Report from Topeka, June 22, 2005

Here’s a report on the special session of the Kansas Legislature from Karl Peterjohn, Executive Director of the Kansas Taxpayers Network. Thanks to Karl for his fine reporting and commentary.


Here’s the start of a blog for KTN and any other quality Kansas sites interested in this state’s fiscal crisis thanks to our left-wing, prejudiced Kansas supreme court. For the details on the court’s conflicts of interest see the recent KTN editorial column discussing Justice Nuss and Justice Allegrucci’s need to recuse themselves in the school finance litigation.

The house is likely done for the day (June 22) with all eyes watching efforts to put together a bill that would raise state school spending beyond the $143 million sought by the court and try and turn Kansas into a state with franchise casinos dotting the state. Kansas would be the only state that I know of where the casinos would be “owned” by the state and then contracted out to operators.

In theory there is a one subject limitation on any bills but once the court threw the rule book out the window it seems like anything goes and this bill could have gambling, appropriations, and new plumbing for the judicial center (tongue-in-cheek on last item) combined into one fat piece of legislation.

What makes this special session unique is the remodeling of the statehouse has forced the Kansas senate into meeting in the third floor chambers that once upon a time belonged to the Kansas Supreme Court. I jokingly asked if black robes were being issued to each senator. It is standing room only inside the chamber with senate leaders seated like judges at the front of the room and the backbench senators seated at a table in front of their leaders.

This is quite a change from the usual senatorial operations at the statehouse. It does seem appropriate in an era of judicial edicts setting and perhaps even determining the legislative outcome. First we have a bunch of black robed judges behaving like legislators. Now we have the Kansas senate meeting in the Old Supreme Court Chamber.

There seems to be a determination on the part of the liberal senators in both parties that a spending package of expanded gaming and reduced cash balances will allow them to expand spending according to the order from the court. Some senators want to expand the spending well beyond the court’s edict. I guess that will show them that they are not subservient to their judicial masters!

House members as a whole are not nearly as submissive as the senate. However, it is not clear what will be offered in the way of constitutional amendments to stick it to the court and defend the legislature’s constitutional and historic powers. The problem is that any amendment needs 27 senate votes and 84 house votes to be sent to the voters. that is a very difficult threshold to cross. There are hallway discussions on statutory provisions that would make it more difficult for the court to continue to meddle in legislative matters. Sadly, all too many legislators appear ready willing and able to submit to whatever nonsense the court ordered June 3 and could order in the future.

The school spending lobby held a rally this morning but the statehouse was ready for an anti-judicial tyrrany rally over the lunch hour. Elsewhere in the statehouse it looked like it was spend and fritter the taxpayers money away as usual. More details in an upcoming post.

Nationally, the Wall Street Journal editorial page has an editorial today entitled, “Jayhawk Judgment,” and sub-titled, “A constitutional showdown oer the power to tax.” It is excellent and I recommend it highly. Here are a couple of fair use quotes from it: “…under the Constitution’s separation of powers doctrine, the legislative branch makes the laws and the judicial branch interprets them. No so in Kansas these days. There the state Supreme Court has commanded that the legislature must increase spending on the schools, as well as the taxes to pay for it, by precisely $853 million over the next two years.” Later it says, “The legislature is sworn to abide by the Kansas Constitution, but that doesn’t mean abandoning its own powers of the purse to an unelected judiciary. This is a showdown between the branches of government, and the legislature has every right to protect its own constitutional prerogatives from judicial intrusion. In this case that means protecting Kansans from judicially ordered, and thus unconstitutional, tax increase.”

This is a national warning that any business looking to locate or expand in Kansas with our runaway courts and unlimited tax and spend policies would be crazy. Our neighbors will benefit from our spendthrift legacy. In fact there is vivid evidence of this legacy.

It is interesting to note that an important and largely unknown former Kansan died yesterday. The inventor of the integrated circuit chip Jack Kilby, originally from Great Bend, died at 81. This 2000 Nobel Laureate is an excellent example of a former Kansan who grew up here and moved elsewhere, like to Texas as in Texas Instruments to pursue his career. We graduate a lot of Jack Kilby’s from Kansas who return as regular “Kansas tourists” visiting family and friends over a week in summer or during the holiday season at Thanksgiving and Christmas. This is part of the price Kansas pays for being a high tax and big government state that regularly stifles entrepreneurship with the highest business property taxes and high corporate income taxes that were strongly criticized by Scott Hodges, the head of the Tax Foundation, at a Topeka forum June 14. Our property, income, sales, and excise taxes are lousy too. See other parts of KTN’s web site: www.kansastaxpayers.com for details.

How teaching math is politicized in public schools

The Wall Street Journal, in an article titled “Ethnomathematics” (June, 20, 2005, available at this link, although registration may be required) tells us of the transformation of mathematics from a universal language and tool for understanding and problem-solving to a “tool to advance social justice.”

For example:

In a comparison of a 1973 algebra textbook and a 1998 “contemporary mathematics” textbook, Williamson Evers and Paul Clopton found a dramatic change in topics. In the 1973 book, for example, the index for the letter “F” included “factors, factoring, fallacies, finite decimal, finite set, formulas, fractions, and functions.” In the 1998 book, the index listed “families (in poverty data), fast food nutrition data, fat in fast food, feasibility study, feeding tours, ferris wheel, fish, fishing, flags, flight, floor plan, flower beds, food, football, Ford Mustang, franchises, and fund-raising carnival.”

Now mathematics is being nudged into a specifically political direction by educators who call themselves “critical theorists.” They advocate using mathematics as a tool to advance social justice. Social justice math relies on political and cultural relevance to guide math instruction. One of its precepts is “ethnomathematics,” that is, the belief that different cultures have evolved different ways of using mathematics, and that students will learn best if taught in the ways that relate to their ancestral culture.

Another topic, drawn directly from ethnomathematics, is “Chicanos Have Math in Their Blood.” Others include “The Transnational Capital Auction,” “Multicultural Math,” and “Home Buying While Brown or Black.” Units of study include racial profiling, the war in Iraq, corporate control of the media, and environmental racism.

It seems terribly old-fashioned to point out that the countries that regularly beat our students in international tests of mathematics do not use the subject to steer students into political action. They teach them instead that mathematics is a universal language that is as relevant and meaningful in Tokyo as it is in Paris, Nairobi and Chicago. The students who learn this universal language well will be the builders and shapers of technology in the 21st century. The students in American classes who fall prey to the political designs of their teachers and professors will not.

If you do not want your children to attend schools where this type of mathematics is taught, you may not have much choice if your family is of modest means. If you want to send your children to a schools where meaningful, traditional mathematics is taught, you may not be able to because of the near-monopoly that government has on schools. It is time to end the government’s monopoly on education and bring meaningful schools choice to parents. Parents who are happy with the type of education the government is presently providing will still have that available for their children, if that is what they want.

How children lose in the Kansas Legislature’s special session

USD 259 (Wichita) public schools superintendent Winston Brooks plans to use the majority of the anticipated increase in school funding to reduce class size. Evidence cited in other articles on this website show that smaller class sizes don’t produce better educational outcomes for students.

Because the conventional wisdom is that smaller class sizes are good for students, the extra money and smaller class sizes will be saluted as a victory for the children. Editorial writers, school administrators, teachers, and those who don’t care to confront facts will thank the Kansas Supreme Court and Kansas Legislature for saving the children.

The sad fact is that this seeming victory, a victory which does nothing to help children, will delay desperately needed reform for another year. In all likelihood reform will be delayed even longer, as if the legislature accedes to the court’s demand this year, it may also do so next year, when the court has called for even more spending.

Who benefits from smaller class size? The teachers unions do. Smaller class sizes mean a lighter workload for current teachers. More teachers (paying more union dues) need to be hired, as is the plan in Wichita.

But as mentioned earlier, smaller class size doesn’t help the students. That’s the danger in spending more on schools. It seems like the additional money should help the schools, and those who procure the money are treated as heroes. This illusion of a solution delays the reform that is badly needed.

What would truly help children? Overwhelming evidence points to school choice. As Harvard economist and researcher Caroline M. Hoxby said about the school voucher program in Milwaukee:

From 1998-1999 onwards, the schools that faced the most competition from the vouchers improved student achievement radically–by about 0.6 of a standard deviation each year. That is an enormous, almost unheard-of, improvement. Keep in mind the schools in question had had a long history of low achievement. Yet they were able to get their act together quickly. The most threatened schools improved the most, not only compared to other schools in Milwaukee but also compared to other schools in the state of Wisconsin that served poor, urban students.

Milwaukee shows what public school administrators can tell you: Schools can improve if they are under serious competition.

Why, then, don’t we have school choice in Wichita? The teachers unions and education establishment are against it. They don’t want to face the same type of free market forces that the rest of us face. They are in charge of educating children, they tell us they are doing the best they can, that everything they do is for the children and only the children, but they oppose desperately needed reform.

Tax Abatements For All

Recently I wrote about the Mississippi Beef Plant (The Mississippi Beef Plant Has a Lesson For Us) and its spectacular costs to the taxpayers of Mississippi. I wondered if there were less spectacular failures that we didn’t know about because they weren’t reported in the news media. Failures in this context could mean a situation where the taxpayers have to make good on a bond or debt that the benefiting company didn’t pay, or it could mean a situation where the company doesn’t default, but fails to deliver on the promised economic development activity.

In an article in the June 15, 2005 Wichita Eagle titled Stalled Firms Keep Tax Breaks we learn of two failures of the second type. The two companies in question, The Coleman Company and McCormick-Armstrong, failed to deliver on their promises to add jobs in exchange for property tax abatements. Coleman, in fact, employs 114 fewer people than at the time the bonds were issued.

Why do governments grant companies tax abatements? It’s simple. When companies pay less tax, they have the opportunity to invest more. Tax abatements are tacit recognition that the cost of government is onerous and serves to decrease private economic activity and investment.

Shouldn’t we lower taxes for everyone, instead of only for the chosen few companies that are in a position to receive political favors from local governments?

The cthics case against Justice Donald L. Allegrucci

I have filed an ethics complaint against Kansas Supreme Court Justice Donald L. Allegrucci. This complaint is on the agenda of the July 1, 2005 meeting of the Kansas Commission on Judicial Qualifications.

I happen to disagree with the ruling the Kansas Supreme Court made in the case cited in my complaint. I have been asked whether I would have filed the same complaint if I had agreed with the court’s ruling. The answer to that question is probably not. My level of interest would probably not be what it is. That troubles me, as we as citizens need to be watchful for these types of judicial transgressions, no matter what our political beliefs are, and not mattering whether we or the causes that we support benefit from the judge’s rulings.

I have yet to see much newspaper reporting on this. The Associated Press wrote a story based on Karl Peterjohn’s column, and the Wichita Eagle and Topeka Capital-Journal printed it, although in Wichita it was pretty far back in the paper’s pages.

The form I filed with the Commission asks for a twenty-five word statement of what the judge did that was unethical. This is what I wrote:

Justice Allegrucci is married to the Governor’s Chief of Staff. The Governor has taken a position on a case before Justice Allegrucci’s court.

For the details of the complaint, I wrote this:

In the case Montoy v. State, Kansas Governor Kathleen Sebelius has taken a position. In an article titled “School finance plan delivered to state Supreme Court” published in the Lawrence Journal-World on April 7, 2005, she is quoted as stating “As governor, I believe the Legislature’s school funding plan is neither responsible nor sustainable. It jeopardizes the state’s finances, as well as jobs and economic growth throughout Kansas.” The legislature’s school funding plan is now before the court Justice Allegrucci serves on.

Justice Allegrucci is married to Joyce Allegrucci, who serves as the Governor’s Chief of Staff.

In the Kansas Rules Relating to Judicial Conduct, Canon 2, paragraph B states: A judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment.

Through marriage, Justice Allegrucci has a family relationship to Joyce Allegrucci. Through employment and political considerations, Joyce Allegrucci has a relationship to Governor Sebelius.

Canon 2, paragraph A states: A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

In the commentary: A judge must avoid all impropriety and appearance of impropriety. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.

Because of the family relationship to an important member of the Governor’s staff, we can never be sure whether Justice Allegrucci’s rulings are affected by this relationship. This is appearance of impropriety, if not actual impropriety.

Senator Kay O’Connor

Kansas Senator Kay O’Connor, Republican from Olathe, has been in the news recently.

It has been reported that Sen. O’Connor opposes the right of women to vote. In the June 12, 2005 Wichita Eagle a letter writer repeated this assertion. On June 2, 2005, the Eagle printed an Associated Press piece by John Hanna that detailed the remarks. On June 3, 2005, the Eagle editorialized about this, opposing Sen. O’Connor.

The facts, though, are different. Sen. O’Connor denies making the remarks. The Kansas City Star, the newspaper that first reported the story, would not print her letter telling her side. Neither would that newspaper print the letters of witnesses to Sen. O’Connor’s remarks, witnesses who say she did not say what she is reported to have said.

I have met Sen. O’Connor. I admire her for her work on school choice in Kansas. She also voted against the bill allowing Sedgwick County to raise the sales tax for the downtown arena. I can understand, then, the Wichita Eagle not liking Sen. O’Connor and editorializing against her candidacy for Secretary of State, as Sen. O’Connor is a conservative, and the Eagle’s editorial board seems quite liberal and in favor of big government. I would ask the editorial writers, though, to investigate these alleged remarks before citing them again. The Eagle is a newspaper, after all, and it should do some reporting of its own.

Following is a piece that details the Sen. O’Connor matter, and tells us more about the news media in Kansas.

OUR NEWS MEDIA’S INACCURATE STORIES
By Karl Peterjohn, October 26, 2001

Hey, have you heard the one about the female state senator from Kansas who opposes woman’s right to vote? It’s a story that was first printed in the Kansas City Star and made it into the national press and eventually even into Jay Leno’s monologue.

The star’s story claims conservative state senator Kay O’Connor, R-Olathe said this after she had finished attending a September 19 League of Women Voters forum in Johnson County. O’Connor who did not speak at this forum was talking privately to a couple of members of the league, Dolores Furtado and Janis McMillen as well as state representative Mary Cook, R-Shawnee.

Kansas City Star reporter Finn Bullers attended this meeting and belatedly claimed in a September 28 article that O’Connor told these ladies that she opposed the right of women to vote. O’Connor vehemently denies this assertion. What is newsworthy is not the borking of a social conservative in the pages of the liberal Kansas City Star.

After all this looks like standard policy based on the treatment that another conservative, former Kansas state school board member Linda Holloway also received from the K.C. Star. What was newsworthy was the fact that O’Connor’s written response to this assertion did not make it into even the letters section of the K.C. Star’s editorial page. It appears that O’Connor’s statement would be too politically incorrect for the K.C. Star to let O’Connor say, “This whole affair is simply ridiculous. I have always supported the right of women to vote, and have literally encouraged women to exercise that right.” O’Connor went on to say, “…I am hurt and upset by the manner in which my views have been distorted.”

Even more outrageous was the fact that another elected official, Rep. Cook, who witnessed the exchange, was unable to have her letter to the editor appear in print as of late October. She wrote the K.C. Star saying, “I was standing next to Kay O’Connor (who) was having her private conversation with Dolores Furtado and Janis McMillen, League of Women Voter members. I can say with confidence that Kay never said that she did not support the 19th Amendment or the women’s right to vote.”

Trashing state senator O’Connor fits right in with the treatment Judge Robert Bork received during his confirmation hearings in the late 1980’s. Bork’s nomination was scuttled by a tidal wave of inaccurate allegations from left wing and liberal critics that had nothing to do with his qualifications to serve on the federal court. Hence the phrase: “borking.”

Conservative men are just as big a target for the political left in the Kansas Press as women. Editorial writer Dick Snider in early October used a second hand, anonymous source who claimed that his information came from another anonymous “…party potentate…” who allegedly got it from a person attending a meeting at U.S. Senator Sam Brownback’s house. Brownback supposedly had offered state treasurer Tim Shallenburger a federal position as a consolation prize if he was unsuccessful in running for Kansas governor next year according to columnist Snider. This appalling inaccuracy then appeared in Mr. Snider’s Topeka Capital-Journal column. This assertion could have easily been debunked if Mr. Snider he had bothered to talk to any of the roughly 20 folks who were actually at this meeting. Mr. Snider apparently couldn’t be bothered or most conservatives are unwilling to talk with him. Mr. Snider did issue a semi-retraction October 12 after Senator Brownback’s office called Mr. Snider complaining about this lie, so this case is not quite as outrageous as the KC Star’s distortions.

I can speak first hand as a similar victim of an inaccurate Kansas City Star article written by the lying Mike Hendricks. These are not isolated cases. If you need more examples, folks should contact former K.C. Star editorialist John Altevogt, who has many more examples about his former newspaper.

Journalists should know that corrections should be made when mistakes appear in print. It is sad to see some Kansas journalists following down the footpath blazed by the fictional writing in the national press. These abuses have occurred in major papers from the Washington Post to the Boston Globe and led to reporters and columnist’s eventual firing and disgrace. In the Washington Post’s case a Pulitzer Prize was actually awarded and then retracted. In Kansas the borking takes place and the so called “journalists” just keep on writing.

Credibility is a vital tool for both elected officials and the news media. The fact that major news organizations like the KC Star are either too arrogant or too defensive to even print letters to the editor by elected officials who have been maligned by it are appalling. This is especially true when contrasted with the misbehaviors of politically correct politicians, like President Clinton, who had his Lewinsky scandal story killed initially on the mainstream press’ news desk. If it had not been for the internet and cyber-journalist Matt Drudge, the Monica Lewinsky perjury and obstruction of justice scandal would never have appeared in public. This is not, “all the news that’s fit to print,” but “all the news that fits.”

Regarding School Finance from Senator Karin Brownlee

By Senator Karin Brownlee, Republican from Olathe

What is the higher priority? Should the Legislature send $143 million more to schools or preserve the form of government our forefathers carefully designed over two hundred years ago? The separation of powers doctrine is fundamental to maintaining our free society because it maintains a balance of powers with the judiciary unable to control the budget. That is until last Friday when the Kansas Supreme Court blurred the lines and came out with a ruling that the Kansas Legislature should appropriate an additional $143 million to the K-12 schools, for starters. The Court expects $568 million more after that.

A few school districts in Kansas sued the state because of their perception that the state is under funding them. This suit worked its way through the Kansas courts to the point that the state Supreme Court in January mandated the Legislature to address some specific areas to ensure an equal education for all Kansas students. The Legislature responded by voting to send an additional $142 million to our schools with some of the additions targeting the specific needs. This is the largest increase to schools since 1992. Out of our $4.9 billion budget, about $2.6 billion will go to schools in ’05-’06.

The school lobby in the Kansas Capitol is possibly the strongest lobby under the dome. I have seen bills pass initially one day only to get squished like a bug the next day on a final vote because the Kansas Association of School Boards (KASB) and the Kansas National Education Association (KNEA) deemed the bill a threat to their way of life. Because of the strength of this lobby, it is hard to sort fact from fiction when discussing school finance.

You have probably heard that the base state aid per pupil (BSAPP) has not kept up with inflation. What are the facts? BSAPP is only one part of the school funding formula and there isn’t a district in the state that only receives this amount. It is always multiplied by weighting factors which increases this number significantly. Since the school funding formula was rewritten in 1992, state, local and federal funds increases for K-12 have surpassed the consumer price index (CPI) every year. Kansas spends about 54% of its state budget on our schools. On average, other states spend about 35% of their state budgets on K-12. The next time someone tries to convince you that the Legislature is shortchanging our schools, you might keep these facts in mind.

Additionally, Kansas students perform quite well when compared to students in other states. Over the past few years, our schools have ranked in the top ten states in many categories. In some areas on nationalized tests, our students are ranked even higher. Lack of quality is not driving the push for millions more to schools.

I write all of this to make the point that the true need may not be the hundreds of millions of dollars that the state Supreme Court is mandating. Certainly our schools would make use of any money sent their way. However, the need for balance in state spending is critical to maintain a positive climate for families and businesses. Frankly, this struggle is no longer about school funding. The greater need is to maintain the balance of powers and not allow a court to tell the Legislature who gets how much money. That is the exclusive duty of the Kansas Legislature.

Corruption in the Public Schools: The Market Is the Answer

Corruption in the Public Schools: The Market Is the Answer
by Neal McCluskey
Click here to read the article.

This is an excellent article that shows how free markets can provide the best education for our children.

On the surface, it would seem that having government bureaucrats in charge of educating children would produce good results. For a time in America, it did. But not now. As Milton Friedman said in his commentary “Free to Choose” published in the Wall Street Journal on June 9, 2005:

“A Nation at Risk” stimulated much soul-searching and a whole series of major attempts to reform the government educational system. These reforms, however extensive or bold, have, it is widely agreed, had negligible effect on the quality of the public school system. Though spending per pupil has more than doubled since 1970 after allowing for inflation, students continue to rank low in international comparisons; dropout rates are high; scores on SATs and the like have fallen and remain flat. Simple literacy, let alone functional literacy, in the United States is almost surely lower at the beginning of the 21st century than it was a century earlier. And all this is despite a major increase in real spending per student since “A Nation at Risk” was published.

“A Nation at Risk” was published in 1983.

The executive summary of “Corruption in the Public Schools”:

One of the most frequently voiced objections to school choice is that the free market lacks the “accountability” that governs public education. Public schools are constantly monitored by district administrators, state officials, federal officials, school board members, and throngs of other people tasked with making sure that the schools follow all the rules and regulations governing them. That level of bureaucratic oversight does not exist in the free market, and critics fear choice-based education will be plagued by corruption, poor-quality schools, and failure.

Recently, news surfaced that appeared to justify critics’ fears. Between the beginning of 2003 and the middle of 2004, Florida’s Palm Beach Post broke a slew of stories identifying corruption in the state’s three school choice programs. The number of stories alone seemed to confirm that a choice-based system of education is hopelessly prone to corruption. But when Florida’s choice problems are compared with cases of fraud, waste, and abuse in public schools — schools supposedly inoculated against corruption by “public accountability” — choice problems suddenly don’t seem too bad.

So which system is more likely to produce schools that are scandal free, efficient, and effective at educating American children? The answer is school choice, precisely because it lacks the bureaucratic mechanisms of public accountability omnipresent in public schools.

In many districts bureaucracy is now so thick that the purveyors of corruption use it to hide the fraud they’ve perpetrated and to deflect blame if their misdeeds are discovered. However, for the principals, superintendents, and others purportedly in charge of schools, bureaucracy has made it nearly impossible to make failed systems work. Public accountability has not only failed to defend against corruption, it has also rendered many districts, especially those most in need of reform, impervious to change.

In contrast to our moribund public system, school choice isn’t encumbered by compliance-driven rules and regulations, which allows institutions to tailor their products to the needs of the children they teach and lets parents select the schools best suited to their child’s needs. And accountability is built right in: schools that offer parents what they want at a price they are willing to pay will attract students and thrive, while those that don’t will cease to exist.

From the conclusion:

When examples of fraud, waste, or abuse are uncovered in school choice programs, they typically set off firestorms of criticism from people who oppose educational freedom. Critics quickly hold up any example of malfeasance in choice schools as proof that the market can’t provide the level of accountability supposedly guaranteed in public schools. But public schools’ accountability, as has been demonstrated constantly in districts around the nation, is a myth. Worse, it’s a myth whose propagation not only blinds people to the system’s failure to control corruption but also ignores bureaucracy’s disastrous toll on educational effectiveness. Ironically, though, there is a way to have both educational effectiveness and accountability, and it’s the very thing people who oppose school choice most fear: true choice-based education.

The school productivity crisis

As the Kansas Legislature prepares to meet to consider school financing, it is a good time to reflect upon the state of our public schools.

This interview (How to Improve School Productivity? Caroline Minter Hoxby) with noted Harvard economist Caroline M. Hoxby teaches us that American public schools have poor and declining productivity. As she states:

The main symptom of the productivity crisis is the fact that productivity has fallen almost 50 percent in the past 30 years. We measure productivity by dividing a measure of student achievement by per-pupil spending in inflation-adjusted dollars. Regardless of which achievement measure we use, we find a decline in productivity of 40 to 50 percent. This is because achievement has been flat or slightly declining, while costs have been escalating rapidly.

When asked how schools are able to increase costs without increasing the quality of the product, she responds:

Schools don’t face enough competition. Just imagine competing grocery stores. If one of them decided to increase its prices but offer exactly the same products, people would go to the other grocery stores and the store would quickly go out of business. Unfortunately, parents do not have sufficient opportunity to change schools so that they can say, “My school is more expensive than before and it doesn’t seem to be doing better than other competing schools. Therefore I’m going to send my child to another school.” In other words, competition in the education industry is too weak to be an effective brake on costs.

Regarding teacher unions:

… the teacher unions can be very demanding for their members, who often want contracts that are not best for students. There’s no effective brake on the teacher unions because they are not forced to negotiate contracts that permit their schools to remain competitive. There is just not much of a competitive marketplace out there.

On class size:

The evidence suggests that class-size reduction has no effect on student achievement. There are literally hundreds of studies of class size, which have been very effectively reviewed by Eric Hanushek, that suggest that reducing class size does not raise achievement.

I have a study in which I examined every change in class size at every elementary school in Connecticut over a 20-year period. In schools, class size varies from year to year because enrollment varies. Therefore, with 20 years and 800-some schools, there is a tremendous amount of variation in class size to examine.

I found there was no effect of class size on achievement at all, even when children were in small classes for all six years of elementary school.

There really is only one study in which a class-size reduction improved student achievement: the Tennessee STAR experiment. But the effect on achievement was tiny–a 10 percent reduction in class size raised achievement by two one-hundredths of a standard deviation in achievement test scores.

More importantly, in the Tennessee STAR experiment, everyone involved knew that if the class-size reduction didn’t affect achievement, the experimental classes would return to their normal size and a general class-size reduction would not be funded by the legislature. In other words, principals and teachers had strong incentives to make the reduction work. Unfortunately, class-size reductions are never accompanied by such incentives when they are enacted as a policy.

Also, it is worth keeping in mind that class-size reduction is very expensive. A 10 percent reduction in class size typically costs about $850 per year per student. For such a large amount of money, we could fund programs that are much more likely to raise achievement.

Reducing class size is a perfect example of a policy that the teacher unions like, but that lowers school productivity. The unions like it because each teacher has less work and more teachers have to be hired.

On school choice and vouchers:

From 1998-1999 onwards, the schools that faced the most competition from the vouchers improved student achievement radically–by about 0.6 of a standard deviation each year. That is an enormous, almost unheard-of, improvement. Keep in mind the schools in question had had a long history of low achievement. Yet they were able to get their act together quickly. The most threatened schools improved the most, not only compared to other schools in Milwaukee but also compared to other schools in the state of Wisconsin that served poor, urban students.

Milwaukee shows what public school administrators can tell you: Schools can improve if they are under serious competition.

A theme that appears in Dr. Hoxby’s remarks is that competition is the way to improve schools. The way to create competition is to give parents real choice in where and how to educate their children. Providing substantial, meaningful vouchers is a way to do this.

Beneath the Radar

Beneath the Radar
by Richard Nadler

On June 3, the Supreme Court of Kansas issued a ruling requiring the state legislature to appropriate an additional $853 million per year to Kansas schools, K-12. The basis of the decision, said a unanimous court, was a clause in the Kansas Constitution: “The legislature shall make suitable provision for finance of the educational interests of the state.”

The increase equals roughly 20% of the state’s entire general revenue budget.In comes at the end of a fifteen year period during which Kansas’ expenditure per pupil doubled, exceeding the rise in consumer prices by 29%.

In 1973, the U.S. Supreme Court refused, in San Antonio Independent School District v. Rodriguez, to “equalize” school spending. No trend better illustrates judicial activism than the steady stream of state school finance decisions that followed. From Connecticut to California, liberal courts have broken legislative budgets and spending caps.“Equalization” has served as a pretext for tax increases in some states, and for attacking local control of schools in others.Indeed, “school finance litigation” has become a multi-billion dollar business, commanding its own corps of specialty lawyers and expert witnesses.

To a large extent, these developments passed beneath the radar of conservative opinion makers. The fights are sporadic and local.Moreover, conservative icons want no part of them. Victory against the education lobby carries a political price; grumbling acquiescence to a court does not.Thus, the most prominent conservatives in Kansas – men like Attorney General Phill Kline, Sen. Sam Brownback, and Sen. Pat Roberts – have absented themselves from public debate over the Kansas court’s actions.

The rationales state jurists present for assuming control of legislative functions have become bolder.In its June 3rd decision (Montoy v. Kansas), the state supreme court spills as much ink justifying its jurisdiction as its remedies.The latter are predictable and formulaic:more money for public education; less local control for district patrons.But the former are bold and exciting.In explicating their takeover, the Kansas Supremes cite a growing body of literature from law journals and other states, as well as their own precedents.Fans of republican government should take note.

In the Sunflower State, judges, legislatures and schools co-existed for a century and a half without it entering the heads of the first to replace the role of the second in appropriating for the third.But today, Kansas courts assume a right to determine public policy on the basis of the presentations of litigants before the bar.Explicitly adopting the rationale of a Kentucky court, the Kansas justices quote it:

“…[In this case] we are asked – based solely on the evidence in the record before us – if the present system of common schools in Kentucky is ‘efficient’ in the constitutional sense.… To avoid deciding the case because of ‘legislative discretion,’ ‘legislative function,’ etc., would be a denigration of our own constitutional duty.To allow the General Assembly (or, in point of fact, the Executive) to decide whether its actions are constitutional is literally unthinkable.”

In other words, the “record” that is presented in the course of litigation not only can, but must, replace the form of “fact finding” that goes on in state legislature.To refrain from a decision based on the limitations of the knowledge base available through litigation is “unthinkable.”

In fact, the imperfection of the legislative process provides the rationale for intervention.“Specifically,” say the justices in Montoy, “the district court found that the financing formula was not based upon actual costs to educate children, but was instead based on former spending levels and political compromise [Italic mine-RN].”

The rules-based actions that legislative bodies apply to base-line budgets are thus structurally suspect.A process so arbitrary invites review.But once a case has been presented, how are the constitutional duties of the three branches of state government defined?Once again, the Kansas court cites its Kentucky peers:

“The judiciary has the ultimate power, and the duty to apply, interpret, define, and construe all words, phrases, sentences and sections of the Kentucky Constitution as necessitated by the controversies before it.It is solely [italic added by the Kansas justices – RN] the function of the judiciary to so do. This duty must be exercised even when such action serves as a check on the activities of another branch of government or when the court’s view of the constitution is contrary to that of the other branches, or even that of the public.”

Now, the relevant entries of Webster’s Collegiate Dictionary define “Apply” thus: a) “to bring into action, to put into operation or effect (as in a law);” andb) “[to] put to use, especially for some practical purpose.”

These phrases describe the traditional function of the executive branch in our state constitutions.What the Kansas Supreme Court has substantively claimed is an exclusive right to make law on any case brought before it.The constitutional oaths state executives take, like those of legislators, are in vain.

States are a particularly promising venue for this brand of juridical monopoly.The Kansas Justices cite a 1991 Harvard Law Review article to explain:

[U]nlike federal courts, state courts need not be constrained by federalism issues of comity or state sovereignty when exercising remedial power over a state legislature, for state courts operate within the system of a single sovereign.”

So our “single sovereign” is liberated from lesser sovereignties, as well as the constitutional claims of its co-equal branches of government.

For how long can the court claim this license? Harvard Law explains: “… the Court too must accept its continuing constitutional responsibility… for overview… of compliance with the constitutional imperative.’

To summarize:The public policy dicta of a state court need not be constrained by the messy squabbling of elected legislators, nor by facts neglected by the litigants-at-bar; nor by the constitutional duties of its co-equal branches; nor by lesser political subdivisions; nor by time itself.

It was a persistent dream of socialist and fascist thinkers of the twentieth century to replace the noisy, class-influenced machinery of democracy with a professional corps of experts who would design economic and social institutions in the interests of the people.In Montoy, the Kansas Supremes set their hands to it.But the best they could produce was a rehash of fragments of the legislature process, ripped from their moorings in popular sovereignty.

The court adopted a single study by a single committee of the legislature.The justices treated its proposals as law, and rammed them down the throats of all concerned.Montoy’s policy prescriptions – more funding for public schools, less local control – would have surprised the U.S. Supreme Court justices who rejected a “remedy” in 1973. For the majority, Justice Powell wrote:

It is also well to remember that even those districts that have reduced ability to make free decisions with respect to how much they spend on education still retain, under the present system, a large measure of authority as to how available funds will be allocated. They further enjoy the power to make numerous other decisions with respect to the operation of the schools.The people of Texas may be justified in believing that other systems of school financing, which place more of the financial responsibility in the hands of the State, will result in a comparable lessening of desired local autonomy. That is, they may believe that along with increased control of the purse strings at the state level will go increased control over local policies.

But then, Powell was constrained by those silly federalist principles.

— Richard Nadler is president of America’s Majority, a not-for-profit dedicated to building the demographic base of the conservative movement.

Wearing a Black Robe to Make Sausage

Wearing a Black Robe to Make Sausage
by Bob L. Corkins
April 22, 2005

Want to create new laws without legislators? Then watch the Kansas Supreme Court for the next few weeks to see how it’s done.

Like pride for trophies on a mantle, trial lawyers boast of cases where they convinced a court to declare the birth of a new duty. Persuade a jury that somebody owes a responsibility to someone else, even if there’s no agreement, precedent, or statute providing a basis, then collect damages after showing the duty was breached.

If the decision holds up on appeal – Presto! – a new law is born. You don’t even need to mess with a jury when a single judge is tabbed as the official “finder of fact”.

Plaintiff school districts found just the judge they were hoping for when they filed their billion dollar Montoy v. State case challenging the fairness of Kansas’ K-12 education funding plan. The trial judge ruled that the state aid formula was both inequitable and under-funded. The Kansas Supreme Court now appears ready to uphold that result, but with one major twist in reasoning.

Any discrimination of our laws is traditionally evaluated with the Constitution’s Equal Protection Clause. In the Montoy trial court’s opinion, disparities in K-12 funding caused “a clear denial of equal protection of the laws in contravention of both the United States and Kansas Constitutions”.

Many disagree with this conclusion and formed solid legal reasons for their disagreement. How? By applying well known standards that the Judiciary has reinforced for generations when interpreting Equal Protection.

When the Supreme Court did this for the Montoy appeal in January, it specifically reversed the trial court by writing “We conclude that all of the funding differentials as provided by the [Act] are rationally related to a legitimate legislative purpose. Thus, the [Act] does not violate the Equal Protection Clause of the Kansas or United States Constitutions.”

It would seem, then, that the only question left is whether Kansas’ overall spending on K-12 is enough to satisfy Article 6 of the Kansas Constitution by being “suitable”. The Supreme Court agreed with the trial court that current funds are not suitable, then gave the Legislature a few months to make it good.

Further word from the Supreme Court was issued, perhaps ominously, on April 15, tax day for millions of Americans. It ordered additional briefs responding to many questions, including demands for justification of: disparities in K-12 funding between districts; the “weighting” of some categories of students more or less than others; failure to automatically increase special education funds by annual inflation; and, all disparities based on actual costs per pupil.

All are Equal Protection questions. Are these really the same judges that just gave the finance plan a clean Equal Protection bill of health? The Court throws logic out the window when it says all funding differentials are rationally related to legitimate purposes, then sneers that they are the result of political bargains.

Explanation: the Court’s upcoming decision will probably make new constitutional law.

The Court’s only remaining path of legal reasoning to indict the K-12 formula is with Article 6 which says “the legislature shall make suitable provision for finance”. There is no legal precedent for interpreting this phrase. None from Kansas; only a couple other states that use the term “suitable” in this context and none of their cases offer guidance either.

Thus, the Supreme Court is free to declare that “suitable” means whatever it chooses. Maybe they’ll pluck from their favorite dictionary definitions. “Suitable” could easily become like Equal Protection on steroids, meaning anything the Court might eventually consider “fair”. There’s no current standard for evaluating it, so the Court can use it to reject any fix the Legislature might negotiate. At least when the plaintiffs first filed suit, they were shooting at a stationary target. And when the trial court ruled, however wrong its conclusion, at least it was using an established legal standard.

Worse still, consider the Court’s deep inquiry into the fairness of finance plan details. Its recent questions sound like those posed by someone wanting to micro-manage the Legislature’s response. But the separation of legal power is not like that strip of border grass that sometimes you mow, sometimes your neighbor does. It must be a constitutional firewall.

One of the court’s questions last week was more revealing and politically charged than the rest. What’s the “constitutional significance” of failing to name a future source of K-12 funding? The answer should emphatically be “None”. Only judges pretending to be legislators would ask that question in the first place.

###

Bob L. Corkins is executive director of the Freestate Center for Liberty Studies. The Freestate Center is a nonpartisan, not-for-profit, Topeka based research institute for advancing the Constitutional principles of limited government, individual liberty, free enterprise and traditional family values. Freestate is organized under IRS ‘ 501(c)(3).

More from Rep. Frank Miller

A press release from Kansas House Member Frank Miller, Republican from Independence.


Further Regarding The Sebelius Court Order
June 9, 2005

Thank you for your many responses to my last press release. I appreciate getting both those that agree with me as well as those that disagree with me. The responses are running about half agree and half disagree, however most of the “disagrees” are from educators. The pile of agree responses cut across a broad range of constituents in my district. As far as my meetings with individuals, the consensus is running almost 100% agree that the Sebelius Court has overstepped its authority. Let’s face it – most voters want to hold their elected legislators responsible for making laws, levying taxes, and appropriating funding. Who wants to have a few non-elected judges make these kinds of decisions?

Some have asked me “have we read the Constitution” – the answer is “YES”. Some say the legislature must obey the Sebelius court if they have a genuine concern for the children – the answer is “we do”, but we also have a concern for the parents of the children, and for those couples who have no children and retired citizens. The amount of tax that comes out of the pockets of the parents also hurts the children.

The really big problem is not about money! The really big problem, which has been imposed upon the Legislature by the Sebelius Court, is a “Constitutional Crisis”. If we acquiesce even in one small amount to this court order then we have agreed with the court and set a precedence that will make next year and all future years more difficult for the legislature. I do not want to leave that kind of legacy for the legislator that will follow my steps. For this reason I have no plans to acquiesce to the court.

The really big funding problem will come next year 2006-2007 when the court has ordered that the legislature fund the entire funding increase recommended in the Augenblick & Myers report of $853 million. One constituent suggested that we raise the cigarette tax to pay for this increase, which would necessitate increasing the present tax of $0.79 per pack to about $8.00 per pack. Kansas would collect zero revenue from this levy since no one would buy their cigarettes in Kansas. I fear many citizens and Supreme Court judges have little understanding of the magnitude of tax increase that would be needed to fund this kind of spending. So here goes! According to the Kansas Legislative Research Department, any one of the following tax increases would yield the required $853 million:

The current State Sales tax of 5.3% would be increased to about 10%, and local taxes would be added to that. Here in Independence that would be a tax increase from 7.55% to about 12.25%! Or the current State property tax of 20 mills would be increased to 65 mills! The current local LOB taxes would remain unchanged and in place. Or the State could impose a 45% surcharge on every person’s income tax!

None of these make any sense and would definitely make Kansas the “CHAMPION OF HIGH TAXES” in our five-state area. It would spell economic suicide for small business and according to projections from Beacon Hill Model – Flint Hills a loss of about 20,000 jobs. Currently our population growth is stagnant at best and school enrollment is actually declining, but these kinds of tax increases would cause a sucking sound to resonate all over Kansas and our schools as families move out to lesser taxed states.

“We are using scare tactics” some will say! Or, “we are overly negative”, others will cry! “No”, what has just been stated is REALITY, and the best way to turn something bad into something good is to first recognize truth and then act on correcting the problem. We need to make major reforms in our schools and our government in order to make them more efficient and eventually lower taxes across the board. A tough business-minded governor could force this to happen, but it would not be easy. We need to pass the TABOR (Taxpayers Bill of Rights) bill in 2006, but that is another subject I will be discussing more during the summer.

It is very important that I hear from you and that you let your voice be heard by your representative and senator on this Sebelius Court Constitutional Crisis issue.

To contact Rep. Frank Miller write, telephone, or email to P.O. Box 665, Independence, KS, 67301, Tel: (Home) 620-331-0281; Email frank@frankmiller.org, or see webpage www.frankmiller.org.

Base School funding on research, not feelings

On the surface, it would seem like smaller class sizes would produce better educational outcomes. Intuitively, this makes sense.

Research tells a different story, however. Research by Harvard economist Caroline M. Hoxby titled “The effects of class size on student achievement: New evidence from population variation”, The Quarterly Journal of Economics 115 :4 (2000), 1239-1285, which can be read here: http://www.economics.harvard.edu/faculty/hoxby/papers/effects.pdf makes a different conclusion. Some quotes from the study:

I identify the effects of class size on student achievement using longitudinal variation in the population associated with each grade in 649 elementary schools. I use variation in class size driven by idiosyncratic variation in the population. I also use discrete jumps in class size that occur when a small change in enrollment triggers a maximum or minimum class size rule. The estimates indicate that class size does not have a statistically significant effect on student achievement. I rule out even modest effects (2 to 4 percent of a standard deviation in scores for a 10 percent reduction in class size).

Using both methods, I find that reductions in class size have no effect on student achievement. The estimates are sufficiently precise that, if a 10 percent reduction in class size improved achievement by just 2 to 4 percent of a standard deviation, I would have found statistically significant effects in math, reading, and writing. I find no evidence that class size reductions are more efficacious in schools that contain high concentrations of low income students or African-American students.

As we in Wichita and Kansas prepare to make important decisions on school funding, let’s use research, not feelings, to make informed and rational decisions.

Kansas Supreme Court Bypasses Voters Right to Representation

Following is a press release from Kansas House Member Frank Miller, Republican from Independence. I think he assesses the situation accurately.


Supreme Court School Finance Decision
Press Release 6/6/2005

Kansas Supreme Court By-Passes Voters Right to Representation

I am shocked and very alarmed that the Kansas Supreme Court by a unanimous decision would so boldly by-pass the authority of the legislature and directly appropriate funding for governmental functions. This is just another step in the dangerous abrogation of the Constitution and a further increase in the activism of our courts. Meaning – our courts across the Nation are taking over the role of the legislature, i.e. making laws and ordering government spending. The Kansas Supreme Court judges are appointed by the governor and are not elected officials. Legislators are elected by the people and the constitution places the responsibility of appropriating funding for all functions of the Government with the Legislature.

I am not a lawyer, but have read enough of the US and Kansas Constitutions to believe that the Supreme Court has stepped way beyond its powers when it mandates the Kansas Legislature to increase spending and taxes as they are now ordering. The Court order states “We (the Kansas Supreme Court) further conclude, after careful consideration, that at least one-third of the $853 million amount reported to the Board in July of 2002 (A&M [Augenblick & Myers] study’s cost adjusted for inflation) shall be funded for the 2005-06 school year”. One third of $853 million is $285 million. The legislature has already appropriated an increase in spending of $142 million (largest single year increase since 1992) for the school year 2005-06, but did not increase any taxes. Thus to comply with the court’s order we must add another $143 million to our latest budget amount by July 1, 2005! The Court further states that the legislature must appropriate the full amount of $853 million for the school year 2006-2007. We must recognize that this is Kansas Supreme Court ACTIVISM AT ITS WORST!

Bear in mind an increase in the current budget of an additional $143 million (142+143 = $285 million) may require a per capita annual increase in taxes for a family of four of approximately $208! Next year the minimum increase will be a whopping $853 million resulting in an additional per capita annual increase in taxes for a family of four of approximately $1240! However, this increase is contingent on findings and timeliness of a Post Audit study. Total funding for K-12 education has already been increasing two times faster than the inflation rate for the past five years! This latest Supreme Court order if fully implemented will put the State into a “SUICIDAL ECONOMIC DIVE”!

I strongly urge you to let me know by telephone, letter, or email your answer to the following question: “DO YOU THINK THE KANSAS SUPREME COURT HAS MADE A GOOD OR BAD DECISION?”

To contact Rep. Frank Miller write, telephone, or email to P.O. Box 665, Independence, KS, 67301, Tel: (Home) 620-331-0281; Email frank@frankmiller.org, or see webpage www.frankmiller.org.

Disgraceful decision will hurt Kansas

This is a reprise of a January 10, 2005 column, which is worthwhile to read again.

Disgraceful Decision Will Hurt Kansas
by Karl Peterjohn, Executive Director, Kansas Taxpayers Network

The Kansas Supreme Court’s school finance decision is deeply flawed both in substance and in procedure. This five page judicial edict (www.kscourts.org see case no. 92,032) announced January 3 is designed to pressure the legislature into voting for more spending for public schools without saying by how much. Many tax and spend advocates are now claiming the court is requiring a tax hike, but no such specific language is contained within this decision.

This claim is supposedly based upon language contained within the Kansas Constitution and various statutes enacted in Kansas. This Constitution itself is unchanged since the 1994 Kansas Supreme Court decision that said the school finance system was constitutional. At that time, state school spending was almost $700 million a year less than it is today. This decision is inconsistent with the 1994 case and the school spending facts between 1994 and now.

Neither this legal edict or any language within our state constitution suggests whether increased school spending of four percent or fourteen percent or forty four percent more will make anything constitutional. The only positive for Kansas taxpayers in this ruling was the court’s decision to keep this case out of judicial activist Terry Bullock’s courtroom and Bullock’s explicit billion dollar spending and tax edict.

Plaintiff and trial attorneys for the school districts that brought this lawsuit are already claiming that a billion dollars in additional state spending is required. The leading plaintiff attorney is Alan Rupe who has been involved in all of the school finance lawsuits in Kansas going back to the 1980’s and has been repeating this claim. Ironically, the Augenblick and Myer study (A&M) that the plaintiffs rely upon in their lawsuit uses a much smaller figure. The actual A&M report, which is often discussed but seldom actually quoted says, “we are suggesting that total (public school) spending needs to increase by $229 million,” (page ES-4).

So the court came up with a judicial edict that said state spending on public schools was inadequate without saying by how much. The court went on to say that some unspecified increase in spending might not be enough to make it constitutional either. This is a strong indication on how the rule of law in Kansas is being replaced by the rule of a new super-legislature that consists of seven black robed lawyers. It is interesting to note that 57 percent of this court/super legislature, or more than twice the statewide average of 26.8 percent of registered voters in Kansas, are registered Democrats according to a check of public records.

The Kansas Supreme Court managed to come up with this ruling despite a lack of evidence in any of this litigation that Kansas spends less per pupil on public schools than our neighboring states. In fact, anyone who wants to check the federal government’s figures will see that Kansas spends more than our surrounding states despite having lower income than the national average. In some of these surveys Nebraska is ranked as spending as much or slightly more than Kansas but all of the other neighboring states get by with much less government school spending. A couple of days after this decision was released a national survey by Education Week confirmed that the government school system in Kansas is adequately funded. Kansas received a “B” grade on this scorecard for funding (see www.edweek.org).

A few days earlier the latest state data came out showing that Kansas’ average spending grew 3.8 percent in 2003-04 or $341 per pupil to average of $9,235. In 2004-05 the schools have budgeted school spending to grow by 10 percent, breaking the $10,000 per pupil mark. The average per pupil (FTE) in Kansas will have $10,162 spent during 2004-05 according to this most recent Kansas public school budget data.

However, the court’s unsigned and non-final edict lacked many of the important characteristics of judicial rulings. This edict was unsigned by anyone and news articles claim that such an edict must be unanimous to be issued this way by the court. Of course, this is not guaranteed as a final decision either. So this decision is vague concerning the state’s constitutional language and leaves important legal issues unspecified beyond a general decision that more spending is required with the court positioning itself to second guess the legislature’s after first adjournment and April 12.

Last month the court was narrowly and bitterly divided when it overruled its own 2001 decision by a 4-to-3 margin on the constitutionality of the Kansas death penalty. At least in that decision, Kansans were able to find out where the judges actually stood and there was a signed opinion.

In theory Kansas voters are supposed to have a say on judicial positions. However, since judicial retention elections were established in 1958 in Kansas, not a single appellate or supreme court member has ever lost their position after a retention election. These judicial appointments are almost as good as getting an explicitly lifetime federal judicial appointment. The pay and pension perks are similar and only slightly smaller too. Four of the Kansas Supreme Court judges had judicial retention votes in 2004 and will continue on the court for terms for at least six more years assuming that none resign or leave the court for other reasons.

The basis for this government school finance decision is the court’s vague position on what this constitutional language, “The legislature shall make suitable provision for finance of the educational interests of the state,” means. It is very clear that the Kansas Constitution does not mean that the judiciary system in Kansas should try to make a mess out of Kansas schools like federal judge Clark did in the Kansas City, Missouri school system beginning in the 1980’s and that continued for years.

I, Government

I, Government
Published in The Freeman: Ideas on Liberty, October 2002 by D.W. MacKenzie
Click here to read the article.

This article illustrates just how large government at all levels has become.

Do we really want governments so powerful that they can do the things described in this article?

How have we let this happen? Will we ever be able to shrink the size and intrusiveness of government? Even under a president who labels himself a conservative, government spending has grown rapidly. Even the most modest proposals to take away power from the government and give it back to the people appear to have no chance of success. The proposal for social security private accounts is an example of this.

The Invasiveness of Government

TRACKSIDE
by John D’Aloia Jr.
May 31, 2005

Trackside last discussed the use of the legislative process to feed the insatiable itch for power that overtakes elected officials. This past session a majority of Kansas state senators demonstrated the itch by passing SB45, a bill that would have given local jurisdictions the means to instantly collect past due property taxes by making the delinquency a cause for a court judgement against all the landowner’s resources to settle the tax debt.

As stated in that Trackside, the ability to condemn or control private property is another route to increasing the power of government. With the Endangered Species Act (ESA), those who covet power found a mighty sword to use against both individual landowners and society. The ESA is infamous for its use as a means not to protect critters but to give government and narrow interest groups power over how citizens use their land and how they spend their money. Examples abound – one of the latest revolves around the endangered Riverside fairy shrimp in California. The Riverside fairy shrimp is a fresh-water shrimp, one-half to one inch long, that lives in mud puddles after it rains. The City of Los Angeles is going to have to remove 1.3 acres of top soil, an estimated 468 tons, using hand trowels, to “transplant” endangered Riverside fairy shrimp eggs from the Los Angeles Municipal Airport (LAX for you frequent flyers) to a preserve being created at the closed El Toro Marine Corps Air Station, said preserve to be maintained by the city. The Federal Aviation Administration refused to allow a reserve for them at LAX because it would have meant having the area covered by water for several months a year, attracting birds that could be sucked into jet engines. The debate has been going on for six years. The cost was not stated. The fairy shrimp has locked up thousands of acres in California, taken it off-limits for development. The shrimp’s only value appears to be as an ecofascist tool for gaining control over private property and the use of tax dollars. This is not a productive use of the nation’s wealth or a rationale for making tax slaves of citizens.

Not satisfied with the success in using endangered species to gain power, the ecofascists have drummed up another kind of “species” with which to bludgeon landowners. SAFETEA, the acronym for the massive transportation bill working its way through Congress, is, as one would infer by its title and stated purpose, a bill to maintain and enhance the nations transportation infrastructure. Unfortunately, the Senate version of SAFETEA contains provisions more deadly to our freedom than a few million dollars recklessly spent on home-town pork with some remote nexus to transportation, provisions that if enacted will ultimately be expanded to degrade and erode property rights. Would you expect to find new ways in the bill for government to separate you from your property rights and your resources so they could be placed on Gaia’s high altar? Not really, but that is exactly what is buried in the Senate’s SAFETEA, sections that enlarge the already draconian ESA by creating an Invasive Species Act. The title says it all. The full power of the federal government and every law-suit crazed environmentalist will be brought to bear against invasive species and those who harbor them.

How is invasive defined? Not as gardeners define it – a plant that grows and expands wildly into areas not wanted. (Think kudzu vine.) No, the government definition of invasive is “not native”. While the SAFETEA invasive species provisions may “only” apply to highway projects today (thereby giving environmentalists a tool to shutdown highway construction), the readiness of The Clerks, egged on by interest groups, to expand their jurisdiction – mission creep – is a known phenomenon. Contemplate the implications of this definition. Like to fish for rainbow trout? Better enjoy it while you can. The feds have labeled it an invasive species as it is not native to North America. Own a German Shepard? Not native. Grow Bradford pears? Not native. Grow Kentucky bluegrass, tall fescue, or ryegrass? Not native. Hunt pheasants? Not native. Have goldfish in your pond? Not native. The list goes on and on, every item on it an opportunity for an environmentalist to paint a target on your property rights and your wallet.

See you Trackside.

The Mississippi beef plant has a lesson for us

Writing from Jackson, Miss.

Jackson, Mississippi has a lively talk radio station, WJNT, featuring both local shows and national shows. The hot topic of discussion on my trip to this city was what to do with the MCI settlement money, as the state had just negotiated a settlement with MCI of $100 million, for taxes MCI owed.

Some callers (and perhaps the host) suggested that the state use this money to pay for the “beef plant.” I was curious as to what this meant. Why, I wondered, would Mississippi be paying for a beef packing plant? After a little research I learned that Mississippi had guaranteed loans to develop a beef processing plant, in the name of economic development. The plant operated for just a few months before closing, leaving the taxpayers of Mississippi liable for the loans. The cost to the taxpayers was given as $54 million.

I am writing about this because I feel we need to be more watchful of economic development efforts that the state and local governments undertake using taxpayer money. It is easy to develop grandiose plans for endeavors that will employ many people and generate all sorts of economic benefits. But business is risky. Things don’t — strike that — rarely follow even the best plans. Often, it is the public treasury that bears the risk for a project, not the owners or direct stakeholders. If these people have the risk of the business underwritten by the public, rather than having their own funds at risk, they behave differently. We have ample evidence from recent news reports in Wichita that public officials don’t monitor the progress of both public and public/private projects as they should.

Proponents of issuing bonds, often in the form of industrial revenue bonds or IRBs make the point that the government is not giving the business the money. That’s true, and also a great relief, as Onex has asked for one billion dollars in bonds. But the government is guaranteeing the bonds, so that if the business fails, the government, meaning the taxpayers, have to pay.

How often does the government have to step in and pay for the bonds issued to a failing or underperforming business? We learn of the spectacular failures like the Mississippi beef plant. How many small failures does the government pay for that don’t make the news?

Following is an article from the Jackson Clarion-Ledger from May 1, 2005.

Is there still a beef plant in our future?
Legislature can easily fall back into its old ways

By Charlie Mitchell
Special to The Clarion-Ledger

VICKSBURG — Three questions regarding Mississippi Beef Processors:

How did Mississippi officials risk blowing $54 million in taxpayer money in this boondoggle?

Will anyone be going to jail?

Can it happen again?

Three answers:

Too few, intentionally or otherwise, knew anything about it.

That remains to be seen.

Yes, but not until the (heifer) dust settles.

The basics are clear. A few years ago, under the guise of industrial development, also known as “job creation,” state executive agencies, including the Mississippi Land, Water and Timber Board, partnered with legislative leaders to underwrite startup costs of the beef plant near Oakland in north central Mississippi.

Studies (ignored) showed there was little demand for such a plant and, sure enough, it shut down in November 2004, having operated only a short time for few customers. Officially, a need for $5 million more of the people’s dollars for “equipment repairs” was cited. That wasn’t provided, and the plant is now defunct, in default and the state of Mississippi has to sell it, perhaps for pennies on the dollar, or pay up in full.

Here’s a point to remember: Mississippi Beef Processors was not an abnormal act of the Legislature. It was, in fact, business as usual.

When such proposals show up, usually in the form of bond bills, they are, by coincidence, like cattle, run through the line. Few lawmakers ever ask the purpose for hundreds of millions of dollars being allocated in the public’s name — perhaps because they don’t want projects in their own communities questioned.

Anyway, now that the Oakland project is officially in the dumper, attention turns to who, if anyone, will be held accountable.

Recently, State Auditor Phil Bryant chose his words carefully in updating the state’s press about the work of an investigative task force composed of members of his staff, the attorney general’s staff and a few representatives of the FBI.

Bryant termed the investigation “very active,” but added there is no timetable, no deadline for completion of the review.

But then Bryant turned his remarks to something that could be more important — residual effects of the fiasco.

A specific example, he said, is that during the regular session after a bond bill proposing $500,000 for something called M-Quality was passed well below the radar of the state press, nine House members did ask Bryant for a background check.

M-Quality made headlines for a few days. Day One was a story about the House approval. Day Two was a report that M-Quality existed only on paper, and in very sketchy terms. Details didn’t matter, as it turned out, because on Day Three incorporators of M-Quality withdrew their request. The issue went away.

Bryant indicated respect for the Legislature in this matter, especially since nine (of 174 lawmakers) at least made an inquiry.

More significantly, in the one major initiative to which public funds were pledged this year — a SteelCorr plant near Columbus — extensive background reports were made conditional to the planned allocation of $25 million in state dollars plus up to $85 million more in years to come.

To get the money, SteelCorr had to agree to submit a business plan, officers have had to undergo background checks and credit checks, company financials had to be submitted and a market analysis for its product must be performed under the auspices of the state Institutions of Higher Learning.

Bryant says that’s the way it should be, and was pleased to report that portions of the allocation will also be reserved to pay for state audits of the company’s ongoing performance. Clearly a step in the right direction.

But is any of this law? Must all future gifts be vetted? Nope. Nothing official has been changed in how lawmakers operate, meaning there could easily be another Mississippi Beef Processors fiasco. Officials may feel spanked for now — but the sting will fade.

http://www.clarionledger.com/apps/pbcs.dll/article?AID=/20050501/OPINION/505010476/1200/OPINION02

Where Is Our Public Access Cable Television?

This is a letter I am sending to Cox Communications, plus government officials who I think can help.

Recently I was in Portland, Ore. I happened to notice that there was true public access cable television. I watched several talk shows covering a variety of topics. There were locally-produced music shows, featuring local bands.

This experience caused me to wonder why Wichita doesn’t have this type of community cable television access. I seem to remember that when cable television was new, that local governments were granted public access channels as part of the franchise agreement. In Wichita we have a few channels that are used by the City of Wichita and the local school district. It seems to me, however, that these entities use the channels for very little useful programming. Most of the time these channels are rolling the same stale and useless public service announcements, or the same photographs of downtown Wichita statuary for the past few years.

Can you tell me where I can learn about the history of public access cable television in Wichita? Better yet, how can we have a truly public — and therefore truly useful — channel in Wichita?

Ethics Require Two Recusals In School Finance Lawsuit

Thank you to Karl Peterjohn for your insight into the ethical mess that is our Kansas Supreme Court.

Ethics Require Two Recusals In School Finance Lawsuit
By Karl Peterjohn, Executive Director Kansas Taxpayers Network

Would you want to go to court and face a judge who used to serve as legal counsel for your courtroom opponent? That is one of the ethics challenges facing the state in trying to fight off the $1 billion school finance lawsuit in front of the Kansas Supreme Court. This court heard oral arguments again May 11 in this case. There are 15 school districts spending millions of dollars promoting this lengthy lawsuit against the state and its taxpayers.

In addition to this ethical challenge is the fact that the governor’s chief of staff is married to another judge on the Kansas Supreme Court. Would you like to go to court after being sued and face a judge whose spouse is the chief of staff to the person who is leading the challenge against you?

Governor Sebelius has been vocal in blasting the legislature’s very expensive increase of $140 million in state spending for public schools during this year’s legislative session. Sebelius said this massive spending hike was inadequate.

The governor did play Hamlet by not signing or vetoing the school finance bill into law and sending it to the Kansas Supreme Court. Governor Sebelius issued a news release blasting the legislature for being excessively stingy in raising spending for public schools and joined the 15 school districts in advocating higher taxes and spending.

The irony is the fact that the legislature’s spending increase was the largest annual increase during the Sebelius administration. Other legislators said that the $140 million increase was the largest this century. This was certainly one of the largest spending hikes since the current formula was created in 1992.

If you were being sued, and as a taxpayer you are, would you like to face Justice Lawton Nuss, who used to represent your legal challenger, and Justice Don Allegrucci, whose wife is the governor’s chief of staff in this $1 billion case being heard in the Kansas Supreme Court? Nuss was in the law firm that represents the lead plaintiff, the Salina public school district, until he joined the court in October 2002.

Since Justice Gernon’s April death there are now only six members of this court. Two of these judges need to recuse themselves for ethics problems unless we want Kansas legal ethics to become an oxymoron.

School district attorney Alan Rupe has criticized these ethical issues as being “ridiculous.” He has also publicly discussed the fact that this lawsuit involves him suing his ex-wife Carol Rupe who is one of the members of the state board of education. Litigation involving ex-spouses, former law firms, and high level state colleagues is not the way to resolve important public policy issues like Kansas school finance.

The average Kansan is not familiar with the judicial canon that says, “A judge shall not allow family, social, political, or other relationships to influence the judge’s judicial conduct or judgment.” This second canon also says that judges shall, “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” The average Kansan does know right from wrong and having judges with ties to one side of a lawsuit is an insult to fairness and will lead to a tainted decision if these judges participate. In fact, the court’s January 3, 2005 is already tainted by these two judges’ participation in that preliminary decision in the school finance lawsuit.

The school districts are now using lawsuits to try and raise taxes instead of going through the legislature to raise taxes like everyone else. This has created the odious position that the taxpayer funded school districts are using tax funds to sue the state that is using tax funds to defend itself. The only guarantee in this case is that taxpayers will be the loser. If the judges who are not in compliance with their own judicial ethics rules continue in this case, the result will be a travesty of justice and a black eye for the entire legal profession in this state.

Individual liberty, limited government, economic freedom, and free markets in Wichita and Kansas

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