A Citizen's Guide to Indiana

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.

SB 56: Eek! Sharia! (Again) (and Again)

January 8, 2017 by Doug Masson 6 Comments

Indiana legislators fight non-existent Sharia menace.

Sen. Raatz (800-382-9467) has introduced SB 56, this year’s iteration of the perennial Sharia bill that at least Senators Kruse and Steele have introduced before him.

If they’re just going to re-introduce the same bills, I guess I’m justified in just regurgitating the same analysis:

I believe Sen. Kruse’s SB 90 is properly understood as part of the non-existent Sharia menace.

Prohibits the enforcement of a foreign law (defined as a law established and used outside the jurisdiction of the United States) if the enforcement would violate a right granted by the Indiana or United States Constitution.

This part strikes me as gratuitous. What court in the U.S. is subordinating constitutional rights to foreign law? The whole scheme of statutory construction is premised on the notion that laws are unenforceable if they violate the constitution. So far as I know, foreign law is recognized as, at most, persuasive authority. That can change if, for example, parties have contracted to have their rights determined under a choice of law in a foreign jurisdiction, in which case the courts can be asked to determine the intent of the parties as to their rights under the contract by interpreting the law of a foreign jurisdiction.

The bill goes on to say that a foreign choice of law provision in a contract is void if it would violate someone’s constitutional rights. I think this is already a principle of contract interpretation, but it mostly does not come up because constitutions typically constitute the bounds of appropriate government behavior and not relations between private parties. So you can, for example, enter into a non-disclosure agreement without violating the First Amendment guarantee of free speech. On the other hand, a contract to enslave yourself is unenforceable.

I don’t know that this bill has any practical application. I think it’s properly understood as another chapter in the Great Sharia Freakout. See also.

HB 1060 – Healthy Food Financing Program

January 6, 2017 by Doug Masson 3 Comments

Rep. Shackleford (800-382-9842) has introduced HB 1060 which would create the “healthy food financing program.” It creates a fund, the purpose of which is to “provide financing for projects that increase the availability of fresh and nutritious food in underserved communities,including financing for retailers to open, renovate, or expand grocery stores.”

The Indiana Housing and Development Authority is charged with overseeing the fund and with setting program criteria that can then be delegated to a non-profit for administration. Projects eligible for financing include construction of grocery stores, grocery store upgrades, and farmers’ markets. (Interestingly the provisions about grocery store upgrades and farmers’ markets have some conditional language about making fresh produce available that isn’t necessarily specified for new grocery store construction.)

The applicant for funding has to be able to demonstrate a likelihood that the project will be financially sustainable. The applicant also has to accept SNAP (food stamps), SSNP (WIC), have 50% space for perishable foods, and promote the hiring of local residents. The bill calls for the appropriation of $10 million over two fiscal years for the program.

This seems to be part of an ongoing legislative effort to address “food deserts.” In 2014, Indianapolis ranked worst in the nation as a food deserts.

HB 1062 – DNA Exoneration Fund

January 6, 2017 by Doug Masson 3 Comments

Bill would provide $25,000 per year for wrongful incarceration

Rep. Steuerwald (1-800-382-9841) has introduced HB 1062 which would create the DNA exoneration fund and provide a mechanism for wrongfully convicted individuals, exonerated through DNA evidence, to receive compensation from the State.

It states that a person whose conviction is vacated (in whole or in part) on the basis of DNA evidence is entitled to compensation in the amount of $25,000 for each year that the person was wrongfully incarcerated in the department of correction. It initially appropriates $200,000 to the fund and directs the attorney general to administer the fund and investigate claims. In return for receiving compensation under this mechanism, the person is required to waive any further claims against the State.

This seems like a generally positive initiative, but I wonder what the rationale behind including DNA-based exonerations but excluding non-DNA exonerations. Maybe related to the relatively more objective nature of DNA versus other potential methods of exoneration?

Reps. Thompson, Bartlett, and Lawson are co-authors.

The fiscal note is pretty interesting. The analyst found nine cases of DNA based exoneration in Indiana. One of them is David Camm who the Indiana Law Blog has been following for a dozen years or so. Convictions on that list range from 1985 through 2002 and exonerations from 1993 – 2013. The longest case of incarceration was David Scott at 23 years from 1985-2008 who would be entitled to $575,000 under this methodology. (The bill would only apply to exonerations that take effect after June 30, 2017).

HB 1013 – Taxes on Vending Machine Food

January 5, 2017 by Doug Masson 7 Comments

Excise taxes on vending machine “food” such as cookies could be phased out

Rep. Ober (800-382-9841) has introduced HB 1013 which would eliminate taxes on food sold from vending machines. In the context of sales taxes, “food” has a particular meaning. A lot of what comes out of vending machines (e.g. soda and candy) is not considered “food” and will continue to be taxable. However, some of what comes out of vending machines (e.g. chips, cookies, and crackers) is “food.”

As I understand the current tax law, if you bought the chips from the grocery store, it would not be taxed, but if you bought the same chips from the vending machine, it would be taxed. I can only speculate, but my guess would be that advances in vending machine technology since this tax structure was developed have improved the ability of vendors to separate “food” from “non-food” for tax purposes. It’s probably fair to ask why candy should be taxed while cookies are not; but, I think it makes sense that whether the cookies are taxed probably shouldn’t hinge on whether they came from a vending machine or a grocery store.

The tax would be phased out from the current 7% down to 5% in 2017/18, 3% in 2018/19 and zero thereafter. The fiscal note indicates that this would reduce sales tax revenue by $5.8 million per year once the tax was eliminated.

[Shameless Plug]: Not as Trump as You Drink I Am

January 5, 2017 by Doug Masson 6 Comments

I am going to engage in a bit of shameless promotion for a moment. My family and friends have been involved in the Drunk Publius effort resulting in the creation of “Cocktails for Survival: not as trump as you drink i am.” It is a cocktail book that received some attention from the newspaper a few weeks ago, and is now available for purchase. If you love Trump, take a dim view of alcohol, and on the whole would prefer not to laugh, then this book is not for you. Otherwise, you might like it. It includes drinks like “The Wall,” “The Bad Hombre,” “Trumple Thinskin,” “The 400 Pound Hacker,” and many more. Maybe it would make a good gift to lift the spirits of a friend? Make a good centerpiece or an inauguration party (inauguration parties are a thing, right?) In any case, the idea is to get together with friends, have a few drinks, have a few laughs, and generally soften the blow of what looks to shaping up as a bumpy next few years. Putting the “Gallo” in “gallows humor,” so to speak.

Just as a taste, here is a bit from the Societal Collapse:

I heard, as it were, the sound of thunder. One of the four beasts saying, “come and see.” And I saw . . . the recipe for this drink. The original ingredients were pestilence, war, famine, and death, but we’ve made a few substitutions. Slouch your way toward Bethlehem with this refreshing drink. Pale horse optional.

So, if it sounds interesting, drop by Amazon or TrumpedUpBooks.com to buy a hard copy or an e-book. And if you can pass it along to like minded friends, you’d really be doing us a solid.

Repeal and Replace: The Disconnect Between Voters and Lawmakers

January 5, 2017 by Doug Masson 10 Comments

This column by Drew Altman, president of the Henry J. Kaiser Family Foundation, highlights what appears to be a big disconnect between voters and lawmakers when it comes to repealing and replacing Obamacare. Trump voters and Republican lawmakers are united, it seems, in their dislike of the Affordable Care Act. Where they are divided is on what comes next. Research done by the Henry J. Kaiser Foundation indicates that the voters have pretty definite ideas on what they want to see as a replacement. Repeal does not seem as important to them except as necessary to fix the problems they are having.

Lawmakers, on the other hand, seem pretty eager to repeal Obamacare but are vague – and have been vague for seven years of opposing the ACA – on what comes next. Trump voters (and probably most voters) are going to be unhappy if lawmakers proceed on the path they appear to be on.

The study indicated that the primary concerns of these Trump voters were:

A fear that they would be unable to afford coverage for themselves and their families.
Anxiety about rising premiums, deductibles, copays and drug costs, and particularly surprise bills for services that turned out not to be covered.
Resentment that poorer people, eligible for Medicaid, seemed to be getting a better deal than they were.
Animosity toward drug and insurance companies.
Frustration at being forced to change plans annually to keep premiums down, and losing their doctors in the process. (Surveys show that enrollees in the ACA marketplace generally are happy with their plans, but the average Trump voter seems to not have fared as well under Obamacare as the average citizen.)
Dissatisfaction over losing an ability to purchase lower cost policies, even if that loss was cost-shifting that resulted in more and better coverage for others.

According to the column and the study:

If these Trump voters could write a health plan, it would, many said, focus on keeping their out-of-pocket costs low, control drug prices and improve access to cheaper drugs. It would also address consumer issues many had complained about loudly, including eliminating surprise medical bills for out-of-network care, assuring the adequacy of provider networks and making their insurance much more understandable.

The survey subjects were surprised and dismayed to hear about the current plans that had been floated. They recognized that “a tax credit to help defray the cost of premiums, a tax-preferred savings account and a large deductible typical of catastrophic coverage” was “not insurance at all.” They were skeptical of the concept of health savings accounts.

But, they were confident in Mr. Trump’s ability to protect people with pre-existing conditions without imposing the un-American mandates. Because, in their mind, Mr. Trump is a smart businessman, he would not allow the chaos of a gap between the repeal and replacement of Obamacare.

Well, the election is over. They won this one. But, as the George Washington character says in Hamilton, “winning is easy, young man. Governing’s harder.”

SJR 2: Redistricting Commission Constitutional Amendment

January 3, 2017 by Doug Masson 10 Comments

Sen. Delph (800-382-9467) has introduced Senate Joint Resolution 2 which would amend the Indiana Constitution to provide for redistricting by a redistricting commission. The current constitutional provision provides that the General Assembly elected in the year of a federal decennial census shall fix by law the number of Senators and Representatives and apportion them among districts, as revealed by the federal decennial census.

As amended, the Constitution would allow any General Assembly to change the number of Representatives and Senators (not just the General Assembly elected during a census year). (Another provision caps the numbers at 100 and 50 respectively, so if the numbers were altered, they could only be reduced.)

The amendment would also charge a commission established by the General Assembly with drawing the congressional and legislative districts (current law doesn’t specify congressional versus legislative districts) according to the number of inhabitants in each district “and other criteria established by law.”

I think I’m generally supportive of this notion, but I’m not entirely sure it’s necessary. It seems like, under the current Constitutional language, the General Assembly could require a commission to recommend districts, and then pass those as recommended. Obviously one problem is that it lacks the political will to adopt districts in a politically neutral way (or at least there is a perception that this is the case.) But I don’t know that the problem goes away with this amendment. You still have a legislatively created commission that isn’t necessarily independent creating districts according to instructions given to it by the General Assembly.

You can disregard a lot of the prior paragraph because it seems that Sen. Delph has anticipated this earlier argument (which I’ll just leave as-written instead of restructuring my blog post) because he’s introduced SB 136 which has alternate provisions that both go with the commission’s recommendations with somewhat different procedures depending on whether the Constitution requires the General Assembly to vote for districts directly.

Under SB 136, the commission would be composed of nine members. The Speaker of the House, Senate President pro tem, House minority leader, and Senate minority leader would all appoint two members. Those members are directed to appoint a ninth member to be the chair and, if they can’t agree, the Chief Justice of the Supreme Court will make the appointment. The ninth member must be a retired judge. There are provisions designed to exclude politicians and lobbyists (at least on the state or federal level) as members of the commission.

The bill recommends equal populations in each district as ideal but permits deviation of a few percentage points to accommodate compactness of districts and respect for boundary lines of political subdivisions.

I have little to no experience in districting issues, but I’m not finding much to fault with this bill.