More on Line Item Vetoes

For those of you really, really interested in every aspect of the Arizona Supreme Court's decision in Bennett v. Napolitano, in this post I discussed the Court's comment that these lump-sum reductions were a new and unlikely-to-be-repeated legislative tactic, thus supporting the Court's reluctance to decide the dispute. I noted that Gov. Hull had used her line-item veto power several times in striking similar appropriations that attempted to reduce overall spending. Two lawyers familiar with the case have noted that there are some differences in how the Hull and Napolitano vetoes operated that might, or might not, be significant.

Eight of Hull's similar line-item vetoes involved attempted reductions passed in a subsequent special session from previously-appropriated sums, while the Napolitano vetoes involved positive appropriations and lump-sum reductions in the same bill. The Court had previously approved the governor's use of the line-item veto in that former situation (the subsequent reduction of a previously-approved appropriation) a decade ago in a case called Rios v. Symington.

However, one Hull line-item veto of a lump-sum reduction did occur during the same legislative session in 2002, where the legislature appropriated a series of sums for ADOT, but then tried to reduce that overall amount by the lump-sum reduction technique. It's not clear from the record if that one particular veto involved a reduction in a different appropriations bill, even if passed during the same session, or the kind of now-you-see-it, now-you-don't legerdemain where the reduction is put into the exact same bill as in Bennett.

Putting the reduction in the same bill, as opposed to the next bill passed by the same legislature in the same session, may or may not have dispositive significance. We're unlikely to find out, because the legislature needs to come up with a new set of budget tactics anyway. But there may be enough factual difference, even if those differences don't seem determinative to you or to me, to make the Court's statement in ¶35 of the opinion that "the manner of formatting these reductions" may have been a first-time event indeed accurate. You may have to split the hairs pretty fine to uphold that particular dictum, but hey, we lawyers do that every day (and appellate judges get to do it twice a day, minimum).

Remember When Rush Limbaugh Supported Local Law Enforcement?

My column this past week ran on Monday, rather than Sunday; the last Sunday of the year is a reprise of the "best" of the Tribune's editorial cartoons, so I got bumped even though I think this is brand new political humor. A special recognition to my "cousin-in-law" [actually, my late father's second wife's third husband's daughter-in-law, which sort of makes her a cousin, doesn't it?] who came up with the "if the drugs addict, you can't convict" line. My first attempt didn't even rhyme.

You can see the actual newspaper version on the Tribune website here.


RUSH'S TRIAL WILL BE O.J. FOR WHITE FOLKS
East Valley Tribune, Dec. 29, 2003

I’m going to enjoy the Rush Limbaugh illegal drugs, doctor shopping, and potential money-laundering trials. It’s going to be O.J. for white people.

Let’s dispense with the preliminaries first. Limbaugh is entitled to precisely the same presumption of innocence and forgiveness of all-too-human frailty as he gave to others. Which is to say, none. Let the fun commence!

The Limbaugh trial will have it all, just like the O.J. trial did. You’ve got the celebrity defendant trying to convince both a judge and public opinion that he was framed. To buy that, you have to believe that Rush Limbaugh couldn’t have gone to the authorities because a prominent rich Republican simply couldn’t get a fair shake in Jeb Bush’s Florida.

You’ll also see starkly different attitudes toward the case among demographic categories. Just as African-Americans found it resonated with their experience that the police could frame a black man -- even a celebrated, rich one -- lots of Limbaugh’s white listeners will find themselves believing whatever cockamamie excuse Rush concocts for his illegal drug use and money laundering. After all, “dittoheads” are already trained to accept what Rush tells them, no matter how ridiculous.

You’ve also got the defendant trying to blame the supposedly real criminals. O.J. claims to be still searching for the real killers, while Rush claims that his housekeeper and her husband, who got him all those expensive illegal drugs at his request, are extortionists and really at fault. If only they had delivered the drugs in a white Ford Bronco.

You’ve got the celebrity criminal lawyer taking center stage, too. In Rush’s case, it’s Roy Black, the same attorney the Kennedy family uses for criminal unpleasantness in Palm Beach County. When he finds his life in danger, even Rush Limbaugh hires a Democrat.

Now Rush can get one of his lawyers to claim that drug addiction excuses any crimes. That way Limbaugh can get the benefit of the excuse, while still claiming that he never made excuses for his behavior -- because he pays other people to make those excuses for him.

I can’t wait until Limbaugh's lawyers use the Johnnie Cochran rhyming defense strategy, telling the jury, “If the drugs addict, you can’t convict!”

You’ve got a rich defendant who can hire the best attorneys his money can buy, going up against a standard-issue government-employee prosecutor. Your run-of-the-mill defendant can’t hire the professionals needed to create a Hollywood surprise ending that generates sufficient sympathy or doubt with the jury. Instead, they get no-frills assembly-line justice. It takes a bunch of money to generate a television-worthy plot and create an implausible scenario that a jury might consider as reasonable doubt -- money available to both O.J. and Rush.

Not all well-connected rich people would be able to pull off this far-fetched a scenario. Just imagine if Bill Clinton had tried to blame his troubles on an extortion attempt by enemies. You’d laugh it off in a New York minute, and start impeachment proceedings immediately.

The Limbaugh trial also will be richly leavened with all sorts of references to constitutional rights of the defendant, which might even be ironic if in this case the defendant hadn’t made so much of his career by denigrating those rights when applied to others. Just like how Fife Symington became a fan of the Ninth Circuit only when it reversed his criminal convictions, Limbaugh might view the justice system just a teensy bit differently -- unless he really is incapable of thinking beyond his own person, wallet, and ego.

Another question: If Rush Limbaugh’s trial will be O.J. for white people, what will Michael Jackson’s trial be? My tentative answer: O.J. for aliens.

Is There a Principle Here, or Do We Just Invade When Bush Says So?

This column actually ran on Dec. 21, but that afternoon I left on a family vacation, so it's only getting posted today. My next column has already run but I'll post it tomorrow.

Have you signed up to give blood yet? The blood donation pitch made it into the blog-and-email version of my column, because I control that, but not the paper, so I repeated it at the end of this column. I learned it got cut for space limitations, not because of some libertarian belief that giving blood interferes with the free market in corpuscles or something.

BUSH'S JOHNNY-COME-LATELY HUMANITARIANISM
East Valley Tribune, Dec. 21, 2003

Exactly when did Republicans decide that America needed a more militaristic and expensive version of Jimmy Carter’s foreign policy’s focus on human rights?

With no WMD found in Iraq despite the Administration’s pre-war claims -- remember the 25,000 liters of anthrax? The 500 tons of nerve gas? The 38,000 liters of botulism toxin? -- the administration now justifies sending essentially all our combat-ready forces to Iraq on humanitarian grounds.

In 2000, George W. Bush said we shouldn’t use our military for nation building. Now it’s a wonderful thing for our collective national character to “slog” through building a nation for the Iraqis.

I’m all for freedom and a better life for people worldwide, or for hard work building character. But why did those who objected so vehemently to U.S. involvement in Haiti, Bosnia, and Kosovo suddenly become humanitarian interventionists for Iraq?

The civil wars in Sudan and Sierra Leone, the genocide in Rwanda, and AIDS all killed more innocents than Saddam Hussein. People suffer the world over, and everything inflicted on the Iraqi people happened elsewhere, without denting our consciousness.

Aren’t North Korea or Burma also despotic and inhumane? Maybe they’re too remote, and what happens in the Middle East matters much more. But Bush isn’t pushing Saudi Arabia or Kuwait toward democracy -- and is telling Taiwan not to expand voting rights.

It’s laudable we’re asking other countries to reduce Iraq’s foreign debt so the new government can devote its resources to improving the country. But hundreds of millions of people live in dozens of developing countries whose governments must spend more on debt service than social services. Don’t they also deserve debt relief?

I await the 2004 presidential debates, where President Bush will ask voters whether the Iraqi people are better off today than they were four years ago.

It is, of course, wonderful that we’ve liberated Iraq, and will be even more wonderful if we can create a country -- or a civil society -- essentially from scratch. But that’s not why we were told we had to go to war with Iraq, without delay, and whether or not we got any real help from any other countries.

Bush justified this war as preemption, necessary to protect America. That just wasn’t true; we’ve found neither WMD nor operational links to Al Queda. So we now get the humanitarian justification, which Bush isn’t applying anywhere else -- except for token efforts when he can’t avoid it entirely, like Liberia.

Is the Iraq war and reconstruction the foreign policy version of the Bush v. Gore decision -- good for this day and train only? Conquering Afghanistan made sense; the Taliban were giving Al Queda a base of operations, and today our allies have more troops there than we do. But what principles justify our selective, optional, go-it-alone humanitarianism in Iraq?

Or does George W. Bush get to choose a war, whatever the justification, and all the Republicans just fall into line?

* * *

While pondering America’s role in doing good for one (and only one) foreign country, you need to do something good here in Arizona. You may have noticed that my Dec. 7 column asked you to perform five good deeds before the year-end, but space limitations eliminated my fifth request: Give blood.

As reported by The Tribune’s Joe Kullman, local blood supplies are at their lowest levels in decades. It’s always tight during the holidays, but flu season (and the mistaken belief that a flu shot keeps you from donating, which it doesn’t) have made the shortage critical. Call United Blood Services at (602) 431-9500 to schedule an appointment, or use their website, www.bloodhero.com. Do it now. Please.

The Arizona Supreme Court Throws a Brushback Pitch at the Legislature

This week's column is on the Arizona Supreme Court decision in Bennett v. Napolitano, which you can read for yourself here if you don't want to take my word for it.

Among the interesting sidelights that didn't make my column is the part of the opinion where the Court says that its refusal to become involved in what is essentially a political dispute is supported by the fact that these "lump sum reductions" were a new, never-before-tried, and unlikely-to-be-repeated budget tactic by the legislature. (See ¶35--"We conclude, however, that the unusual method of legislative structuring used in the vetoed reductions at issue in the instant case is likely a non-recurring event. Indeed, neither party has offered evidence that the manner of formatting these reductions in the current budget cycle has ever before been utilized by the legislature.")

I'm not sure that's correct, even though it's dictum and not important to the Court's decision. It appears that Gov. Jane Hull, Gov. Napolitano's predecessor, used the line-item veto a couple of times on some appropriations bills, with the similar effect of increasing the amount of spending authorized by the legislature. However, Hull was a Republican, so the GOP-controlled legislature didn't squawk about it, and I guess it didn't make it into anybody's briefs in the case--or if it did, it got overlooked. But the really big news about the opinion is the Court telling everybody that ORBs, which have been pretty useful to leadership, are pretty much unconstitutional.

For out-of-state readers, on Saturday the legislature and governor reached a compromise on CPS funding and reforms. It's half a loaf and just a start, but it's a start nonetheless. Apparently, cards and letters helped, so get ready to keep those emails coming once the regular session begins next month.


COURT DENIES GOP LEADERSHIP A FAVORITE TACTIC
East Valley Tribune, Dec. 14, 2003

The GOP legislative leadership didn’t just lose this year’s new budget stratagem when the state Supreme Court refused to overturn Gov. Napolitano’s line-item vetoes. They also lost their favorite unconstitutional tool of the past few years, the omnibus budget reconciliation bill (ORB).

To understand the Supreme Court decision, you should understand just how sneaky these vetoed “lump sum reductions” were. The GOP leadership tried (but failed) to outfox the governor with this new legerdemain -- never attempted before and, now that the Supreme Court has spoken, presumably never again.

Here’s how it worked. The Legislature approved spending for specific accounts within various agencies, because micromanaging is loads of fun if you aren’t responsible for running anything. Then, after supposedly appropriating specific sums for these programs, the appropriation bills listed unspecified “lump sum reductions” that reduced overall agency spending.

That’s theoretically a “spending cut” -- promising four programs $50 each, letting legislators claim they voted to give each program $50, while telling the agency somehow to spend only $150 because of an unspecified $50 “lump sum reduction” that only can come from those four programs.

It’s a truly cynical, underhanded move, designed to let legislators do what they do best -- pretending to cut overall spending without ever cutting any specific spending. If anyone complains, they say it’s the governor’s fault.

Legislative leaders then claimed Gov. Napolitano asked for these “lump sum reductions,” but that’s just wrong. The governor did request lump sum appropriations -- where the legislature specifies an overall amount for an entire agency, but leaves it to the governor to allocate funding for individual programs. But the Legislature wouldn’t give this governor that much flexibility, so they developed the “lump sum reduction” tactic, trying simultaneously to micromanage, avoid responsibility, and lie. Call it the “Fast Eddie” Farnsworth Trifecta.

GOP leaders feigned outrage that Gov. Napolitano would use the line-item veto in ways they didn’t approve, resulting in increased overall spending by restoring the Legislature’s own subtotals. But the governor got to increase spending only because of these cockamamie “lump sum reduction” line items. No line items, no vetoes.

Besides, their complaints about use of the line-item veto seem a bit, well, partisan. When he was governor of Wisconsin, U.S. Health and Human Services Secretary Tommy Thompson used his line-item veto power to strike specific words in legislative enactments, making the resulting laws mean something entirely different. Republicans considered that just dandy.

Most importantly, the Supreme Court also told the legislature that their usual way of doing business, by bundling numerous statutory changes into these massive ORBs, appears to violate the Arizona Constitution’s “single subject rule,” which requires legislative enactments to “embrace but one subject.”

The single-subject rule prevents “logrolling,” where leadership crams numerous bad things with the good (or at least necessary) to strong-arm legislators into swallowing the entire package. The GOP leadership admitted as much after the decision, acknowledging that they didn’t know how to pass the unpopular stuff if they couldn’t hide it in the must-pass bills. Apparently Jake Flake also loved Pirates of the Caribbean; to him, it’s not a constitution, it’s more like “guidelines.”

The public interest won’t suffer if ORBs disappear, but legislative Pooh-Bahs will. They used bloated, massive ORBs to force the rank-and-file to vote for unpopular, last-minute legislation, and don’t have a replacement tactic available. If each bill has to rise or fall on its merits, leadership’s in deep trouble.

That’s the real result of the Supreme Court decision. Not only didn’t the legislative leadership win, they lost big time. Let see if these guys can figure out how to do things constitutionally in the future. Here’s betting it won’t be pretty.

Google Bombing

Unelectable? That's my fair and balanced conclusion. Yes, I said unelectable. Do you need me to spell unelectable, or is using the word "unelectable" enough?

The Annual Tax Credit Roundup Column

I got shortened this week by my editor. I suggested 5 things you should do before year-end, and the last one, giving blood, got cut. (He chopped out the blood donation, forgot to change the 5 things to 4 in the opening paragraph, and cut the crack about the public school credit helping the richer get richer. Sheesh.) I also had to submit my column before I got my neighbor's annual pitch for the Family School, so I'm giving you the column the way it should have run, not as it did.

Arizona residents should do all 5. Out of state readers still can give blood or make a deductible (but not fully refundable) contribution to these good causes.

USE BAD LAW TO DO SOME GOOD
East Valley Tribune, Dec. 7, 2003

It’s time for your annual reminder about the dizzying variety of state income tax credits letting you do good, for free. Anyone itemizing deductions (and without Alternative Minimum Tax liability) can make lots of state tax liability disappear. It’s foolish public policy, but it’s the law, so do the right thing -- at least five times -- by December 31.

First, there’s a credit (up to $625 for married couples filing jointly, $500 for individuals) for donations to “private school tuition organizations.” You get your entire donation credited in April on your state income taxes.

Don’t know a PSTO? The Arizona Department of Revenue lists some here. Don’t want to choose one in an uneducated manner? Give to Schools With Heart, 1131 E. Highland, Phoenix, AZ 85014, and designate your check for the Family School kindergarten program, which serves 62 children from diverse backgrounds.

Second is the separate-but-not-equal credit for public school contributions, up to $200 (individuals) or $250 (couples). You must give directly to the school; tax-deductible contributions to a PTO or foundation don’t qualify. The Arizona tax credit then refunds your entire donation.

Need a suggested school? The Arizona Department of Education has a school locator here. You can enter a name, city, or ZIP code and find contact information for both public and charter schools.

Need more instruction? Send your check to Kent Scribner at the Isaac School District, 3348 W. McDowell Road, Phoenix, AZ 85009. Over 90 percent of Isaac students are at or below poverty level; 62 percent don’t live in English-speaking homes. Last year, Isaac received approximately $3.17 in tax credit donations per student, compared to $34.49 for Mesa and $59.90 for Scottsdale. Unless you really do believe government’s sole purpose is to help the rich get richer, Isaac needs your help more.

Third, donations to charities helping the working poor qualify for another $200 tax credit (same amount for marrieds and singles). You must make an additional contribution to the qualifying charity over your “baseline” charitable giving. The baseline year is 1996, or the first year after 1996 in which you itemized or after your tax filing status changes. Donate more today, and Arizona repays you dollar-for-dollar.

Need assistance locating a “qualifying charity”? Here’s another list. Too much work in choosing one? Donate to Devereux Arizona’s “My Little Stocking” fund, which provides holiday treats to children in foster care and residential or group home treatment programs. These kids and their families can’t afford necessities, much less holiday gifts. Call Kelly Gonzales at (480) 998-2920 ext. 2105, or use the website.

The fourth widely-available credit helps fund Arizona’s system of publicly-financed elections. It’s the most “generous” of the credits; taxpayers can contribute $550 individually or $1,100 for a couple filing jointly, or 20% of their state tax liability, whichever is greater. Send your check to the Citizens Clean Election Fund at 1616 W. Adams, Suite 110, Phoenix, AZ 85007. You get a dollar-for-dollar Arizona credit, and contributions are also deductible for federal taxes; pay now, get it back in April.

Not only is this credit the biggest available, but it also drives supporters of the private school credit batty, because generally their credit benefits their friends but this one doesn’t. Consistency can be tough sometimes.

Finally, do something else which won’t cost you anything: Give blood. You probably thought about it after 9/11, but they didn’t need blood then -- and now we do, badly. It’s free, less painful (and quicker) than watching the Cardinals, and helps people more than money. Call United Blood Services at (602) 431-9500, or use their website.

You’ve got until December 31 to take advantage of bad law to do good deeds, so get cracking. Happy holidays!