A Citizen's Guide to Indiana

HB 1228 – Vouchers for Underperforming Schools

January 16, 2017 by Doug Masson 2 Comments

Rep. Candelaria Reardon (1-800-382-9842) has introduced HB 1228 which is an interesting proposal that I don’t see getting a hearing. It says that, if a voucher school gets a lower performance grade than the public school in which a student lives, then the student can’t use the voucher at the voucher school. If the kid was already at the voucher school, the student can keep attending.

If the purpose of “school choice” is for students to be able to get out of failing schools and move to a better school, then this proposal makes a lot of sense. If the point of the exercise is to subsidize parochial education, to bust unions, or to divert public education money to friends and well-wishers, then obviously this proposal would not be met with favor.

Whether this would save the state money or cost it money is tied to the question of how many students that attend voucher schools would otherwise attend public schools. There seem to be a fair number of kids who were going to attend the voucher schools anyway but are now being subsidized by taxpayers to go to these schools. (“[M]ore than 50 percent of students accepting vouchers had never attended a public school.”) So, in terms of financial impact to taxpayers, the question is whether, if their private school underperformed the public school and they were no longer eligible for a voucher, the kids would stay at the private school or go to the public school in their area.

R.I.P. Gene Cernan

January 16, 2017 by Doug Masson 8 Comments

The Big Blue Marble. Taken December 7, 1972

I remember in the late 80s, when I lived in Richmond, there was a considerable amount of hand wringing about how to repair the G Street Bridge over the Whitewater River. I asked my dad how it was that we were able to ever build these bridges if we were unable to even repair them now. I don’t recall what his answer was. At the time, I think I had Isaac Asimov’s Foundation series on my mind. In that series, the Galactic Empire was failing and the men of that time were unable to repair the great works of earlier times.

Today’s announcement of the death of Gene Cernan reminded me of that conversation with my Dad and, by extension, the diminished stature of the Galactic Empire (which was, itself, based on Asimov’s notion of the Roman Empire).

Cernan passed away at the age of 82. Forty-four years ago, at the age of thirty-eight, he was the last person to walk on the moon on December 13, 1972.

As he climbed the ladder to the lunar module and left the surface of the moon, he said:

[A]s I take man’s last step from the surface, back home for some time to come – but we believe not too long into the future – I’d like to just (say) what I believe history will record: that America’s challenge of today has forged man’s destiny of tomorrow. And, as we leave the Moon at Taurus–Littrow, we leave as we came and, God willing, as we shall return, with peace and hope for all mankind. Godspeed the crew of Apollo 17.

There is a good chance that I’m too focused on the moon as a measuring stick for our capabilities. After all, we (almost) harpooned a comet back in 2014. But it seems to be that the news is full of talk about what we can’t do, what we don’t want to do, what we can’t afford, and what we hate about each other. The fact is, we have not returned to the moon.

Some days, I think we need a Great Purpose to give our lives meaning. Without such a purpose, we take to building up the Other as Great Evils so that we can be heroic protagonists in our own minds. Nobody wants to be an insignificant part of an enormous, indifferent, and rudderless universe. So, we create narratives.

And, if we are not building mole hills into mountains, it feels like we’re drifting toward war just to give ourselves something important to worry about. It would be much better if we had something productive around which to unite and upon which to release our energies and focus our desire to be heroic parts of an epic story. I can think of much worse efforts than space exploration.

This is not, I’m afraid, much of a tribute to Captain Cernan. He was part of a great effort that did incredible things. He said:

“What is the real meaning of seeing this picture? I’ve always said, I’ve said for a long time, I still believe it, it’s going to be — well it’s almost fifty now, but fifty or a hundred years in the history of mankind before we look back and really understand the meaning of Apollo. Really understand what humankind had done when we left, when we truly left this planet, we’re able to call another body in this universe our home. We did it way too early considering what we’re doing now in space. It’s almost as if JFK reached out into the twenty-first century where we are today, grabbed hold of a decade of time, slipped it neatly into the (nineteen) sixties and seventies (and) called it Apollo.”

Hopefully we can build upon his efforts sooner rather than later. I’d rather be of a generation that was part of a continued rise in knowledge, ability, and accomplishment than a generation that was part of a preventable failure in imagination and effort.

About Selling Health Insurance Over State Lines

January 13, 2017 by Doug Masson 8 Comments

One popular conservative response to the call for a health care plan is to talk about allowing health insurance to sell policies across state lines. They respond with this item because, I think, they by-and-large like the idea, and it gives them something to talk about when the question comes up. Providing health care is a hard policy question, and finding a response that doesn’t dwell on ugly truths and/or bore your audience isn’t that easy. Currently, an insurance policy has to conform to regulations in each state. What proponents mean when they say “selling over state lines,” is that, as long as the policy conforms to the rules in the state where the company is located, the company can sell the policy to consumers in other states.

But selling insurance policies over state lines isn’t a good idea. Proponents paint the picture of a robust market where competition drives prices down. But this probably isn’t what the future would hold. We’ve seen the likely result in the context of the credit card industry: a regulatory race to the bottom where the insurers congregate in the state that gives them the most pro-insurance company regulations (which are often, of necessity, a bad deal for consumers).

Ezra Klein described it as follows:

[Conservatives] want insurers to be able to cluster in one state, follow that state’s regulations and sell the product to everyone in the country. In practice, that means we will have a single national insurance standard. But that standard will be decided by South Dakota. Or, if South Dakota doesn’t give the insurers the freedom they want, it’ll be decided by Wyoming. Or whoever.

This is exactly what happened in the credit card industry, which is regulated in accordance with conservative wishes. In 1980, Bill Janklow, the governor of South Dakota, made a deal with Citibank: If Citibank would move its credit card business to South Dakota, the governor would literally let Citibank write South Dakota’s credit card regulations. You can read Janklow’s recollections of the pact here.

Citibank wrote an absurdly pro-credit card law, the legislature passed it, and soon all the credit card companies were heading to South Dakota. And that’s exactly what would happen with health-care insurance. The industry would put its money into buying the legislature of a small, conservative, economically depressed state. The deal would be simple: Let us write the regulations and we’ll bring thousands of jobs and lots of tax dollars to you. Someone will take it. The result will be an uncommonly tiny legislature in an uncommonly small state that answers to an uncommonly conservative electorate that will decide what insurance will look like for the rest of the nation.

For those who put (in my mind) too much faith in the market, this can’t be what will happen. If the widget makers in South Dakota make low-cost but toxic, low-quality widgets while the widget makers in California make high-quality but expensive widgets, why shouldn’t consumers get to take their pick? Primarily because health care has a lot of qualities that make such a choice less than straight forward: the prices are opaque, consumers are going to have a tough time anticipating their needs, consumers aren’t doctors with an understanding of the medicine involved, health care is often not an arm’s length transaction you can walk away from if the terms aren’t to your liking.

Klein reports that a Congressional Budget Office study suggests such legislation “would not change the number of insured Americans or save much money, but it would make insurance more expensive for the sick and cheaper for the healthy, and lead to more healthy people with insurance and fewer sick people with insurance.” I’ve seen some take exception to the idea that the healthy should subsidize the sick; but that’s pretty much the whole idea behind insurance.

That’s not how this works. That’s not how any of this works.

January 12, 2017 by Doug Masson 6 Comments

Rep. Judy wants to repeal environmental protections

Pollution does not respect state borders

Rep. Judy has introduced HB 1127 (317-232-9619). It purports to nullify all regulations of the federal Environmental Protection Agency. The bill preemptively starts with some 10th Amendment gobbledy-gook, then declares all regulations passed by the EPA are void in Indiana. So, according to this statute, Congress has no authority to adopt, say, the Clean Water Act under the commerce clause or otherwise.

First of all, it’s ridiculous posturing to say that every clean water regulation adopted by the EPA under the Clean Water Act exceeds the authority granted under the U.S. Constitution. Second, even if the regulations were unconstitutional, the method for rectifying that is going to a federal court and requesting that a judge strike down the law. The Tenth Amendment zealots might claim that they shouldn’t have to go to a federal court — states are co-equal sovereigns, after all. But that ignores the Supremacy Clause. States can’t unilaterally invalidate a federal statute.

The fiscal note reports that Indiana would lose $24.7 million annually. In this case, it should also probably estimate the cost of fighting and losing the inevitable lawsuits.

And all of this is ignoring the more substantive point that there is a good reason for environmental protection to be the subject of federal regulations. Pollution does not respect state lines. Bad environmental policy in the Midwest can cause acid rain in the Northeast. Federal regulation can help ensure that Indiana does not, for example, externalize the costs of producing energy — reducing its costs and dumping them (literally in some cases) on other states.

HB 1272: Local Government Publication of Notices

January 10, 2017 by Doug Masson 2 Comments

Rep. Negele (800-382-9841) has introduced HB 1272 concerning the situation where publication in a local paper is required but the paper fails to actually follow through with a requested publication. Under the proposed legislation, the local governmental entity could still proceed if it posts printed notice in three prominent places in the political subdivision or on the local government’s website in a location where the notice is easily accessible.

I’m in favor of this. I’ve seen a situation where government action had to be delayed for several weeks because a local paper agreed to publish the notice but due to a clerical error failed to actually make the publication. (What made it worse is that the publication was required in two papers, and it was a much lower circulation paper — so the utility of the notice was questionable at best).

I think we’re getting close to the day when publication of legal notices in the newspaper is going to become obsolete. How many people read the legal notices in the newspaper but don’t have Internet access? Seems like it would be simple enough for the State to create “legalnotices.in.gov/county” for a one-stop repository of legal notices. The cost of the publication is one thing, but what can really be irritating is when the paper has a long lead time to get notices into the paper.

This bill doesn’t go anywhere near that far, but it’s a nice failsafe for the governmental entity that did its part to provide proper notice through the newspaper(s).

HB 1160: Study of Tax Court Effectiveness

January 10, 2017 by Doug Masson Leave a Comment

Rep. Cherry (800-382-9841 has introduced HB 1160 concerning a study of the effectiveness of the Tax Court. It urges the legislative council to assign a summer study committee to review the jurisdiction and role of the tax court, the size of the tax court and its staff, the operations of the tax court, the caseload considered by the tax court, and the number and types of appeals from the tax court accepted by the Indiana supreme court.

The tax court is a specialized court that handles tax matters:

The Tax Court has exclusive jurisdiction over any case that arises under the Indiana tax laws and that is an initial appeal of a final determination made by the Indiana Department of State Revenue or the Indiana Board of Tax Review. In addition, the Tax Court has jurisdiction over certain appeals from the Department of Local Government Finance.

The Indiana Law Blog has previously reported on backlogs at the Indiana Tax Court. Joby Jerrells had a column in the Indiana Lawyer this summer discussing the findings of an ad hoc Tax Court Task Force created by the Supreme Court. Delays at the court seem to be the major issue. Proposals to speed things up include adding a magistrate to the court and possibly expanding the bench to three judges.

SB 293: Certification of Service Animal’s Good Health

January 10, 2017 by Doug Masson 10 Comments

Indiana General Assembly considers regulation of service animals

Sen. Leising (317-232-9400) has introduced SB 293 concerning certification of a service animal’s good health. Currently state law requires public accommodations to permit service animals to enter without requiring an extra fee. The proposed amendment would restrict that to “certified” service animals. The only thing necessary for certification under this proposed legislation is that the animal be certified by a veterinarian as being in good health. The bill directs the board of veterinary medical examiners to come up with standards and prescribe a form for this certification.

I very much sympathize with the goals of this legislation. The well-intended service animal regulations are abused. If a person has a disability and they have a trained service dog that assists with that disability, then it makes all the sense in the world that the normal concerns of public places concerning admission of pets be set aside in favor of letting the person with a disability get along with their life. But, there are people who just don’t want to leave their animals behind. They may or may not be disabled. They have dogs that who might have some general training but not particularly related to their disability. And they’ll maybe flash a card from some Internet mill characterizing the dog as a “service animal.” That puts public accommodations in a difficult spot — basically just abandon their “no pets” policies when they receive the slightest push back, or risk a lawsuit.

However, it seems to me that this particular legislation is likely to cause more harm than good. In particular, I fear that establishments will rely on this legislation, decline entry for a dog who has not been certified, and find themselves on the receiving end of a federal ADA lawsuit. The ADA’s requirements for what constitutes a service animal are poorly defined. It’s only necessary that the animal be “individually trained” to do work or perform tasks for the benefit of an individual with a disability. The work or tasks performed by a service animal must be directly related to the individual’s disability. The nature of the individual training is not defined. The individuals can do it themselves, and there does not appear to be any requirement that the dog be successfully trained or well trained. Additionally, the ADA implementation regulations suggest that an establishment is allowed to ask only ” (1) is the dog a service animal required because of a disability? and (2) what work or task has the dog been trained to perform?” This makes it challenging to ascertain, prior to a lawsuit, whether the training, the work, or the tasks are directly related to the individual’s disability.

I haven’t done any research on how pre-emption of state law by federal law works in this context, but it seems likely that asking about whether the dog is “certified” under this state law would result in a violation of federal ADA regulations.

HB 1133: Prohibition of Local Regulation of Short Term Rentals

January 10, 2017 by Doug Masson 2 Comments

Rep. Lehman (800-382-9841) introduced HB 1133 which prohibits local control of rentals for a term less than 30 days. Specifically, a local unit of government is not allowed to prohibit short term rentals (defined as residential for less than 30 days) or regulate them except for certain specified regulations that are permitted.

My guess is that this is meant to stop local regulation of Airbnb, VRBO type rentals. I don’t particularly like the state pre-empting the locals without some pressing need. So, I’m curious what the pressing need might be in this situation. Also, I wonder how this would affect application of innkeeper’s taxes. The tax is authorized by state law but is enacted by local government. Where such taxes are authorized, they are imposed on lodgings for less than 30 days. By its own terms, HB 1133 does not account for imposition of such taxes. I would anticipate that a court would find that a statute in IC 6-9 authorizing such taxes overrides the prohibition on regulation imposed by HB 1133. But, because it’s not explicit, there is no guarantee.

Chronology of Obamacare

January 9, 2017 by Doug Masson 7 Comments

I’m posting this mainly for my own future reference. It’s an article from July 2015 by Norm Ornstein recounting the passage of Obamacare. From time-to-time, a conservative friend will complain about how the plan was “jammed” through without trying to enlist Republicans. It’s baffling to me when I hear such things because my recollection is of (what seemed at the time) interminable delays as Democrats courted Republican votes in the Senate, and what seemed like Democrats bidding against themselves as Republicans complained about this or that but didn’t propose provisions or alterations that would cause them to vote for the plan.

The Ornstein account of the process squares with my recollection. This long account of the Senate Finance Committee process is what stuck with me and makes me look sideways at folks who say that the Democrats acted precipitously on health care and didn’t try to negotiate the healthcare plan.

But with Obama’s blessing, the Senate, through its Finance Committee, took a different tack, and became the fulcrum for a potential grand bargain on health reform. Chairman Max Baucus, in the spring of 2009, signaled his desire to find a bipartisan compromise, working especially closely with Grassley, his dear friend and Republican counterpart, who had been deeply involved in crafting the Republican alternative to Clintoncare. Baucus and Grassley convened an informal group of three Democrats and three Republicans on the committee, which became known as the “Gang of Six.” They covered the parties’ ideological bases; the other GOPers were conservative Mike Enzi of Wyoming and moderate Olympia Snowe of Maine, and the Democrats were liberal Jeff Bingaman of New Mexico and moderate Kent Conrad of North Dakota.

Baucus very deliberately started the talks with a template that was the core of the 1993-4 Republican plan, built around an individual mandate and exchanges with private insurers—much to the chagrin of many Democrats and liberals who wanted, if not a single-payer system, at least one with a public insurance option. Through the summer, the Gang of Six engaged in detailed discussions and negotiations to turn a template into a plan. But as the summer wore along, it became clear that something had changed; both Grassley and Enzi began to signal that participation in the talks—and their demands for changes in the evolving plan—would not translate into a bipartisan agreement.

What became clear before September, when the talks fell apart, is that Senate Republican Leader Mitch McConnell had warned both Grassley and Enzi that their futures in the Senate would be much dimmer if they moved toward a deal with the Democrats that would produce legislation to be signed by Barack Obama. They both listened to their leader. An early embrace by both of the framework turned to shrill anti-reform rhetoric by Grassley—talking, for example, about death panels that would kill grandma—and statements by Enzi that he was not going to sign on to a deal. The talks, nonetheless, continued into September, and the emerging plan was at least accepted in its first major test by the third Republican Gang member, Olympia Snowe (even if she later joined every one of her colleagues to vote against the plan on the floor of the Senate.)

Obama could have moved earlier to blow the whistle on the faux negotiations; he did not, as he held out hope that a plan that was fundamentally built on Republican ideas would still, in the end, garner at least some Republican support. He and Senate Democratic leaders held their fire even as Grassley and Enzi, in the negotiations, fought for some serious changes in a plan that neither would ever consider supporting in the end. If Obama had, as conventional wisdom holds, jammed health reform through at the earliest opportunity, there would have been votes in the Senate Finance Committee in June or July of 2009, as there were in the House. Instead, the votes came significantly later.

To be sure, the extended negotiations via the Gang of Six made a big difference in the ultimate success of the reform, but for other reasons. When Republicans like Hatch and Grassley began to write op-eds and trash the individual mandate, which they had earlier championed, as unconstitutional and abominable, it convinced conservative Democrats in the Senate that every honest effort to engage Republicans in the reform effort had been tried and cynically rebuffed. So when the crucial votes came in the Senate, in late December 2009, Harry Reid succeeded in the near-impossible feat of getting all 60 Democrats, from Socialist Bernie Sanders and liberal Barbara Boxer to conservatives Joe Lieberman, Ben Nelson, Mark Pryor, and Blanche Lincoln, to vote for cloture, to end the Republican filibuster, and to pass their version of the bill. All sixty were needed because every single Republican in the Senate voted against cloture and against the bill. Was this simply a matter of principle? The answer to that question was provided at a later point by Mitch McConnell, who made clear that the unified opposition was a ruthlessly pragmatic political tactic. He said, “It was absolutely critical that everybody be together because if the proponents of the bill were able to say it was bipartisan, it tended to convey to the public that this is O.K., they must have figured it out.”

Now the Republican Congress is in a difficult position if they want to govern. They’ve made so much hay out of the evils of Obamacare and the need to replace it, that they probably feel like they have to do it. There isn’t much of a plan to “replace” it because Obamacare was what used to be the Republican plan. (Democrats were more on the single-payer plan that seems to result in better health care results for less money spent in most other western countries.) Obamacare was derived from Romney care, implemented in Massachusetts and that was based on the Chafee / Grassley / Durenberger / Hatch Republican alternative to the Clinton plan of the early 90s.

HB 1132: “Urban” Areas and Mining Regulation

January 9, 2017 by Doug Masson 5 Comments

Indiana General Assembly mining regulation legislation

HB 1132 would reduce local control of mining

Rep. Ellington (800-382-9841) has introduced HB 1132 which would weaken the definition of “urban” and reduce the ability of lawmakers to regulate mining.

IC 36-7-4-1103 prohibits action by an area plan commission (the body more or less in charge of zoning regulations) that prevents “the complete use and alienation of any mineral resources or forests by the owner or alienee of them.” The mining companies can argue (and have argued) that this language is incredibly broad. Regulation of any kind at the local level is seen by them as precluded by this statute.

The exception, embedded in the current statute, is that this prohibition is effective only outside of “urban” areas. So people in “rural” areas are (if the mining company interpretation of the statute is to be believed) powerless to implement zoning regulations to keep noise levels down, prevent contamination of water quality, and generally avoid and mitigate the problems that go along with large scale mining operations.

In the statute “urban” is defined as an area with eight or more residences within a quarter mile square area. Rep. Ellington’s legislation would impose a 600% increase in the urban/rural threshold, increasing the number of residences from eight to fifty. My guess is that this would significantly expand the map of places that would lose the ability to regulate mining activity.