatives, but the margin of victory. In Johnson County, incumbent Senator Tim Owens was defeated 60 to 40. Owens ranked at the bottom of all senators — Democrats included — in the Kansas Economic Freedom Index.

In a neighboring district, incumbent Senator Mary Pilcher-Cook won her primary election by a 64 to 36 margin. Pilcher-Cook ranked at the top of the Kansas Economic Freedom index. Conservative Steve Abrams, who ranked well in the KEFI, also defeated a challenger.

Another notable result is the defeat of Senate President Steve Morris.

Other defeats of moderates, some being incumbents, include Jeff Melcher over Pat Colloton to replace John Vratil, Jacob LaTurner over Bob Marshall, Forrest Knox over John Grange, Jeff King over Dwayne Umbarger, Greg Smith over Joe Beveridge, Bob Reader over Roger Reitz, Tom Arpke over Pete Brungardt, Michael O’Donnell over Jean Schodorf, Mitch Holmes over Ruth Teichmann, and Dan Kerschen over Dick Kelsey. Kelsey will dispute being lumped in the moderate camp, but on economic freedom issues, he ranked just barely above neutral.

There were some victories for the moderates. Kay Wolf won the primary to replace Terrie Huntington, which is a retention for moderates. In Topeka, moderate Vicki Schmidt retains a place in the Senate, as does Carolyn McGinn in south-central Kansas. Pat Apple defeated a challenge from Charlotte O’Hara. Apple ranks barely above neutral in the KEFI, while O’Hara, in the Kansas House, was near the top. Jeff Longbine survived a challenge from conservative James Fawcett.

Commenting on the results, Americans for Prosperity–Kansas state director Derrick Sontag said “The primary results make one thing clear: Kansans support those who promote fiscally conservative, limited government, free market policies. Fiscal conservatives are now being elected because of the policies that have failed our state for years. This new field of candidates vying for office reflects a continued desire to put a stop to the rampant state spending and high tax burdens of the past. It is evident from the results at the ballot box that Kansans want a reasonable, responsible government and we are optimistic that our state is now starting to head down the path toward prosperity and a strong Kansas economy.”

In local races in south-central Kansas, voters rejected the challenge by left-wing Republican Wichita City Council Member Jeff Longwell to incumbent Karl Peterjohn. Longwell had the endorsement of Wichita Mayor Carl Brewer and all Wichita City Council members except Michael O’Donnell (district 4, south and southwest Wichita). Three Sedgwick County Commission members endorsed Longwell, too. As there is no Democratic contestant, this race is over.

In suburban Andover, voters rejected a proposed property tax increase for schools. Update: After the final canvass of votes, the tax increase passed by two votes.

Sedgwick County voter registration changes: Impact on senate races

During the Kansas primary election season, there have been efforts to recruit Democratic party voters to change their voter registration to Republican in order to participate in Republican party primary races. Kansas National Education Association (KNEA) has asked teachers union members to switch their voter registration in order to vote in Republican primaries. KNEA has asked this on its website and in an email that has received widespread attention.

Former Wichita Mayor Elma Broadfoot has recorded telephone calls urging Democrats to switch party registration so they may vote for moderate Republicans, reports the Wichita Eagle.

Whether this effort will be successful is unknown. But we now know, for Sedgwick County, how many people have changed their voter registration to Republican in recent months.

I took a Sedgwick County voter file obtained in May and compared it to one current as of Friday, which is after the deadline for changing voter registration. In the accompanying table, I counted voters who switched to Republican registration from some other party. I grouped the data by Kansas Senate district, as this is where much of the focus has been. I also present totals for Sedgwick County, as some county-wide races may also be impacted.

Voter registration party changes in Sedgwick County

It’s important to remember that some of these senate districts are not totally within Sedgwick County, and this table includes only Sedgwick County voters. Districts 25, 26, 27, 28, 29, and 30 are entirely within the county, and all voters in these districts are represented in the table.

Numbers in context

Now that we know the number of voters who switched to Republican registration, are these numbers large enough to affect any races? The answer is we simply don’t know. We don’t know why these voters switched to Republican registration. Their motive may be to vote for the moderate candidate, but there could be other reasons, too.

To place these numbers in context, consider the race for senate district 25, which pits incumbent Jean Schodorf against Wichita City Council Member Michael O’Donnell. In this district, 230 voters switched to Republican registration.

In the 2008 primary, 2,435 people voted for Schodorf, but there was no opponent. About 4,000 voted for Les Donovan in his primary, and about the same for Susan Wagle in her district, but again these races were uncontested. In the 2008 general election, 16,016 voted for Schodorf over 9,530 cast for her opponent, for a total of 25,546 votes cast, plus a few write-ins. But general elections, by their nature, have a much higher turnout than primaries.

A better election to compare is the 2004 Republican primary for senate district 30 in east Wichita, when former Wichita Mayor Bob Knight challenged incumbent Susan Wagle in a race that received much attention. Knight received 3,140 votes to Wagle’s 5,624, for a total of 8,764 votes cast.

230 voters switching registration out of a potential vote total of 8,764 is 2.6 percent. Many races are decided by less than that margin. But again, we don’t know the intent of these 230 voters, and while these voters are probably more motivated than most, some may not vote.

We should also note that district 27 had 223 voters switch to Republican affiliation during the same period. Incumbent Les Donovan has no primary opponent. He will face a Democrat in the general election, but party registration doesn’t matter at that time. In district 30, 160 voters switched to Republican registration. Incumbent Susan Wagle has no primary opponent.

It’s also noteworthy that switching to Republican registration is not the only action I observed. For example, in District 25, while 230 voters switched to Republican, 51 Democratic voters switched to Unaffiliated registration, 42 Republicans switched to Unaffiliated, and seven voters became Libertarian party voters. On election day Unaffiliated voters can switch their registration to Republican and vote in the primary.

Finally, there are new voters of all parties, including Republican. The analysis above counts only voters who changed party registration to Republican.

Overall, 2,001 voters in Sedgwick County switched party registration during this two-month period, with 1,126 switching to Republican.

Kansas fourth district poll shows Pompeo lead, little change

A KWCH Television and SurveyUSA poll of candidates for United States Congress from the fourth district of Kansas shows little change from a similar poll about a month ago.

The poll shows Republican Mike Pompeo leading Democrat Raj Goyle by 50 percent to 40 percent. These numbers changed just slightly from the previous survey, which had Pompeo leading 49 percent to 42 percent. Neither of the changes are statistically significant.

Four percent of the voters are undecided.

Other results include Reform party candidate Susan Ducey with four percent, and Libertarian David Moffett with three percent.

SurveyUSA’s commentary is as follows: “Compared to an identical SurveyUSA poll released 1 month ago, Pompeo is up an insignificant 1 point; Goyle is down an insignificant 2. Pompeo has gained ground among the oldest, traditionally the most reliable voters, where he had trailed by 16, now leads by 4. Goyle offsets this by cutting into Pompeo’s lead among middle-aged voters, where Pompeo had led by 34 points, now leads by 20. 18% of Republicans today cross over to vote for Goyle, down from 22% last month; 12% of Democrats cross over to vote for Pompeo, up from 6% last month. Independents today lean slightly toward Goyle, favoring the Democrat by 7 points, up from a nominal 2-point lead 1 month ago.”

Goyle’s campaign has released the results of its own poll from last week, which shows Pompeo leading Goyle by 46 percent to 44 percent, a closer lead than the KWCH/SurveyUSA poll. No details of its methodology were released.

During the primary election, Jean Schodorf’s campaign released surveys that showed her to be leading. In the end, the KWCH/SurveyUSA poll correctly predicted Pompeo as the winner, although it understated the vote he actually received.

During the period between the two KWCH/SurveyUSA polls, Goyle has been actively advertising on television. The Pompeo campaign started advertising on September 9th, just before this poll was conducted.

Kansas fourth Congressional district poll resultsKansas fourth Congressional district poll results

Wink Hartman, Libertarian Party candidate?

As reported by Rebecca Zepick on State of the State KS, former Republican Congressional candidate from the fourth district of Kansas Wink Hartman may be considering another run for that position, this time as nominee of the Kansas Libertarian Party.

Zepick reported the news Saturday in the story Hartman Considering Re-Entering Race For Congress Against Pompeo and Goyle. She appeared later that day by telephone on KNSS Radio’s Jim Anderson Program, as did several others involved in this story.

Anderson’s radio program proved to be a sounding board for several issues surrounding this race. For example: All the Republican Party candidates pledged, several times, to support the winner of the Republican primary. A caller to Anderson’s radio show brought up this point, and reminded Anderson — the host of the show — that he, too, made the pledge. Anderson became agitated, at one point threatening to cut off the caller.

Anderson said that after a certain point, the campaign changed and became negative. Although he didn’t say so explicitly, it is clear that Anderson believes the negativity releases him from his pledge to support the winner of the primary. “I’m not supporting anybody right now,” he told listeners. He repeated this later in the show.

After this, Kansas Libertarian Party Chair and candidate for governor Andrew Gray appeared as a guest, calling in by telephone. Gray said the key to Hartman joining the ticket is Hartman’s ability to — currently or in the future — fit in the “Libertarian mode.”

Michael O’Donnell, a staff member in the Hartman campaign, then appeared by telephone and noted, as had Anderson, that the pledges to support the eventual primary election winner were made before the campaign became negative. True enough.

But where O’Donnell missed the mark is in his assertion that the Pompeo campaign launched the first negative attacks, referring to information made available about Hartman’s Florida home ownership and his Florida voting record. Hartman’s recent Florida voting record was first reported by me on this site.

While this information was not convenient to the Hartman campaign, it did not fall into the category of negative campaigning. This is the type of information voters are interested in. It was a matter of public record. It was all true.

O’Donnell said that the Hartman campaign merely retaliated. But it did much more than that, launching some vicious attacks on Pompeo using the techniques of negative campaigns. Hartman’s campaign escalated the attacks, culminating with a charge against Pompeo that Hartman could not back up with convincing evidence.

The pledges to support the primary winner were not made conditionally. They were absolute. In particular, candidates Anderson and Jean Schodorf need to step up and support Pompeo, the nominee. Evidently Paij Rutschman has made a financial contribution to the Pompeo campaign, but her website doesn’t endorse Pompeo.

Looking forward, O’Donnell said that he wanted to make sure that Hartman didn’t appear as a “sore loser mentality.” Losing a primary and then running on a different ticket qualifies as just that: a sore loser. And Hartman lost the primary election in a big way. Hartman’s support declined in the polls as the election drew closer. From July 1 to July 28 his campaign did not receive a single dollar in campaign contributions other than those made by the candidate himself.

Now Hartman may seek another round.

It’s difficult to see what positive things Hartman would accomplish as the Libertarian Party candidate. His political views are barely compatible with those of libertarians. Hartman seems the type of Republican that pokes fun of libertarians — like me — for their absolute defense of personal liberty (including legalization of all drugs and prostitution), a peaceful and non-imperialist foreign policy, deregulation of marriage (not prohibiting gay marriage), a welcoming approach to immigrants (instead of the fortified border that Hartman advocated during the campaign), and uncompromising opposition to corporate welfare (as reported, Hartman will receive many millions in such welfare in conjunction with his Hartman Arena).

Radical forms of libertarianism, including anarcho-capitalism or even the milder minarchism, seem beyond Hartman’s ability to grasp and understand.

The Kansas Libertarian Party has a decision to make, too. Will it embrace a candidate — one clearly non-libertarian and blemished from running a negative campaign — who can contribute millions to its cause and give the party a big boost in coverage and recognition?

Kansas polls and election results

In the hotly contested Kansas Republican primary elections this year, polls generated a lot of interest. In two Kansas Congressional districts, independent polls did a good job of predicting the vote for all candidates except the two winners, and a candidate’s own poll may have been undermined by large voter turnout.

In a KWCH/SurveyUSA poll of the Kansas first Congressional district, the poll accurately (within the margin of sampling error) predicted the outcomes for all candidates except for victor Tim Huelskamp. The survey predicted 24 percent of the vote for him, and the actual vote was 35 percent. This poll had three candidates tied, so it didn’t predict a winner.

The same group also polled the fourth Congressional district. For three candidates — Jim Anderson, Wink Hartman, and Jean Schodorf, the poll predicted the exact percentage that the candidates actually received. The exception was winner Mike Pompeo. The poll predicted he would win and receive 31 percent of the vote. He did win, and his actual vote total was 39 percent.

An election eve poll by political consulting firm Singularis had mixed results in the fourth district, but is notable in that it predicted eventual winner Pompeo’s vote total closely. The poll indicated 37 percent of the vote, and the actual was 39 percent.

In the fourth district, Schodorf released four polls that her campaign commissioned. Each poll showed her support increasing, until in the third poll, she took the lead. In the fourth poll her lead increased.

When comparing this poll to actual election results, we find that Schodorf’s poll overstated her actual performance by six percentage points. The performance of Anderson and Hartman were understated by six and seven points. For winner Pompeo, the final Schodorf poll understated his performance by 13 percentage points. (These polls did not include candidate Paij Rutschman.)

In a conversation before the election with Schodorf’s pollster, he indicated several reasons why the numbers in her surveys were different than the KWCH/SurveyUSA poll numbers.

One difference between the polls was the source of the voters called by the pollsters. The KWCH/SurveyUSA polls started with a list of households. To determine likely voters, the pollster would ask respondents if they were going to vote. Schodorf’s polls used voter lists as a source, calling only on voters who had a history of voting in August primary elections.

Because many people look at voting as a positive civic duty, it is thought that people will overstate their actual tendency to vote, and this is a reason why polls might decide to use voter history as a selection device, especially in primary elections where turnout is generally low. It is standard practice of campaigns to use voter lists in their voter contact efforts.

But this year voter turnout was high. The Wichita Eagle reported voter turnout in Sedgwick County — home to about 71 percent of the population in the fourth district — was 25 percent. That’s higher than the 19 percent turnout predicted statewide, and higher than in most primary elections.

Considering Republican voters, the Sedgwick County election office reports there are 104,558 registered Republicans, and 49,967 Republican ballots were cast. That indicates a turnout of almost 48 percent, considering Sedgwick County only.

By calling only those with a history of primary voting, many people who voted in this election would not have been sampled by polls based on voter history.

The Schodorf polls were conducted by live operators, while the KWCH/SurveyUSA polls were automated response. This can lead to a difference in the types of people that respond to the poll.

In the Republican Senate primary between Jerry Moran and Todd Tiahrt, the final KWCH/SurveyUSA poll had Moran ahead by 49 to 39 percent, with eight percent undecided. The actual totals were Moran winning with 50 percent to Tiahrt’s 45 percent, so that poll understated Tiahrt’s total by six percentage points while correctly choosing the winner.

Schodorf, Pottorff claim to have cut spending

Two Kansas Republicans — one running for re-election, the other for higher office — both claim to have led the way in cutting the Kansas state budget. These claims, however, are at odds with the facts and both candidates’ records.

Kansas Senator Jean Schodorf is a candidate for the Republican Party nomination for United States Congress from the fourth district of Kansas. A television advertisement states that she “led the effort in the Senate to cut over $1 billion from the state budget.”

In Kansas House District 83 in east Wichita, Jo Ann Pottorff is seeking re-election. In a Wichita Eagle advertisement, she made a similar claim to Schodorf, stating “I forced state government to live within its means by cutting $1 billion in excess spending and voting down attempts to grow government by more than $185 million.”

There are a few ways to look at these claims. First, both of these politicians have big-spending and big-taxing records. In any sort of legislative vote rating system that rewards fiscally conservative votes, these two women rank very low year after year. Both voted for the spending programs that grew Kansas spending so much over the last five years that cuts in the rate of growth were necessary this year.

But these “cuts” were not cuts in actual spending. They were cuts in planned spending. The budget that both candidates voted for this year increased state spending by $200 million over the past year.

By the way, both candidates voted to increase the statewide sales tax this year. They attempt to justify this vote by saying that if the state didn’t increase taxes, it would force local governments and school districts to increase property taxes.

That would be the case only if schools kept spending at current levels. There are plenty of things schools could have done to save money — including implementing school choice programs which save money — but neither of these candidates considered that politically feasible. Their generous campaign contributions from the school spending lobby may have helped form their thinking on this issue.

In the chart below, you can see that Pottorff has had a few years in which she earned respectable vote ratings. But Schodorf has not.

Voters who desire conservative candidates should not be fooled by the efforts of both Schodorf and Pottorff to portray themselves as fiscally conservative legislators. It may turn out that their constituents prefer their left-wing voting records, and it’s the right of voters to do so. But voters should understand the choice they’re faced with.

Kansas legislative vote ratings for Jo Ann Pottorff and Jean SchodorfKansas legislative vote ratings for Jo Ann Pottorff and Jean Schodorf

Final Kansas fourth Congressional district polls indicate close race

Update: An election eve poll has been released. Click on Kansas election eve poll.

Final polls indicate a close race in the contest for the Republican Party nomination for United States Congress from the fourth district of Kansas. Two candidates, Wichita businessman Mike Pompeo and Kansas Senator Jean Schodorf, are virtually tied for the lead as the campaign enters its final few days.

The candidates for this nomination and their campaign websites are Wichita businessman Jim Anderson, Wichita businessman Wink Hartman, Wichita businessman Mike Pompeo, Latham engineer Paij Rutschman, and Kansas Senator Jean Schodorf.

Schodorf campaign poll

Candidate Jean Schodorf has released a survey that shows her, again, in the lead. The poll was conducted on behalf of the Schodorf campaign on July 29th. It shows her in the lead with 30 of the vote, with Pompeo just behind and within the margin of sampling error, at 26 percent.

Hartman is in third place with 16 percent, and Anderson follows with seven percent. As in the past, Schodorf’s polls didn’t include Rutschman. 21 percent are undecided, which is again — as it has always been with Schodorf’s polls — much higher than produced by independent polls.

The news release accompanying this canvass didn’t give many details, but Schodorf’s past polls conducted by the same consulting firm have been live operator surveys of 400 voters. Likely primary voters are selected by using voter lists.

As with all polls produced on behalf of a candidate, we need to remember that surveys produced and released by campaigns are just that, and the results would probably not be released by a campaign if the results did not portray the candidate favorably.

Kansas fourth Congressional district poll resultsKansas fourth Congressional district poll results

State of the State KS poll

State of the State KS in conjunction with Fort Hays State University and its Docking Institute of Public Affairs has released a poll of the Kansas first and fourth Congressional districts. The results for the fourth district are at State of the State KS Poll: Schodorf And Pompeo Take Lead In Campaign For Congress in Fourth District.

In the poll, Schodorf leads with 22 percent, Pompeo has 19 percent, Hartman has 13 percent, Democrat Raj Goyle as 11 percent, Anderson with six percent, and 28 percent are undecided.

This poll differs from others in that Goyle, one of the two Democratic Party candidates, was included with the Republicans in the survey question.

This survey used a smaller sample size, and as a result the margin of sampling error is larger at eight percent.

Commentary on the results of this survey by Fort Hays University Political Science Professor Chapman Rackaway concluded: “In short, Pompeo and Schodorf seem to be the two strongest candidates with Hartman struggling to keep up after a very strong opening to his campaign. Pompeo has established himself as the candidate of choice for conservatives, regardless of what issue the respondent self-identifies on. Schodorf’s lead among women and moderates has put her ahead, only slightly.”

The State of the State KS survey asked many background questions, and they may be read at State of the State KS.

Averaging the Kansas fourth district polls

Taking the last three available polls (the two described above and the KWCH/SurveyUSA poll) we find a very close race between two candidates for this nomination. Pompeo and Schodorf lead with 25 percent, with Hartman at 17 percent and Anderson at nine percent. 18 percent are undecided.

Kansas fourth Congressional district poll results averagedKansas fourth Congressional district poll results averaged

Kansas fourth district poll shows tightening race with Pompeo in lead

KWCH Television in Wichita and SurveyUSA have released a poll of candidates seeking the Republican Party nomination for United States Congress from the fourth district of Kansas.

The survey shows support for Wichita businessman Jim Anderson and Kansas Senator Jean Schodorf on the rise, while the numbers for Wichita businessman Wink Hartman continue to decline. The support for Wichita businessman Mike Pompeo also fell slightly, well within the poll’s level of sampling error.

The numbers have Pompeo leading with 31 percent, Schodorf with 24 percent, Hartman with 23 percent, Anderson with 13 percent, and Latham engineer Paij Rutschman at two percent.

Undecided voters are at six percent. The poll was conducted July 26th through 28th. The margin of sampling error is 3.5 percent.

Interestingly, this poll has Schodorf at the same level of support as shown in her own internal poll released earlier this week. Her poll, however, showed her in first place with 24 percent support, with Pompeo in second place at 21 percent. That difference is within the poll’s sampling error.

The Schodorf poll had 32 percent of voters as undecided, which is — and has been the case with all of Schodorf’s surveys — several times higher than the six percent undecided measured by SurveyUSA.

State of the State KS is working on a poll that should be released today or tomorrow. This will provide another independent measure of voter sentiment as election day — August 3rd — draws near.

Some voters have already voted. At yesterday’s meeting of the Sedgwick County Commission, Election Commissioner Bill Gale said that about 13,000 mail ballots have been sent to voters, with about half being returned already.

In the 2008 primary election, 36,724 ballots were cast in Sedgwick County. With 6,500 ballots already returned, this means that at least 17 percent of voters (assuming the same turnout as in 2008) have already voted.

For the fourth Kansas Congressional district, about 71 percent of the population is in Sedgwick County.

On the Democratic Party side of this race, it appears that the television advertisements appearing for Raj Goyle are working. He trailed in the last poll two weeks ago, but now leads opponent Robert Tillman 63 percent to 19 percent, with 18 percent undecided. Two weeks ago Tillman led Goyle 40 percent to 36 percent.

Kansas fourth Congressional district poll resultsKansas fourth Congressional district poll results

Kansas fourth Congressional district campaign finance reports

Candidates for the Republican Party nomination for United States Congress from the fourth district of Kansas have filed campaign finance reports for the first two weeks of July and some last-minute reports since then.

The reports show Wichita businessman Wink Hartman continuing to self-finance his campaign, with $0 in outside contributions collected in July. His campaign continues to spend at a rapid pace.

The candidates for this nomination and their campaign websites are Wichita businessman Jim Anderson, Wichita businessman Wink Hartman, Wichita businessman Mike Pompeo, Latham engineer Paij Rutschman, and Kansas Senator Jean Schodorf.

Here is a summary of FEC campaign finance reports for the first part of July 2010:

Kansas Fourth District Republican campaign finance reports,
July 1, 2010 through July 14, 2010

               Anderson  Hartman   Pompeo  Schodorf
Contributions    2,060         0   49,347    14,891
Candidate loans      0   289,537        0         0
Expenditures     2,240   427,872  207,830    23,172
Cash balance     4,049    40,958  286,032     8,823

Figures for Rutschman were not available at the FEC data site.

Figures that stand out in this report include zero dollars raised by the Hartman campaign from individual contributions. All money raised during this period came from the candidate himself.

Also, Hartman spent more than twice as much as the second-largest spender.

Pompeo has, by far, the largest cash balance as of July 14. Normally this would be a positive factor as the campaign proceeds to election day. Hartman’s smaller cash balance, however, has little of the normal meaning associated with it, as the candidate makes frequent contributions to his campaign as funds are required. This is characteristic of self-financed campaigns.

From the start of the election cycle through July 14, 2010, the numbers look like this:

Kansas Fourth District Republican campaign finance reports,
through July 14, 2010

              Anderson   Hartman   Pompeo Rutschman Schodorf
Contributions  38,924    141,949  935,087       80   50,338
Candidate loans 3,275  1,563,137        0   30,000   29,006
Expenditures   37,301  1,664,129  649,054   24,464   70,521

(Rutschman’s figures are through June 30, 2010)

In this table we see the largely self-financed Hartman campaign outspending all other candidates. His campaign has spent more than twice as much as all other campaigns together.

This still isn’t the entire story, as candidates are filing “48 hour notice” reports of last-minute contributions (expenditures are not included in these filings). Through July 28, 2010, here are the numbers:

           Anderson   Hartman  Pompeo
Total        5,100    348,500  35,700

(Schodorf and Rutschman have not filed any of these reports.)

In the case of Hartman, the total of $348,500 is all from the candidate himself. Overall, the Hartman campaign has raised $2,053,586, with 93 percent from candidate self-financing.

According to OpenSecrets.org, a project of the Center for Responsive Politics, the average amount spent by winning candidates in 2008 for the U.S. House of Representatives was $1,372,591. Hartman is well over this figure.

Each House district has roughly the same population, although the cost of running campaigns varies widely due to the differing characteristics of districts.

Self-financed candidates

As the Kansas fourth district has one candidate who is self-financed, let’s take a look at self-financed candidates and their characteristics.

In writing about political scientist Jennifer A. Steen and her book, Self-Financed Candidates in Congressional Elections (University of Michigan Press, 2006), Bruce Bartlett wrote this:

One of her findings is that the necessity of asking people for contributions is valuable to a candidate, especially inexperienced ones. She thinks this is mainly because self-financing keeps bad candidates from being weeded out of contention by a lack of contributions. But I think it also results because once people have given someone a campaign contribution they become invested in that candidate and are more willing to vote for him or her on Election Day and to work on his or her behalf.

Voters also resent candidates who appear to be trying to buy an election. Self-financed candidates may be independent of special interests, but they also often appear aloof from the concerns of average voters. Having to ask people for money forces a candidate to take their feedback, thus learning about their concerns directly rather than filtered through pollsters and consultants.

In her book, Steen writes: “They [self-financers] are also less likely to engage in what Richard Feuno calls ‘two-way’ campaigning, or interaction between the candidate and constituency, which thus entails some degree of learning and responsiveness on the candidates part.”

Perhaps as a result, self-financed candidates don’t have a very good track record of winning elections. Steen found that for competitive U.S. House of Representative districts, candidates who are “extreme self-financers” (Hartman falls in this category) won 37 percent of primary election contests. That winning percentage falls to 31 percent in general elections.

Voters are interested in what type of representative a candidate would make. Do self-financed candidates differ from other candidates once in office? Steen writes: “These differences do not recommend self-financers as representatives. They are quite unlike the vast majority of citizens, even citizens in more affluent districts, and they are less likely than non-self-financers to confront and engage the citizens they seek to represent.”

Self-financed candidates usually claim that since they have a source of campaign funds independent from the usual sources — which these candidates usually describe as “corrupt” or undesirable in some other sinister way — they can act in the best interests of all their constituents once in office. But Steen found differently: “However, once elected most self-financers assimilate very rapidly to the norms of fund-raising — only a small percentage continue to resist the charms of campaign contributors.”

Kansas fourth Congressional district campaign financeKansas fourth Congressional district campaign finance

Hartman ad claims remain elusive

The claims made last week in a campaign advertisement by Wichita businessman Wink Hartman remain elusive and largely unproven.

Hartman is running for the Republican Party nomination for United States Congress from the fourth district of Kansas. The other candidates and their campaign websites are Wichita businessman Jim Anderson, Wichita businessman Mike Pompeo, Latham engineer Paij Rutschman, and Kansas Senator Jean Schodorf.

Scott Paradise, the Hartman campaign manager, will not accommodate my request to view the documents that he says prove the allegations in the ad.

Paradise said he is “not happy” with some things I’ve written about Hartman. I don’t imagine he is, as I’ve written several articles critical of Hartman. But I offered to go to the campaign office and look at the documents and hear what the campaign had to say.

What voters are left with is a last-minute inflammatory charge made by Hartman against Pompeo without having evidence of the charges. We know this is true because the campaign wasn’t able to produce evidence immediately and had to wait for the accuser to supply documents. That evidence, when examined by two Wichita Eagle reporters, appeared to indicate that Thayer Aerospace, Pompeo’s company, made “late, and in some cases reduced, payments” to one of its suppliers.

The accuser says the company didn’t pay and drove him out of business and into bankruptcy. There’s a lot of distance between these two claims.

We also know that the Hartman campaign ran the ad without identifying the businessman, perhaps hoping that no one would be able to identify him and investigate his claims.

Florida issue miscast

At issue also has been Hartman’s residency. Critics say that by claiming a “homestead” property tax exemption on a home he owns in Florida, Hartman became a Florida — not Kansas — resident.

There’s also been discussion as to whether he filed income taxes as a Kansas or Florida resident. Hartman says he’s paid all his taxes in Kansas.

But voting is something over which there is no controversy. As first reported on this site, Hartman most recently voted in Florida. Both he and his wife voted in Florida’s general election and presidential preference primary election in 2008.

They didn’t register to vote in Kansas until July of last year.

Voting by mail is popular in Sedgwick County, with 36 percent of the ballots cast in the November 2008 general election cast by mail. It doesn’t cost anything more than a postage stamp and the desire to cast your vote where you feel your political home is.

Schodorf poll shows her campaign in lead

Yesterday the campaign of Kansas Senator Jean Schodorf released a poll that shows her in the lead in the race for the Republican Party nomination for United States Congress from the fourth district of Kansas.

The candidates and their campaign websites are Wichita businessman Jim Anderson, Wichita businessman Wink Hartman, Wichita businessman Mike Pompeo, Latham engineer Paij Rutschman, and Kansas Senator Jean Schodorf.

The poll was conducted on July 22, before the Wichita Eagle editorial board announced its endorsement of Schodorf. It shows her with 24 percent of the vote. Pompeo is in second place with 21 percent, Hartman in third with 16 percent, and Anderson with seven percent.

The question asked of voters, according to Schodorf, is “If the election for congress were today, would you be voting for Jean Schodorf, Jim Anderson, Mike Pompeo, or Wink Hartman”? Candidate names are rotated. The poll question does not included candidate Rutschman.

The 400 poll respondents were selected from those who had voted in the last two primary elections in the fourth district. The campaign says that “This number of interviews produces survey results that are accurate at the 95% level of confidence.” No margin of error was given for this confidence level, but in a conversation with Jim Yonally of Jayhawk Consulting Services, the firm that conducted the poll, he said the sampling error was four percentage points.

That means that Schodorf’s lead of three percentage points is within the margin of sampling error.

As with all polls produced on behalf of a candidate, we need to remember that surveys produced and released by campaigns are just that, and the results would probably not be released by a campaign if the results did not portray the candidate favorably.

Schodorf’s three publicly-released polls could not have turned out better for the candidate. Starting low, each poll has showed her increasing her numbers, until this poll shows her in the lead.

Besides being the first poll showing Schodorf in the lead, her campaign polls have always differed from the independent polls in showing a very high number of undecided voters. Yonally said he believes that his firm’s practice of using human operators to conduct the survey produces more accurate results than do automated polling systems.

The poll also indicates Pompeo’s support increasing, while Hartman’s drops.

KWCH Television will release an independent SurveyUSA poll of the fourth district this week, I am told.

Kansas fourth Congressional district poll resultsKansas fourth Congressional district poll results

Wink Hartman ad a bust, disservice

On Tuesday the Wink Hartman campaign began running a television advertisement that contains claims about Mike Pompeo that, so far, are unsubstantiated. See Hartman ad malicious and false, says Pompeo and Pompeo Disputes Claims In Hartman Ads, Demands Hartman Show Evidence.

Hartman’s campaign manager said he would supply proof of the claims made in the ad by Daniel Lind, a Wichita businessman, by late Wednesday. As of Friday, little in the way of evidence has been provided. The Hartman staff says it is gathering documents and waiting for a bank to provide documents.

So what can we make of this advertisement, and more importantly, the candidate pacing the ad?

One thing we know for sure is that the Hartman campaign prepared and aired the ad without having evidence of the claims. If it had evidence, it should have been able to provide it immediately upon request.

Whether the claims turn out to be true or not, this unpreparedness we can be certain of. This is evidence of recklessness of Hartman, his campaign, and the people — including political consultant Axiom Strategies — involved in his election effort.

Axiom is a controversial political consulting firm. On its website, it boasts of news coverage of the campaigns it and its head, Jeff Roe, have run: “Controversial campaign tactics are the stuff of political legend,” “Known for his bare-knuckle campaign tactics,” “Political consultant plays hardball and scores big: The pugnacious campaign tactics…”

Further, these attack ads that are sprung on the voting public at the last moment are a public disservice. With little time to investigate the claims — and with the Hartman campaign dragging out the process — voters are understandably frustrated.

Additionally, the claim made in this advertisement has nothing to do with public policy. Even if it was true.

Recent ads placed by candidates for the Republican Party nomination for United States Congress from the fourth district of Kansas have been positive ads, with candidates talking about themselves and their plans if elected to Congress.

That’s true of all campaigns except the Hartman campaign. He continues to sling mud at the candidate he considers his chief rival. Voters ought to consider this when deciding whom to vote for.

Remember that political ads are now accompanied the statements of candidates that they approve the ads: “I’m Wink Hartman and I approve this ad.”

The candidates for this nomination and their campaign websites are Wichita businessman Jim Anderson, Wichita businessman Wink Hartman, Wichita businessman Mike Pompeo, Latham engineer Paij Rutschman, and Kansas Senator Jean Schodorf.

Hartman ad malicious and false, says Pompeo

The campaign for the Republican Party nomination for United States Congress from the fourth district of Kansas has been marked by some hard-hitting commercials. Often commercials are based on subjective claims, such as “Vote for me! I’m great and my opponent is terrible!”

Now the Wink Hartman campaign has aired a television advertisement that leading rival Mike Pompeo says is objectively false.

In the ad, an unidentified man says that Thayer Aerospace, a Wichita manufacturing company that Pompeo once headed, failed to pay the man’s small business. As a result the man had to declare bankruptcy.

In a statement read by Pompeo at a press conference today, Pompeo said that they were able to identify the man as Daniel Lind, and the company as Machining Concepts, Inc.

Pompeo said Thayer Aerospace had purchased products from the company, and that all bills were paid: “The total volume of the work performed by that company for Thayer Aerospace was approximately $351,000. All of the obligations associated with that work were paid for by Thayer Aerospace.”

Pompeo said that evidence of the falsity of Lind’s claim of non-payment by Thayer include Lind’s bankruptcy filing — referred to by Lind in the advertisement — in which Thayer Aerospace is not mentioned. In the filing, under “Accounts Receivable,” Lind marked “none.” A debt owed to Lind’s business should have been listed here.

In a Wichita Eagle news story, Lind stands by his claims. He says he didn’t sue Thayer over the debt because he couldn’t afford it. While that may be true, it wouldn’t have cost anything to list Thayer on the bankruptcy filing.

Pompeo said he will ask television stations to stop airing the ad based on the falsity of the claims made within. But as explained in a Time magazine article and confirmed in a conversation with a former television station manager, media outlets do not have the ability to pick and choose which candidate advertisements they broadcast. Explains Time: “Broadcasters are actually obligated to run [candidate] ads, even those known to be false. Under the Federal Communications Act, a station can have a blanket policy of refusing all ads from all candidates. But they cannot single out and decline to air a particular commercial whose content they know to be a lie.”

As of this moment, the Hartman campaign has not responded to requests for documentation or other information regarding Lind’s claims.

The candidates for this nomination and their campaign websites are Wichita businessman Jim Anderson, Wichita businessman Wink Hartman, Wichita businessman Mike Pompeo, Latham engineer Paij Rutschman, and Kansas Senator Jean Schodorf.

Wink Hartman on bailouts, and his own

Wichita businessman Wink Hartman, a candidate for the Republican Party nomination for United States Congress from the fourth district of Kansas is opposed to government bailouts. Strongly so.

At a January 15th candidate forum, he said “I am one hundred percent against bailouts of any type, shape, or form. Of all the companies I run, not one time has anybody, including the government, come through that front door and said ‘Wink, you screwed this thing up but I want to write you a check anyway.'”

Contradicting Hartman’s claim is his 1987 personal bankruptcy filing. It qualifies as a bailout. It’s true that during the process no one wrote him a check, so his claim in the forum is correct on a certain level. But when debt is canceled, it’s just like someone wrote a check. It has the same economic effect for the debtor.

And while Hartman said that no one — and emphasizing the government — has written a check, it’s government debt that was canceled, according to bankruptcy court records. Both the federal government and the State of Kansas received only 12 percent of their claims against Hartman for taxes owed.

Investigations by myself and others indicate that Hartman may have repaid some of his creditors, but not all. It’s difficult to tell, as the bankruptcy filing was 23 years ago.

But even if Hartman did repay all creditors, the government, through the bankruptcy laws, stepped in and gave him the reprieve of time. That’s a bailout, by any measure.

The candidates for this nomination and their campaign websites are Wichita businessman Jim Anderson, Wichita businessman Wink Hartman, Wichita businessman Mike Pompeo, Latham engineer Paij Rutschman, and Kansas Senator Jean Schodorf.

Schodorf poll indicates three-way tie in Kansas fourth Congressional district

Today the campaign of Kansas Senator Jean Schodorf released a poll that shows her in a three-way tie with Wichita businessmen Wink Hartman and Mike Pompeo in the race for the Republican Party nomination for United States Congress from the fourth district of Kansas.

The candidates and their campaign websites are Wichita businessman Jim Anderson, Wichita businessman Wink Hartman, Wichita businessman Mike Pompeo, Latham engineer Paij Rutschman, and Kansas Senator Jean Schodorf.

In answering a telephone question “If the election for congress were today, would you be voting for Jean Schodorf, Jim Anderson, Mike Pompeo, or Wink Hartman?” with the names rotated, Schodorf’s survey shows Hartman in the lead with 19 percent, Schodorf with 18 percent, Pompeo with 16 percent, Anderson at nine percent, and 39 percent undecided.

As with all polls produced on behalf of a candidate, we need to remember that surveys produced and released by campaigns are just that, and the results would probably not be released by a campaign if the results did not portray the candidate favorably. Without knowledge of the questions being asked, there is always the possibility that a survey is a “push poll,” meaning an instrument designed to influence participants and produce a desired result.

The Schodorf campaign released the text of the question asked, but other questions asked — or statements made — before the reported question can influence the response.

The difference between the Schodorf campaign poll and an independent effort conducted last week can be seen in two places: First, Schodorf — in her campaign’s results — is in a statistical tie with Hartman and Pompeo, and the number of undecided voters in Schodorf’s poll is much higher than in the SurveyUSA poll from last week. In that poll, undecided voters were nine percent of the total. That’s less than one-fourth of the undecided voters found in the Schodorf poll.

Kansas fourth Congressional district poll resultsKansas fourth Congressional district poll results

Kansas fourth district candidates on spending and deficit reduction

In a June 22nd forum of candidates for the Republican Party nomination for United States Congress from the fourth district of Kansas sponsored by the Wichita Metro Chamber of Commerce, candidates were asked about their plans to reduce the federal deficit and national debt.

The candidates and their campaign websites are Wichita businessman Jim Anderson, Wichita businessman Wink Hartman, Wichita businessman Mike Pompeo, Latham engineer Paij Rutschman, and Kansas Senator Jean Schodorf.

A question by moderator Steve McIntosh recited the current large debt and deficit figures, noted that Medicare and Social Security are headed down an unsustainable path, and said that Americans are worried about the negative effects of letting the Bush tax cuts expire. What is your plan for reducing the deficit and debt, while keeping taxes low enough to allow for economic growth?

Answering first, Rutschman said we need to look at our government agencies and make sure they are operating effectively and efficiently. She said we should start balancing the federal budget. She told the audience that we should look at Social Security and Medicare to see where we can start reducing these programs, and develop a long-term plan for handling the upcoming retiring generation.

Next, Schodorf said she had a plan for national economic development and growth, saying first that we need a balanced budget amendment. She said that the bipartisan commission on deficit reduction is really just a paper tiger, and what we really need are experts in different fields to work together to recommend how to reduce the deficit. She said the federal government needs to reduce its spending, recommending a 5% across-the-board cut if possible. She said we need to keep the Bush tax cuts in place.

Anderson told the audience that we need to reduce the size of government, starting with an overhaul of the tax system by replacing their current income tax with the FairTax. The fair tax, he said, is the best way to generate revenue for limited government, noting that the current tax code is the source of many of our problems. States should take care of their own needs, he added, and we should eliminate the system of earmark spending. He also said we need to look at each federal program, and if it is not constitutional, it should be eliminated.

Hartman said we need to get control of our government, and that one way to get started immediately would be a balanced budget amendment. He also believes in the FairTax. He said that 41 cents of every dollar government spends is borrowed and must be repaid at some time. The Bush tax cuts should be continued, he said, as they worked well once. He said he is also concerned about estate taxes, especially their impact on family farms. He said that a larger federal government has never — and will never — create jobs.

Pompeo said that growing the economy, creating a tax base that is broader and larger, is the first way that we can reduce the deficit. The second way is to reduce spending. He told the audience he supports eliminating earmarks, but noted that earmarks are a relatively small part of the budget. Entitlements, he said, are the real problem, and that we should start by repealing the recently enacted healthcare entitlement. On Social Security, Pompeo said he supports a plan developed by Wisconsin Congressman Paul Ryan. For people 55 years of age and over, there would be no impact, he said, but benefits for younger people would be reduced, adding that the promised benefits may really be a false promise. On the federal Department of Education, Pompeo said it is incomprehensible to him that send a dollar to Washington, only to get $.64 back along with instructions on how to run our schools. He also said we should reduce capital gains taxes by at least 50%, to create an incentive for capital.

Analysis

Schodorf’s concern for spending and taxes must be balanced against her record in the Kansas Senate, which is a very liberal voting record. She voted for the big-spending budget this year, and voted to raise the statewide sales tax by one cent per dollar.

The FairTax, which many of these candidates support, is probably a better tax system than the system currently in place, but it does not address the issue of spending. According to FairTax.org, “Bottom line is that the 23% rate works it replaces the revenue generated by the repealed taxes, and maintains the real value of federal spending.” In other words, the FairTax is calibrated to provide the same revenue to government. For those looking to reduce the amount government takes in taxes — no matter what form — and to reduce government spending, the FairTax is not the solution.

The idea of eliminating federal programs that are not constitutional is also appealing to limited government advocates. The reality, however, is that every spending program that’s in place — with the exception of newly-passed legislation that hasn’t yet been challenged in the courts — has passed constitutional muster. The Constitution means what the Supreme Court says it means, after all.

Hartman’s concern for federal estate taxes is well-placed, especially, as he noted, in Kansas, where many families’ assets are in the form of land and other agriculture assets.

Pompeo, as he has in other forums, said he supports the Paul Ryan plan, known as the Roadmap for America’s Future. This is a specific set of proposals promoted by Ryan, the ranking member of the House Budget Committee and a rising star among conservatives. The plan goes farther than Pompeo did regarding taxes on capital gains, recommending eliminating the tax on capital gains entirely.