Monday, June 2, 2008

With friends like these…The Daily Herald sets a new—low—standard with June 1st editorial on the omnibus lawsuit

I generally like the Herald’s editorial page. They usually are well-reasoned and don’t usually seem to have an ax to grind, tweaking both conservatives and liberals at times. The exception is education. On that score, Jim Tynen, the editorial page editor, has some serious rightwing opinions, logic or evidence be hanged. Tynen explained that he was the driving force behind their old-fashioned, weeks-long series of pro-voucher editorials before the referendum last year which employed every possible justification for vouchers. It was like the early 19th century when a paper was explicitly “Whig” or “Democrat” and served as a propaganda organ rather than aspire to any pretense of objective reporting.

But Tynen and the Herald may have just raised…err, lowered the bar. Their latest masterpiece addressing the lawsuit against SB2, the education omnibus bill, literally made my jaw drop open in shock as I read it. That’s really what they’re going to argue? That is the Sunday edition editorial from this semi-major paper? Really?! All of that to say “Well you’re right. The omnibus was trashy and and unethical…but at least it wasn’t as bad as the US Congress.”

The editorial seriously has two points. It agrees with Sen. Stephenson that the suit is “political grandstanding” rather than a substantive violation of the state constitution, then admits that omnibus bills are generally bad policy, but concludes that SB2 should not be opposed because it wasn’t as bad as the national farm bill. And the real thing comes off even sillier than my little summary here. This is what happens when you are determined to write in defense of a bad decision, regardless of the evidence. Ouch.

And to make things worse, the Senate Site just proudly cross-posted this rhetorical question posing as an argument in favor of the omnibus bill. This is the justification they are going to make too? We’re “distasteful,” “not a model of clarity,” not any worse than Congress, “horse traders” and “political maneuverers,” and finally “not particularly appetizing, but not illegal.” Unreal.

I’m going to quote liberally from it, but here is another link to the whole editorial:

The text of the editorial is in italics. I will add my comments in parentheses.

Look to see if you can find any other arguments besides these two: the lawsuit should be disregarded because it is political rather than a true violation of law and this omnibus is not as bad as some others.

More than three dozen politicians and educators have joined a lawsuit against SB 2, a wide-ranging education funding bill. The plaintiffs say it violates Utah's Constitution. Article VI, Section 22 says (in part): "Except general appropriation bills and bills for the codification and general revision of laws, no bill shall be passed containing more than one subject, which shall be clearly expressed in its title."

It's true that legislative bodies can go too far with "catch-all" bills. The U.S. Congress is one of the worst offenders -- note the recent omnibus farm bill, which granted huge subsidies to millionaire farmers and also gave handouts to race horse owners. We'd say that's distasteful, but not unconstitutional.

(This is where my jaw started to crack open. The suit addresses the Utah State Constitution which has the language, “no bill shall be passed containing more than one subject,” and not the US Constitution. So their argument is since this dishonest, wasteful, “distasteful” tactic is not illegal for the national congress, that we should ignore that it is illegal under the Utah State Constitution?)

At the beginning of the session, almost all observers agreed that Utahns were demanding action on education. That's Job No. 1 for any legislative body: respond to the wishes of the voters. So it's hard to criticize lawmakers for trying to address education.

(Huh?! I don’t find it hard to criticize using “the voters wanted action” as a justification for lying or breaking the law. And the legislative leadership started surreptitiously tabling all-but-passed bills as early as Feb. 14 once they saw that some of their pet bills were being defeated. They in effect prevented education from being addressed in a timely manner by holding hostage bills that could have passed weeks earlier.)

Well, then, is SB 2's title, "Minimum School Program Budget Amendments," clear according to the state constitution? We'd say it's not exactly a model of clarity, but neither is it obfuscatory. Omnibus bills always have title troubles.

(Would that sentence meet the same standard of non-obfuscation? Omnibus bills always have title troubles? I mean, just a guess here, but I would wager that is because they are about more than one subject that cannot be clearly expressed in a single title. I think the unclear title violation is a black-and-white case. If they had named the bill, “Nine fairly or very well-supported bills we hijacked to pass two unpopular rightwing bills and another popular one Senator Dayton stopped in committee after unanimous House passage because of a UN conspiracy theory, but is now trying to save face after catching national flak because of her uninformed comments, then you might have a fairly clear title. But a clear title would then inherently violate the ‘not more than one subject’ requirement of the state constitution. Darn that transparency clause! Also, notice they never argue that omnibus bills are helpful or necessary as Valentine and Stephenson have. It is taken for granted that they are unethical, but it’s OK because that’s normal for legislative bodies.)

Is the bill about "one subject"? Defenders say yes -- education. The bill ranges from a major appropriation ($2.5 billion for the Uniform School Fund) to a host of lesser matters, including the powers of the State Charter School Board, various education programs, school transportation funding and more.

But all of them deal with education.

(By this argument, mandatory sentences for gun crimes, raises for high-performing judges, funds to laptops for state lawyers featuring a non-compete contract for expensive software from a group Cap Ferry lobbies for, a clarification of the division of funds between state and municipal courts, and a resolution to name the courthouse for Ronald Reagan could all be included in an omnibus entitled “Court Related Budget Amendments.” Could the legislators just step back and look at this from uninvested eyes and see how ridiculous their argument looks?)

Let's look more closely at the bill. Does it hide items in a huge package that no human being can reasonably read? No. The bill is not enormous. It runs a mere 40 pages printed out, which isn't haiku but isn't too bad as laws go.

(See the formula—it isn’t __________ [good example], but it’s not __________ [bad characteristic or example]. Unconvincing in general, but then using haiku to try and tell us a 40 page bill isn’t tough to read and understand is getting weird, especially when they omit that it was an empty bill until the last two days of the session and that the Senate only debated 5 of the 12 component bills in their rushed debate while the House managed one amendment on the last day of the session.)

Numerous news accounts about the bill have been published since it was cobbled together. Those reports seem fairly clear and complete; so Utahns had some notice about what was in it.
The bill was passed in the last few days of the Legislature, but last-minute bills are normal for all kinds of legislative bodies.
So, all in all, we don't see what all the fuss is about.

(Immerse yourself in the logic. Newspaper articles about the omnibus bill in the weeks and months since the session ended were fairly clear and complete (and we'll accept that at face value for the sake of argument), therefore two days was enough for Utahns and legislators alike to read, understand, and fully discuss the bill. It’s just common sense people! And notice once more the refrain: everyone is doing it (omnibussing) so why can’t we?)

It's a mundane political fact that when a wide range of measures are packaged together, a give-and-take process to secure votes follows. And it is easier to pass almost any measure in an omnibus bill than as a stand alone. No surprise here.

The plaintiffs are right about this, but they'll have to recast our entire political system to change it. Horse trading is a normal part of politics.

To this we can only say that sometimes -- not always, but sometimes -- political maneuvers do lead to good policy.

(Everyone does it and sometimes it’s good!)

It's been said that this lawsuit is more political than legal, a charge disingenuously denied by the attorney for the plaintiffs. If you were to view a few dozen plumbers unclogging drains or installing hot water tanks, you'd have no hesitation in saying they were engaged in plumbing. Here, seeing a few dozen people trying to reverse an action of the legislature, we have no hesitation in saying they are engaged in politics.

Do they propose an alternative? Do they say the Legislature should have passed a separate law for each section of SB 2, so that each is about "one subject"? We figure the bill could be easily divided up into 170 clauses, which is a lot of laws. Surely the plaintiffs don't mean that.

Then what do they mean? How do they define "one subject?" So far, we haven't heard.

It's been said that one should never watch two things being made: sausage and laws. SB 2, like the federal farm bill, might not be particularly appetizing, but that doesn't make it illegal.

(So by the plumbing comparison, understand that it impossible to justly oppose anything the legislature does, even if it appears to you mortals that they blatantly violated the state constitution. They can’t be wrong; you’re just “grandstanding.”

And the 170 laws argument is just stupid. C’mon Tynen. (And Bramble--in which he argues that you will now have to review every bill passed, challenged or not, and especially—veiled threat—those that benefit the education community. Translation: Don’t cross us or we’ll take your funding away. Just ignore the constitution. Nothing to see here folks. Just keep moving.) No one has claimed the 12 (One source says 13) original bills violated the constitution on their own. Over half of those would have easily passed weeks before the end of the session if they hadn’t been yanked to hitch failed laptop and charter school funding to them.

And do they really want to make repeated comparisons between SB2 and the federal farm omnibus bill? It seems like that weakens their case considerably. Again, the case will be judged on what the Utah Constitution allows, not just the national one.)

There you have it folks. I’m not sure if uninvolved people are actually paying attention to the nuances of the bill, but please remember who is for this bill and who is against. The same people blatantly spinning this unconstitutional bill as legal are the same ones who snuck some extra wording into the amendment of the voucher funding last year, and then righteously and indignantly thumped their chests about following the law when the State School Board correctly delayed implementation by a few weeks until the Utah Supreme Court squashed the dirty attempt at circumventing the process. Seems like a pattern is developing. Will the same scenario have to be played out again?

1 comment:

Anonymous said...

Trust me, Tynen's not the driving force here. It's the paper's executive editor, Randy Wright, who would love nothing more than to see public education destroyed. Go back in the archives and read the letter from Richard Davis about why he and other board members resigned because of Wright's anti-education stance.