October 2007
Oct. 25, 2007
(Distributed to Kansas newspapers Oct. 22, 2007)A political debt
The decision by U.S. Sen. Sam Brownback, R-Kan., to end his quest for the Republican presidential nomination set off not only a firestorm of speculation on what’s next for Brownback, but also what’s next for some other prominent Kansas politicians.
Brownback isn’t done with politics. Count on that. He’s not going to spend the remaining two years of his Senate term just doing whatever it is senators do and then return to his southwest Topeka home to mow the grass and maybe paint his house.
Count on that.
So far, all that is known for sure is that Brownback isn’t going to seek a third Senate term. Or, at least that’s what he’s saying when he is asked directly.
That leaves the governorship (though he’s spent enough time in Iowa in recent months that he just might meet residency requirements for a gubernatorial campaign there) or, well…that’s about it, isn’t it?
And the question becomes what Brownback’s presidential nomination run has done to his stockpile of political capital in Kansas.
Count on it, his 69 percent of the vote victory for a second full Senate term in 2004 is not going to happen again. Practically, Brownback would have to pull a child out of a burning barn (remind you of Lassie?) while TV cameras are rolling to generate a vote total of that size again.
And, he has identified himself so closely with socially conservative issues during his presidential sprint that he’s cost himself votes within the GOP, which would complicate a primary election for the GOP nomination for governor.
Oh, and don’t forget that there are some other Republicans who would like to wake up in Cedar Crest after inaugural parties in early 2011.
One, of course, is 1st District U.S. Rep. Jerry Moran, R-Kan., who has been a reliable chart-topper in voting in his quarter of the state, and who just sort of taps his foot and says he’d like to run for something in 2010—and folks are thinking either governor or for Brownback’s Senate seat.
Another is Secretary of State Ron Thornburgh, who has started a committee to explore his chances for a gubernatorial race.
There’s a little-mentioned political debt that Brownback owes Thornburgh that may or may not rise to the level of a test of character for Brownback. Remember when U.S. Sen. Bob Dole, R-Kan., resigned his Senate seat for a presidential nomination run back in 1996, and was careful to resign after the candidate filing deadline? That was designed, of course, to allow then-Gov. Bill Graves, a Republican, to appoint a successor who would serve out the remaining two years of Dole’s term before standing for election.
Well, Thornburgh as secretary of state decided that notwithstanding Dole’s retirement date, there was going to be an election that fall anyway, and Dole’s successor and Graves’ appointee, Lt. Gov. Sheila Frahm, would not only have to learn the job of being a senator but also gin up a quick statewide campaign.
It was impossible; Brownback took advantage of the Thornburgh decision and campaigned nonstop while Frahm was busy in Washington being a senator. Brownback won, of course, thanks to an election that really didn’t need to be held except for Thornburgh’s insistence.
Is there a debt there? Probably. Does it rise to the level of one that would stymie a Brownback gubernatorial campaign? Who knows? This, after all, is politics.
But it’s something that Republicans will be talking about amongst themselves and something that Democrats will keep reminding their Republican friends about.
What happens next?
Stay tuned…
Oct. 18, 2007
(Distributed to Kansas newspapers Oct. 15, 2007)Biz tax
There may be a subtle--or maybe not subtle at all—change in the way that business interests approach the Kansas Legislature next session in search of tax breaks.
Oh, yes, businesses remains interested in cutting their taxes, and on one hand, it’s nice that they aren’t bashful about it. We know what they want.
But the subtleties for the upcoming session is that this year, there is a growing understanding among big businesses that they are holding maybe $400 million, maybe $450 million, in tax credits that they can’t use. That’s a lot of credit to be holding, and businesses aren’t about to let lawmakers forget it.
How’d Kansas wind up promising businesses money that they can’t get? It was through the High Performance Incentive Program, which is a primary state economic development tool that provides tax credits to businesses which expand and hire new workers. That’s a good thing, of course, to encourage business and the employment that it brings. Helps us all.
But because of technical Department of Revenue rulings, many—say 80 or so—recipients of those credits are finding that they can’t use them, can’t trade them within their corporate divisions, and actually can’t do much with them at all.
So there’s this “overhang” of money that businesses thought they were going to get to use to reduce their state income taxes that really isn’t usable. That’s a powerful argument to bring to the Legislature, all that “trapped” money.
Now, before you break out the handkerchiefs, remember that those businesses that can’t use the tax credits don’t have any, or much, Kansas income tax liability, and that’s not a bad thing, to organize your business so that you don’t have to pay state income taxes. But, somewhere, that money was included in a business plan, and well, it’s just money that businesses have earned by expanding and hiring Kansans to work for them that they aren’t getting much benefit from.
That “overhang” of unused tax credits presents some interesting opportunities for the business community.
The state can’t afford to just write checks to those who can’t use their HPIP credits. It would break the bank. But, businesses can probably figure some ways to discount those credits, get some benefit from the amount that they can’t use.
A key here is that the Legislature tends to see business as just one giant category of tax revenues. For most legislators, a business is a business. Some are big, some are small, but it’s just businesses.
While big businesses are the ones that have earned those unusable tax credits, politically it makes sense for legislators to spread any of that state obligation among as many businesses as possible, even the “mom and pops” where there are two identifiable voters involved: Mom and Pop.
Those tax credits expire after 10 years, creating a political and financial use-it-or-lose it situation.
Business could even make an elaborate show of “discounting” those tax credits, selling the now non-transferable credits at less than face value—possibly winding them into some disaster rebuilding efforts that would use the credits to cut costs of repairing tornado or flood damage.Will legislators allow businesses which hold these expiring credits to get an extension of their use? Discount them by some amount? Extract some of the value of those earned-but-unused credits for other businesses?
This could go a lot of ways, and again, business generally isn’t bashful about wanting the money it believed it was going to receive, or at least save in taxes.
We’ll see what businesses and legislators decide…
Oct. 11, 2007
(Distributed to Kansas newspapers Oct. 8, 2007)
Clever? Or timid?The Kansas Legislature will find out in early December whether it was clever or just timid and a dab cowardly in dealing with picketing at funerals.
The bill passed last session prohibits funeral picketing—and we’re talking the Fred Phelps family with its anti-gay signs that assert that the death of soldiers in war is a result of God’s opposition to the nation’s tolerance of homosexuality.
It’s the anti-gay picketing that causes the real problem here. But what if a picketer didn’t have anti-gay signs? What if a funeral picketer’s sign said something about the deceased? Like, “Joe owes me money,” or “Joe didn’t return the lawn edger he borrowed.” What happens then? It’s not as offensive as the anti-gay picketers, but it’s going to torment a bereaved family at a time when it is not only grieving but emotionally fragile.
The new law’s essential provisions prohibit picketing within 150 feet of a funeral for an hour before or two hours after the ceremony.
But the Legislature wasn’t sure that the law is constitutional or whether it violates 1st Amendment rights to free expression. Funeral picketing is nasty expression, of course, but the freedom-of-speech 1st Amendment to the U.S. Constitution doesn’t parse out what sort of speech is protected and what sort isn’t.
The bill? It passed the Legislature and was sent to the governor, who signed it into law…almost.
The law contains a “judicial trigger” that essentially says even though it was passed by the Legislature and signed into law and legislators got to take credit for dealing with the scourge of funeral picketing, it doesn’t become effective until the Kansas Supreme Court holds it to be constitutional.
Does that sound a little, er, less noble, than we’d like the Legislature to be?
There’s a simple solution to the offensive funeral picketing. It’s to arrest the picketers and charge them with disturbing a funeral. The picketers will sue and lose or they’ll sue and win, in which case they’ll be set free, probably claim punitive damages from whatever law enforcement agency arrested them, and maybe win a settlement.
That’s unless, of course, whoever arrests the picketers just pays them not to picket, maybe puts them on a bus and drives them around town for a couple hours, and hands them money for signing a release of liability when they are let off. Don’t think that’s going to happen, but it’s a possibility.
The real issue is that nobody wants the Phelpses picketing the funerals of Kansans, or anyone else. But there is galvanizing legislative fear that the Phelpses might sue someone, win damages, and have to be written a check. Nobody in state government wants to write that check which would essentially help finance more picketing.
The Supreme Court is going to consider whether the trigger language is constitutional, and if it isn’t, whether it can be severed from the bill…which would leave the Legislature with the law it passed, at whatever cost it might cause through picketers’ lawsuits based on 1st Amendment issues.
If the Supreme Court holds that the “trigger” is unconstitutional, and further that it can be severed from the law, then legislators are left with the law they passed and the governor signed, and, well, we’ll see what happens. Police can enforce the law, and if there is a violation of 1st Amendment rights, someone writes a check to the Phelps. If police don’t enforce the law, it is likely that some bereaved family will sue the police for not enforcing the law and allowing the funeral of a loved one to be wrecked.
Of course, if the court holds that the trigger is constitutional, at some point someone arrests funeral picketers and we find out whether the law itself is constitutional—that’s really the way things are supposed to work.
Best result? Probably for the court to invalidate the entire act. But if it does, we’re not sure that many of us are interested in hearing legislative whining while funeral picketers are going about their ugly business…
Oct. 4, 2007
(Distributed to Kansas newspapers Oct. 1, 2007)
Be careful what you ask forHow many times have you heard a government official say something like “I didn’t want to do it, but the project met the current rules and regulations, so I was stuck and had to approve it”?
It’s that hook that many a government decision has been hanged on, basically that an official is powerless to prevent something because the statutes and the rules and regulations allow it. To prohibit something that is perfectly legal, well that sounds pretty imperial, doesn’t it? Not exactly “rule of law” stuff.
In what is probably an under-recognized but dramatic change in the way the state does business, that “hook” has been removed from the bureaucratic playbook by Attorney General Paul Morrison when it comes to a powerful environmental, economic development—and political—issue.
The issue is permits for construction of two 700-megawatt power plants at Holcomb, in western Kansas—now ever-more firmly in the hands of Kansas Department of Health and Environment Secretary Roderick Bremby.
Bremby—apparently forgetting the axiom about being careful what you wish for—asked whether he could deny a permit based on health or environmental concerns in the absence of federal or state regulations (that “rule of law” stuff) setting limitations for a specific pollutant. Morrison’s reply: Yes you can.
And to further isolate to Bremby a decision worth billions of dollars, Morrison said he doubts Bremby has the authority to just delay a decision on the power plant based on its emissions until someone—state or federal—comes up with regulations on some specific pollutant that these plants might emit.
That opinion said that Bremby presumably could nix or approve the plant—but not just stall for more regulations—based on the plant’s likely emissions of something or other that isn’t even regulated now on the state or federal level. It could range from carbon dioxide to, but probably not, construction workers’ sandwich baggies blowing off-site and suffocating loveable little Kansas-domiciled ground hogs.
Morrison has turned what most believed would be a straight-up, does-it-meet-the-regs decision into something much more focused. Incidentally, it may just have made irrelevant environmentalists’ assertions that carbon gasses which aren’t regulated now someday will be and everything should be delayed until those rules and regs are adopted by someone, or, alternatively, that Bremby shouldn’t have to wait for those rules and regs, and essentially “follow his heart”—and quickly.Oh, and let’s not forget that Gov. Kathleen Sebelius, who hired Bremby, isn’t a fan of the giant coal-burners and likes to talk about it, but figures that she hired Bremby to make the decision.
So, where are we?
We have a Cabinet secretary—Bremby—who asked a leading question, got a response that he might not have wanted and now apparently has, or at least before either environmentalists or power plant builders can type up a lawsuit, sole authority to allow the plant to be built and operated.
That’s a dramatic increase in authority handed Bremby. His decision, whether it’s a go or a no-go, may well spark action next legislative session based not on science but on regional politics, “green” politics, and economic development politics.
It is too early to tell which way this deal is going to go, but Morrison interjected, probably unintentionally, a dramatic new political aspect into the licensure of the power plants that changes the landscape.