Electing judges: Is it the people’s will, or politics?

golden balanceBy Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

Should judges in Arkansas be democratically elected after collecting campaign donations from the same lawyers and corporate interests that bring cases before them? Or should an appointment process be created, reducing the influence of money but also the role of the voters?

Because we already use deeply flawed process number one, we probably will not open up the can of worms that would accompany flawed-in-other-ways process number two.

The past few years have demonstrated some of the challenges with electing judges. In one case, a circuit judge reduced a jury’s verdict in a nursing home case from $5 million to $1 million after receiving campaign money from the nursing home’s owner. That judge pled guilty to bribery, was sentenced to 10 years and has since appealed. Meanwhile, the past few Supreme Court races have sunk beneath the dignity of the office because of ad campaigns run by anonymously funded, independent political action committees, otherwise known as “dark money.” One losing candidate, Tim Cullen, was dragged through the mud because he had once been appointed by a judge to represent a convicted sex offender – a distasteful assignment to be sure, but in America, unlike in some other places, we try to guarantee the right to a fair trial.

In addition to the corrupting influence of money, the other problem with electing judges is that voters have limited information. Candidates aren’t supposed to tell us how they’ll vote on cases because they should remain neutral until they hear the facts in court. Also, judicial elections are nonpartisan, so voters can’t use party labels as a guide. Ironically, the other problem with judicial campaign donations is that candidates don’t collect enough to purchase a big ad campaign that would really introduce themselves. The whole process results in many voters picking a name on a list.

But for all their messiness, elections are the way we do things in America. It’s how we imperfectly keep small groups of individuals from amassing power and acting contrary to the people’s will from behind closed doors.

The difficulty of coming up with a better system was demonstrated Friday during a meeting of the Arkansas Bar Association’s House of Delegates, the attorney group’s policymaking body. A task force had submitted a plan for electing Supreme Court justices where an appointed commission would offer three names to the governor, who would then choose one. According to the proposal, 22 states use that kind of process. If it passed, the Bar would find a legislator sponsor who would try to get it referred to the voters in 2018 as a proposed constitutional amendment.

The vote was 34-20 in favor, which was short of the required three-fourths majority, so it died. During the debate, a couple of the delegates said their lawyer constituents overwhelmingly oppose ending elections. Another delegate relayed a message from the five returning Arkansas Supreme Court justices and the two recently elected ones revealing that they unanimously support keeping elections. By voting for the proposal, the attorneys would be at odds with the justices before whom they may someday appear.

There are lots of ways to select judges. In some states, including Missouri, a commission presents nominees, the governor appoints one, and then, after a probationary period, the judge stands before voters in an up-or-down retention election with no other candidates on the ballot. But in the spirit of this glass-half-empty column, retention elections have the same issues as the current system – money and politics.

Even without the Bar’s support, some legislator next year probably will propose a constitutional amendment for appointing rather than electing judges. Gov. Asa Hutchinson favors some kind of change. However, there’s not widespread support in the Legislature – not enough to make it one of two or three issues referred to the voters. As another solution, Democrats have introduced a bill that would require dark money groups to disclose their donors. However, there aren’t many Democrats left in the Legislature, and besides, an argument can be made that people have a right to donate anonymously to groups that align with their beliefs.

So in 2018, we’ll probably be electing judges and justices pretty much like we have in the past. It’s not perfect, but, as is often the case, we’ll choose the problems of the current system over different problems that would come with a new one.

Here are my Arkansans of the year. Who are yours?

By Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

Recently, Time magazine announced its “Person of the Year,” based on who its editors believe had the most impact, for good or bad, in 2016. It’s choice was President-elect Donald Trump.

Based on that criteria, who would be the Arkansans of the Year?

The list would have to include David Couch, the attorney who – basically by himself with the financial support of two donors – legalized marijuana for medicinal use in Arkansas. Couch proposed the amendment and qualified it for the ballot in a way that it survived a Supreme Court challenge when all the other voter-initiated proposals were declared invalid. He helped engineer the removal of a rival medical marijuana proposal. Then he ran just enough of a campaign to pass the measure with 53 percent of the vote.

As a result, Arkansans will have greater access to a natural remedy that clearly helps some patients. Sick people will have an option other than manufactured chemicals produced by industrialized, bottom-line-focused pharmaceutical companies. For some, marijuana will replace opiates, which, though legal, potentially are far more addictive and dangerous, even deadly. At least for now, no longer will otherwise law-abiding citizens be forced to sneak around state and local authorities to help themselves or their loved ones.

At the same time, the drug inevitably will find its way into the hands of people who are not sick, including curious young people using it for experimentation, not medicine. The state has taken a step in the direction of full legalization – the potential destination being Denver, where marijuana stores are more common than McDonald’s restaurants. The medical profession must now incorporate a treatment process it doesn’t fully understand. Employers must now negotiate a regulatory minefield using maps that keep changing.

In the upcoming legislative session, medical marijuana will command the attention of legislators who, in many cases, voted against it. Policymakers must now create a system legalizing a substance in Arkansas that’s still illegal in America, while keeping an eye on an incoming U.S. attorney general who has indicated strong opposition to the drug.

How’s that for impact?

Right up there with Couch is Cindy Gillespie, the state’s new director of the Department of Human Services. While so many others argue about past and future health care systems, she is in charge of administering much of the one we’ve got.

What has her job been like this year? In March, she took over an $8.4 billion agency that was a mess, and began cleaning it up. As of May, there was a backlog of 146,000 Medicaid applications, some dating back to 2013. Now there are less than 9,000, and probably none by the end of December. Her agency is in charge of the controversial private option, soon to be Arkansas Works, where the state buys private health insurance for more than 300,000 Arkansans – more than a tenth of us. Medicaid pays for nursing home patients and children’s health care. It also is responsible for finding temporary and at times permanent homes for the state’s foster children – yet another systemic crisis she is tasked with taming.

Two others would qualify for my list. Sen. Tom Cotton increased his national profile through his forceful denunciation of the Obama administration’s Iran deal and further positioned himself as a future presidential contender. If Hillary Clinton had won, he’d be running for president in 2020. (Bonus points for him for becoming a father for the second time this month.) Christie Erwin’s Project Zero organization this year connected 113 children with their adoptive families. What a huge impact she had on all of them.

Finally, it must be said that “impact” is impossible to measure. Seemingly earth-shattering people and events are soon forgotten. What happens in obscurity can set in motion world-changing chains of events. We must place little stock in journalists, or anyone, trying to explain The Meaning of It All. After all, a baby born in Bethlehem at most would have merited a few lines in the birth announcements at the time.

David Couch, Cindy Gillespie, Tom Cotton, and Christie Erwin – those are my Arkansans of the year. Who would be yours?

Drinking from a fire hose to set pot rules

By Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

When you go to school to be a doctor or a pharmacist or a lawyer, you have to learn how to drink from a fire hose – do a lot of work and absorb a lot of information quickly while bearing important responsibilities.

Good thing that pretty much describes the Arkansas Medical Marijuana Commission, the appointees who will have a little more than a month to create rules for the growers and dispensers authorized by the Medical Marijuana Amendment, which voters passed in November.

The five members of the commission – which includes two doctors, a pharmacist and a lawyer – held their first get-to-know-each-other meeting Dec. 12. About all they otherwise accomplished was electing a chairperson, Dr. Ronda Henry-Tillman, a surgical oncologist, and agreeing to meet again on Dec. 20.

They agreed on that date remarkably fast, which is a good sign because the amendment legalizing medical marijuana doesn’t allow much time for fruitless debate. Rules must be in place 120 days from the Nov. 8 election, which would be March 9. But because a public comment and legislative review are required, the rules must actually be drafted by late January – in other words, a little more than a month from the commission’s next meeting.

Meanwhile, the Department of Health and the Department of Finance and Administration are drinking from their own fire hoses while crafting their own rules and regulations. And when legislators go into session early next year, they’ll be reviewing those rules and passing their own laws to alter the amendment, which they can do with a two-thirds vote. One pre-filed bill by Rep. Doug House, R-North Little Rock, would add 60 days to the timeline. But the Legislature doesn’t go into session until mid-January, and the commission and the affected agencies can’t assume House’s bill will pass.

There’s never been an issue like this in state history. As Gov. Asa Hutchinson’s spokesperson, J.R. Davis, often says, Arkansas is in the process of creating a miniature Food and Drug Administration. And let’s not forget that while marijuana is legal at least medically in 29 states and the District of Columbia, it’s still illegal in the United States of America. The only reason states are passing these laws is the Obama administration made it clear it would look the other way, but President Obama is leaving office next month. President-elect Donald Trump has said he favors medical marijuana, but his pick for attorney general, Sen. Jeff Sessions of Alabama, is a staunch opponent.

So that means that Hutchinson, at one time the head of the federal Drug Enforcement Administration, is leading a state government trying to quickly legalize a drug that’s still completely illegal under federal laws – laws that soon may be enforced again. He’s also trying to administer a program he campaigned and voted against. At least two of the Medical Marijuana Commission members also are known to have voted no.

Eighty-four of the state’s then-135 legislators publicly expressed their opposition prior to the election, though some of them won’t be returning to office. That’s almost two-thirds, and with a two-thirds vote the Legislature can change the amendment so much as to make it virtually meaningless – for example, by tacking on such high fees that few could afford the drug. But that probably won’t happen because there’s another number that will be hard to ignore: 68,505, which is how many more Arkansans voted for the Medical Marijuana Amendment than voted against it.

One other thing that’s kind of interesting about Arkansas’ passage of the amendment: If you look at the map, the states that have legalized marijuana for medical or recreational purposes mostly are on the coasts and along the country’s northern and southern borders. Arkansas is the first Bible Belt state to say yes unless you count Louisiana and Florida, which probably would be a stretch in both cases.

If a conservative state like Arkansas will vote to legalize medical marijuana, then perhaps any state will next. Well, perhaps any state except Utah, home to a large Mormon population, and maybe Alabama, home of Sen. Sessions. He’s soon to be attorney general of the United States, the nation’s top law enforcement official. Did I mention he’s really opposed to marijuana?

Steve Brawner is an independent journalist in Arkansas. Email him at brawnersteve@mac.com. Follow him on Twitter at @stevebrawner.

Please, Congress, if you cut taxes, cut spending too

Uncle Sam hangs on for webBy Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

Here’s a simple request of our elected officials when they gather in Washington next year with Republicans in charge of everything: If you’re going to cut taxes, please cut spending, too.

I make that request for the future because I am not reassured by the past – not the past year, or the last 35, or the last 200.

Since 1790, the United States has been in a continual state of debt. There was a brief period in the mid-1830s when the debt was very small – it even briefly was paid off in 1835. But it reached $1 billion in 1863 during the Civil War and has never looked back. It has grown smaller at times as a percentage of gross domestic product, but the overall trajectory has been ever higher. In fact, the last time the United States owed less one year than the previous one was 1957, according to the government’s own Treasury Department website.

It took almost 200 years for the national debt to reach $1 trillion – in other words, 1,000 billions. It crossed that point somewhere around late 1981. By 1990, it was $3.2 trillion; by 2000, it was $5.7 trillion; by 2009, $11.9 trillion; and today, it’s $19.9 trillion. That’s more than $61,000 for every American.

So that’s almost 200 years to reach $1 trillion and then 35 years to reach $20 trillion. This is beginning to look like a death spiral.

That’s a discouraging couple of centuries. Then came this year. President-elect Donald Trump campaigned on large tax cuts while barely mentioning spending cuts. He said he wants to spend more on the military, spend $1 trillion on infrastructure, build a wall along the Mexican border, and leave the growing Social Security and Medicare programs alone.

When he comes into office next year, he will be working with a Republican Congress that will want to act quickly to enact some of its long-suppressed priorities while it controls both the executive and legislative branches. They will want to do big things fast while they still can. In 2001, when Republicans controlled both the White House and Congress, they passed a tax cut and then went on an extended spending spree along with their Democratic counterparts. In 2009, Democrats controlled both the White House and Congress, so they quickly passed their big thing, the Affordable Care Act, also known as Obamacare.

If Republicans want to cut taxes, that’s fine, but that big thing also must be accompanied by another big thing, which is cutting spending by at least an equal amount.

History suggests they won’t do that – that they will focus on the tax cuts and spend more on defense without really cutting spending elsewhere, because Americans like tax cuts and more spending, and elected officials’ jobs depend on being liked.

If tax cuts come first without spending cuts, elected officials will justify it by arguing that the tax cuts will spur so much economic growth that they will pay for the same old spending. And it’s true that tax cuts do spur growth, as does deficit spending. When you have more money, your standard of living improves. It makes no difference, for a time, if that money is borrowed from someone else. But someone eventually has to pay the bill.

So I have this simple request of Arkansas’ congressional delegation: Don’t let history repeat itself. Please, Sens. John Boozman and Tom Cotton, and Reps. Rick Crawford, French Hill, Steve Womack and Bruce Westerman – don’t make the assumption that tax cuts will spur so much growth that corresponding spending cuts can be put off for another time. Have the political will to do both at the same time, and if you don’t possess that will, at least do neither. If your tax cuts more than pay for themselves, then apply the new revenues to paying down the debt, which has not been done since the Eisenhower administration. And if they don’t, then you will have cut taxes and cut spending, which is what you’ve said you wanted to accomplish all along, without adding to the debt.

I make this request on behalf of myself, but also because I have two daughters and eventually expect to have grandchildren too. I’d like to give them an inheritance, not hand them a bill.

He has an iPod. He wants a family.

Anthony arrives at his birthday party with Project Zero's Christie Erwin. Behind them is Angela Newcomb with the Division of Children and Family Services.

Anthony arrives at his birthday party with Project Zero’s Christie Erwin. Behind them is Angela Newcomb with the Division of Children and Family Services.

By Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

“Oh, my word,” Anthony said, his eyes lighting up as he saw that one of his gifts was an iPod Touch – one of many presents he received that day at his birthday party at a Little Rock restaurant.

What he really wants is a family.

The 15-year-old is one of more than 375 Arkansas children waiting to be adopted through the state’s Division of Children and Family Services (DCFS). He’s been in foster care since he was nine as a result of abuse and neglect, and he now lives in a group home.

DCFS employees try to find a home for every kid, but Anthony is special. Angela Newcomb, the area director over the county that works with him, has been working with the agency 17 years, but she’s no hardened state employee. Watching Anthony at the birthday party, and hearing him talk about his desire for a family, brought tears to her eyes.

“Anthony, he touches my heart because I know there’s got to be someone, someone that’s willing to take him in and love him like he needs to be loved and meet his needs,” she said. She can be reached at angela.newcomb@dhs.arkansas.gov

Anthony is loving and affectionate, but 15-year-olds are much harder to place than cuddly babies, and he was born premature and has some challenges to overcome. If no parent is found, he’ll age out of the system. There will be services available for him, but he will not have a family to offer love and support, which is why young people who age out often have a tough time in life.

Continue reading →