Voice For Liberty

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  • 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.

  • Wichita school informational forums could help increase understanding

    At Monday’s meeting of the board of USD 259, the Wichita public school district, board president Lynn Rogers said he wants to have a discussion about ending balances, in particular unencumbered funds. He said there is misunderstanding in the community, during the bond issue campaign last year, and now with a state school board member. He added that he wants to communicate the meaning of this to the public.

    Rogers didn’t mention the state school board member by name, but I think I can guess who he’s referring to. You can view the member’s less-than-cordial treatment at a recent Wichita school board meeting in this YouTube video.

    There’s a problem at the Wichita school board meetings, as there also is at meetings of many other government bodies. Citizens — even a Kansas State School Board Member — have to speak first, and briefly at that. Then the board members, superintendent, and staff get to speak without fear that the citizen will be able to ask questions, rebut arguments, or just call plain old nonsense for what it is.

    A group in Wichita is considering a public forum to discuss this issue. Hopefully this event will take place, and representatives from the school district will participate.

    The alternative is more meetings where one side only is in control of the agenda, the message, and the flow of information.

  • Kansas university spending and funding

    kansas-regents-logo

    In response to a small decrease in Kansas university funding in next year’s budget, there’s been a bit of overreaction. Consider this Wichita Eagle editorial: “The higher tuition just forced on state universities by the Legislature effectively is a tax increase that will deepen loan debt for some Kansans and put college out of reach for others. And a $66 million cut to higher education is no way to ‘grow’ an economy.”

    Examine the assumptions underlying this:

    1. The only possible response to a small cut in state funding is for universities to raise tuition.

    2. If students have to pay more of the cost of their college education, it’s a “tax increase.”

    3. The response of students to higher tuition will be to increase their student loan borrowing or avoid college.

    4. Spending on universities — as opposed to letting people spend and invest their own money — is the better way to grow the Kansas economy.

    The most nonsensical of these is the claim of “tax increase.” Taxes are paid involuntarily. Attending college is a decision. Asking working Kansans to pay more for students to attend college: That is taxation.

    Aside from this, Kansas regents universities — as is the case almost universally — have been increasing spending and tuition. Analysis by Kansas Policy Institute shows that for most Kansas regents universities, spending and tuition increases rise faster than inflation. Many times faster, in some cases. The KPI study is A Historical Perspective of State Aid, Tuition and Spending for State Universities in Kansas.

    Below, Kansas Representative Marc Rhoades, who is Chair of the House Appropriations Committee, explains more about the funding and spending of Kansas regents universities, and recognizes the Washington Monument strategy employed by KU in an effort to shape public opinion on this matter. It worked on the Wichita Eagle editorial board.

    Asking Questions of Higher Education

    By Kansas Representative Marc Rhoades

    Year after year, despite unchanged or increased state funding, the six state-funded Kansas colleges increased tuition far above inflation with little scrutiny. Undergraduate tuition and fees at the six universities increased 137 percent between 2002 and 2012. From 2002 to 2012, KU raised fees and tuition by 194 percent; KSU by 170 percent; and WSU by 117 percent.

    Universities’ All Funds spending was $1.814 billion in 2005; $2.186 billion in 2008; and $2.421 billion in 2012 — a 33 percent increase in spending even with a recession.

    Since 2003, unencumbered carryover cash balances in two student fee accounts increased by $248 million. In other words, they collected almost a quarter-billion dollars more in fees than they spent on whatever the fees were earmarked to do. General Fees plus interest earned on those accounts can be used for other purposes — say, for example, holding down tuition increases. Instead, students paid more in fees and more in tuition and the fee accounts kept accumulating.

    This year the legislature examined the numbers and asked questions with a desire to initiate an open conversation about higher education spending, tuition and student outcomes.

    The end result: a 1.5 percent reduction to Regents which hardly qualifies as a slash, but that’s the narrative being used; and since State Aid represents less than half of their General Use Expenditures, a 1.5 percent reduction in their State Aid amounts to a 0.7 percent reduction to that account.

    Compare a 1.5 percent State Aid reduction with recent requests from Kansas colleges for increases in tuition up to 8 percent next year, even with inflation below 2 percent.

    But the template never changes: Demands for more spending are always “modest and necessary”; reduced spending is always “drastic and draconian” — regardless of the amounts or how the money is used.

    The legislature did not set out to reduce funding. We simply had questions.

    Why so many unfilled FTE positions perpetually placed on the books with money systematically diverted for other uses?

    Even factoring for inflation, why has tuition gone up so much without a correlation to past increases in state funding?

    When defaulted on, students’ government-backed loans are paid for, ultimately, by taxpayers, so shouldn’t improved graduation and employment rates be prioritized over even higher salaries to the already-highly-paid?

    By the way, the salary cap we requested was not a cut. You will hear it referred to as a cut, even though salaries were held level and not reduced.

    I serve as a commissioner with the Midwest Higher Education Compact — a 12-state network of universities. Last week I attended a commissioner’s meeting in Indiana where we heard from current and former chancellors about the future of higher education. Similar to other sectors — healthcare, for example — there are two very different driving forces promoting two very different paths: collective institution-oriented versus individual outcomes-oriented.

    College students, many unemployed and underemployed, are buried in debt while universities appear more focused on impressing their peers and expanding their infrastructure.

    Indiana colleges, among others around the country, are addressing this disconnect. Indiana University-East, just one example, increased its student numbers and graduation rates while decreasing cost-per-student over 20 percent.

    Kansas state-funded colleges have been raising tuition at astronomical rates, but under the radar. The only difference this year is they are vocal about increasing tuition using the legislature’s 1.5 percent budget reduction as a scapegoat.

    Early in the session, following a discussion about spending and outcomes, KU’s response was to threaten closure of some of Kansas’ most viable institutions: KU’s medical campuses in Wichita and Salina. It was a classic bully move. Rather than address legitimate financial questions, they made threats to cut something highly valued by all. Think White House tour closures.

    In response, the House and Senate conference committees added a proviso to the budget to prevent those closures from happening, even though insiders understood KU’s intention was to stir up angst among constituents in order to intimidate legislators so they would stop asking questions and hand over the money. Think shakedown.

    When the endgame shifts to quantifiable student outcomes — retention and graduation rates, realistic employment tracks, greater efficiencies, reduced costs, lower tuition — collaborative conversations can take place and real-world results can be achieved in Kansas. I remain hopeful and open to such a dialogue.

  • Kansas City school district figures

    The Kansas City, Kansas school district has implemented layoffs and salary cuts. Following are some charts of statistics for this district. Data is from Kansas State Department of Education. Click on charts for larger versions.

    Spending in Kansas City school district.
    Spending in Kansas City school district.
    Enrollment and employment in Kansas City school district.
    Enrollment and employment in Kansas City school district.
    Fund balances for Kansas City school district.
    Fund balances for Kansas City school district.
  • Kansas revenue estimates

    Kansas revenue estimates

    Kansas revenue estimates are frequently in the news and have become a political issue. Here’s a look at them over the past decades.

    A favorite criticism of liberals and progressives across the nation is that in Kansas, actual revenues to the state’s general fund have fallen short of projections, month after month. Reading most newspaper reports and editorials, one might think that these negative variances are a new phenomenon, and one relished by the Left. As many as a dozen articles on this topic have appeared in the New York Times in the past two years.

    The revenue estimates in Kansas are produced by a body known as the Consensus Revenue Estimating Group. It consists of one member each from the Division of the Budget, Department of Revenue, Legislative Research Department, and one consulting economist each from the University of Kansas, Kansas State University, and Wichita State University.

    As described: “This group meets each spring and fall. Before December 4th, the group makes its initial estimate for the budget year and revises the estimate for the current year. By April 20th, the fall estimate is reviewed, along with any additional data. A revised estimate is published, which the Legislature may use in adjusting expenditures, if necessary.”1

    The estimates are important because the legislature and governor are required to use them when formulating budgets and spending plans. If the estimates are high, meaning that revenue is less than expected, it’s possible that the legislature or (more likely) the governor will need to make spending cuts. (The other alternative is that leftover funds from prior years may be used, if available.)

    If, on the other hand, the estimates are too low, meaning that revenue is higher than expected, the state has collected too much tax revenue. In this case, the state should refund the excess to taxpayers. Some states do that, notably Colorado, although residents may vote to let the state keep the excess.

    Some states have true rainy day funds, and the excess revenue might be used to build that fund’s balance. In a true rainy day fund, the fund’s balances can be spent only during specific sets of circumstances.

    But in Kansas, the excess revenue is simply called the “ending balance” and is available to spend at the legislature’s whim. That’s what happened in fiscal years 2014 and 2015, when the state spent $340 million and $308 million, respectively, of the ending balance rather than cut spending.

    What has been the history of the revenue estimates compared to actual revenue? First, know that making these estimates is not easy. Some of the inputs to the process include the inflation rate in future years, interest rates in future years, and the prices of oil and natural gas in the future. If someone knew these values with any certainty, they could earn huge profits by trading in futures markets.

    The state makes the revenue estimates available.2 I’ve presented the results since 1975 in a chart at the end of this article. For each year, two numbers are presented. One it the difference from the Original Estimate and actual revenue. The other is the difference from the Adjusted Final Estimate and actual revenue.

    We can see that in fiscal years 2014 and 2016, the variance of the estimates is negative, meaning that revenue was lower than the estimates. The magnitude of these variances, however, is not out of line with the magnitude of the variances of other years, either positive or negative.

    In fact, the negative variances — revenue shortfalls, in other words — in the periods 2002 to 2003 and 2009 to 2010 were generally much larger in magnitude than those of recent years. This is of interest as Duane Goossen, who was the budget director during these periods, is a prominent critic of the recent revenue shortfalls. Evidently, he has forgotten the difficulty of creating these estimates.

    While Goossen along with newspaper reporters and editorialists use the negative revenue estimate variances as a political weapon against the governor and conservatives, it is in the interest of the people of Kansas that revenue estimates be as accurate as possible. In an effort to produce more accurate revenue estimates, Governor Brownback created a commission to study the issue. That group released its report in October.3

    Kansas revenue estimate errors. Click for larger.

    —
    Notes

    1. Consensus Revenue Estimating Group. Available at budget.ks.gov/cre.htm. ↩
    2. Kansas Division of the Budget. State General Fund Receipt Revisions for FY 2016 and FY 2017. May 2, 2016. Available at: budget.ks.gov/files/FY2017/CRE_Long_Memo_April2016.pdf. Also Kansas Legislative Research for 2016 figures. ↩
    3. Governor’s Consensus Revenue Estimating Working Group. Final Recommendations. Available at budget.ks.gov/files/FY2017/cre_workgroup_report.pdf. ↩

  • Kansas spending is the problem

    While Kansas Governor Sam Brownback has some good ideas in his State of the State address and tax reform plan, there are two important points that need to be made.

    First, the governor has said that tax reform is designed to be revenue neutral. That goal means that if one person pays less, someone else has to pay more. It also means that the state’s thirst for spending is not quenched. It is continued spending that prevents us from dramatically reducing or eliminating income tax rates in Kansas.

    Critics of lowering income tax rates point to the advantages that states with no income tax have. Texas is often mentioned, where it is said that the state’s oil wealth and the taxes it generates make it possible for Texas to have no income tax.

    There are two rebuttals to this argument. First, Kansas may have much new activity in oil and gas in the very near future. With the severance tax and taxes from other economic activity — as many as 25,000 jobs and $5 billion in investment over five years — new revenue may be flowing to the state. Brownback has called for limiting the growth of state spending to two percent annually, with revenue growth above that dedicated towards reducing income tax rates.

    The second rebuttal is that states with low or no income tax generally spend much less than Kansas. Using figures I compiled for 2010, Kansas state spending per person is $4,923, which ranks it 35th among the states. Only 15 states spend more than Kansas, on a per person basis.

    Texas, with no income tax, spends $3,703 per person. Florida, another state with no income tax, spends $3,300 per person.

    Kansas Democrats have called for restoring school spending, and increasing it in the future. They have other plans for state spending, too. That’s why it is important that Kansas implement something that 47 states have, but Kansas does not. Unfortunately, the governor didn’t mention it in his address. That missing ingredient in the Kansas state financial plan is a rainy day fund.

    Rainy day funds operate in different ways in the states that have them, but generally there are strict rules about spending the money in the fund. A rainy day fund would have helped Kansas whether a downturn in revenue without resorting to a tax increase. That’s vitally important, as once tax increases are in place, they are very difficult to remove. We have such an example of this now in Kansas: The increase in the statewide sales tax, promoted to last just three years, is now recommended to be permanent, according to the governor’s plan.

    (Shifting sands: Kansas Senator Carolyn McGinn, who voted for the sales tax increase, now wants it ended a year earlier than originally planned. That was a transparent response to her having to face a conservative challenger in her primary election this year. But now she finds herself opposing the governor on this issue.)

    Kansas has a requirement for a 7.5 percent ending balance in the general fund. That requirement is often waived by the legislature, as it has been for several years in a row. Rainy day fund legislation is often implemented in states’ constitutions, which can’t easily be waived or ignored by spending-happy legislature. The strict requirements as to how and when the fund balances can be spent is much different from a simple ending balance. Kansas Democrats, for example, are calling for spending the year’s ending balance.

  • Social Security Trust Fund: Why no truth?

    Regardless of one’s attitude towards the Social Security system, the refusal by liberals to admit the fraud of the system’s trust fund remains an obstacle to honest discussion of the system’s future.

    Here’s an example from a prominent defender of the myth of the Social Security Trust Fund, Sen. Bernie Sanders of Vermont. In an editorial from earlier this year, Sanders said those who tell the truth about the Social Security Trust Fund are a “barrage of misinformation.” He went on to describe the trust fund: “Social Security invests its surpluses, as it should, in U.S Treasury bonds, the safest interest-bearing securities in the world. These are the same bonds that wealthy investors and China and other foreign countries have purchased. The bonds are backed by the full faith and credit of the U.S. government, which in our long history has never defaulted on its debt obligations. In other words, Social Security investments are safe.”

    Closer to home, and typical of many hometown newspapers, a recent letter in the Wichita Eagle read: “There is $2.5 trillion in the trust fund as U.S. Treasury bonds. These bonds are just as real as those held by mutual funds and foreign banks.”

    The debate over the nature of the trust fund is important. It strikes at the trust we should have — or not have — in government.

    So: Is there $2.6 trillion in treasury bonds in the trust fund, and will the bonds be repaid?

    Yes, I believe it is true. These bonds, all $2.6 trillion, will be repaid.

    That simple belief, however, is an example of what economist Thomas Sowell calls “stage one” thinking. This mode of thinking looks at only the immediate effects or implications of something. It doesn’t ask the question: “And then what will happen?”

    Simple as this seems — “What happens next?” — we find this to be an afterthought in politics. Writes Sowell: “Most thinking stops at stage one. In recent years, former economic advisers to presidents of the United States — from both political parties — have commented publicly on how little thinking ahead about economic consequences went into decisions made at the highest level. This is not to say that there was no thinking ahead about political consequences. Each of the presidents they served (Nixon and Clinton) was so successful politically that he was re-elected by a wider margin than the vote that first put him in office.”

    In the case of the Social Security Trust Fund, the bonds it holds will be repaid. But we need to ask the “stage two” question: “What must the government do to pay back the bonds in the trust fund?” First, we must recognize that the federal agencies that received the proceeds of these bonds promptly spent the money. They didn’t spend it on income-producing assets that might generate a stream of cash flows that could be used to pay off the bonds. Instead, the money was spent on the day-to-day-operations of the federal government. This represents money that Congress and the president spent without specifically raising taxes or borrowing through the normal process.

    At some time when the Social Security Administration wants to redeem the bonds, there are three choices: Raise taxes, reduce services, or create new money through the Federal Reserve System. Each robs us of wealth — either by paying more taxes, paying the same taxes for fewer services, or having the value of our money stolen through inflation.

    It’s not just me who says this. Here’s a cautionary note from the Social Security Administration Performance and Accountability Report (PAR), fiscal year 2010, page 111: (OASI and DI trust funds are the two major components of Social Security that are financed by the payroll tax deduction.)

    The U.S. Treasury does not set aside financial assets to cover its liabilities associated with the OASI and DI Trust Funds. The cash received from the OASI and DI Trust Funds for investment in these securities is used by the U.S. Treasury for general Government purposes. Treasury special securities provide the OASI and DI Trust Funds with authority to draw upon the U.S. Treasury to make future benefit payments or other expenditures. When the OASI and DI Trust Funds require redemption of these securities to make expenditures, the Government finances those expenditures out of accumulated cash balances, by raising taxes or other receipts, by borrowing from the public or repaying less debt, or by curtailing other expenditures. This is the same way that the Government finances all other expenditures.

    There it is: “This is the same way that the Government finances all other expenditures.” There are no economically valuable assets in the trust fund. There is simply the realization that the U.S. government will tax more, provide less, or inflate the currency in order to make good on its promises. If you need any other proof, here’s another passage from the same report:

    Treasury special securities are an asset to the OASI and DI Trust Funds and a liability to the U.S. Treasury. Because the OASI and DI Trust Funds and the U.S. Treasury are both part of the Government, these assets and liabilities offset each other for consolidation purposes in the U.S. Govemmentwide financial statements. For this reason, they do not represent a net asset or a net liability in the U.S. Govemmentwide financial statements.

    It is as if I lend my wife $20 and accept her promise to repay. The financial position of my family has not changed.

    The question is: Why do so many not want to face the facts about the Social Security Trust Fund?

    The reason is that we’ve been lied to by politicians of both parties, and by politicians both conservative and liberal. Politicians like Sanders are still lying to us. The sham of the trust fund is an indication of the failure of government, and politicians of all parties do not want to admit this.

    We must realize that no matter how bad the behavior of past politicians, the reality of the Social Security Trust Fund is the hand we’ve been dealt, and the basis on which decisions about the future must be made. The continuing refusal by most liberal politicians, starting with President Barack Obama, to accept this reality is harmful and is an obstacle to forging a solution.

  • Michelle Malkin on bloggers and tea party reaction

    Saturday in Northbrook, Illinois, about 300 people gathered to attend an awards ceremony presented by the Sam Adams Alliance.

    One of the presenters was Michelle Malkin, who has been at the forefront of blogging for a long time. She’s also been involved in the recent tea party movement.

    In her remarks (introducing my friend Chad Everson as winner of the best state blogger award), she talked about the differences between traditional news media and blogging.

    “I have watched as the dinosaur media strains and groans in the face of competition from citizen journalists and citizen bloggers,” she said.

    Often these citizens have outworked the legacy media. The professional media hasn’t welcomed citizen journalists– in fact they’ve been bitter.

    She mentioned Jonathan Klein, former executive vice president of CBS News, who said “You couldn’t have a starker contrast between the multiple layers of checks and balances [at 60 Minutes] and a guy sitting in his living room in his pajamas writing.” This was at the time that Dan Rather of CBS was promoting a fraudulent story that was uncovered by bloggers.

    She mentioned Steve Lovelady, managing editor of the Columbia Journalism Review, who described bloggers as “salivating morons who make up the lynch mob.”

    Malkin said that bloggers are often described as snarky and profane. “Anyone who has tuned into CNN and MSNBC over the last week and heard untold vulgar sexual innuendos about teabagging can tell you who has been the salivating lynch mob, and who has been vulgar and profane.”

  • Kansas has the appearance, without the reality, of judicial accountability

    Friday’s Wichita Eagle contained an op-ed by a University of Kansas law professor that discussed the method of selecting supreme court justices in Kansas. (Stephen J. Ware: Open up Process of Picking Judges, January 23, 2009)

    A Kansas blogger (The Kansas Jackass) noticed this piece and attempted to take Prof. Ware to task. But it seems like the Jackass is unable to grasp the meaning of one of Prof. Ware’s central points: that in a judicial retention election, there is no opposition candidate. Equating judicial retention elections with contested races for, say, a seat in the legislature ignores political reality.

    That’s one of the things that makes the Jackass argument seem reasonable. There are, in fact, retention elections — the Jackass is correct on this. But political reality is different, and Prof. Ware provides plenty of evidence of this. It’s summarized in his assessment that the current system gives the “appearance, without the reality, of judicial accountability to the citizenry.”

    The Jackass also presses her case by alleging a subtext in Prof. Ware’s article that doesn’t exist.

    I don’t know why the Jackass is so adamant in her support of a system that is at the extreme end of the spectrum of 50 states in giving a voice to the people. Except: the Jackass is an anonymous blogger. Perhaps she has a personal connection to one of the Kansas Supreme Court Justices, or maybe to the current system that selects these justices. There’s no other reasonable explanation as to why someone would be so enamored with this system. Except for being, well, you know the name of her blog.

    To learn more about the selection of justices in Kansas and why we need to change our method of selection, see Kansas Must Change Its Judicial Selection Method.

    Here’s Prof. Ware’s expansion of his op-ed:

    I thank the Jackass for calling attention to my op-ed in the Wichita Eagle. Of course, a short op-ed cannot go into as much depth as a longer article or blog so I appreciate this chance to correct some misunderstandings.

    First, scholars routinely distinguish between judicial selection (how a judge initially gets on the court) and judicial retention (how the judge stays on the court) because selection and retention raise very different issues. My op-ed’s statement about selection is absolutely correct: “All the power in selecting the justices of the [Kansas] Supreme Court belongs to the governor and the bar (the state’s lawyers). So if the governor and bar want to push the state’s courts in a particular direction, there are no checks and balances in the judicial-selection process to stop them.”

    When it comes to retention, reasonable people can disagree about how hard it should be to remove a judge. What reasonable people cannot dispute, however, is that a system of retention elections make it extremely hard to remove a judge. As my op-ed said “these ‘elections’ lack rival candidates and thus rarely include any public debate over the direction of the courts. In fact, a retention election is nearly always a rubber stamp, and no Kansas justice has ever lost one. With these judges so entrenched once they are on the court, the process for initially selecting them is all the more decisive.”

    Retention elections are nearly always rubber stamps, not just in Kansas, but in the other states that use them as well. Professor Brian Fitzpatrick points out that, nationwide, sitting judges win retention over 98% of the time. This rubber-stamp aspect is intentional. As Professor Charles Geyh puts it, “Retention elections are designed to minimize the risk of non-retention, by stripping elections of features that might inspire voters to become interested enough to oust incumbents.”

    Professor Michael Dimino explains: “retention elections protect incumbency in multiple, related ways: They minimize the incentives for opposing forces to wage antiretention campaigns by preventing any individual from opposing the incumbent directly; they eliminate indications of partisanship that allow voters to translate their policy preferences cost-effectively into votes; and they increase voter fears of uncertainty by forcing a choice of retaining or rejecting the incumbent before the voter knows the names of potential replacements.” Prof. Dimino concludes that “retention elections seek to have the benefit of appearing to involve the public, but in actuality function as a way of blessing the appointed judge with a false aura of electoral legitimacy.”

    In other words, the lawyer groups who designed and pushed for retention elections did so to create the appearance, without the reality, of judicial accountability to the citizenry. Very sneaky of them because it fools some people into being distracted by rarely-meaningful retention elections, rather than focusing on the real action: initial selection of judges.

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