Lawyers vs. legislators

By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.

It could be argued that two of the three most important votes this year in Arkansas state politics occurred Feb. 16 and Feb. 27, and the third will occur this Friday.

The first two votes are when the Arkansas Senate and Arkansas House advanced a proposed constitutional amendment limiting lawsuit awards. We voters will decide its fate in the November 2018 elections.

The third will be in Hot Springs June 16, when the Arkansas Bar Association’s House of Delegates votes on whether to pursue a dueling proposal barring such lawsuit limits that also would appear on the November 2018 ballot.

The one proposed by legislators would limit punitive damages in civil lawsuits to the greater of $500,000 or three times the compensatory damages awarded in the case, except when the harm was caused intentionally. Noneconomic damages, sort of a vague term, would be limited to $500,000. The Legislature would be empowered to increase both of those amounts with a two-thirds vote. Lawyers’ contingency fees would be limited to one-third the judgment.

The amendment is supported by powerful groups, including the Arkansas State Chamber of Commerce and those representing health care providers. They want to reduce the risk of jackpot jury verdicts that produce a climate of uncertainty, raise insurance rates, and require costly cover-your-rear actions ultimately paid by consumers and resulting in lost jobs. If your local hospital no longer delivers babies, it’s because the insurance is too high and the fear of a lawsuit is too great.

Opponents, including the Arkansas Bar Association, which represents attorneys, of course don’t see it that way. They say juries should be trusted, not limited, and that the awards prescribed by the amendment are so low that big, bad actors won’t be deterred from harmful activities. They say the upfront costs of lawsuits can be daunting with no guarantee of a payout, so capping attorneys’ fees will make it harder for Arkansans to find a lawyer willing to represent their case.

This already was going to be a heavyweight brawl between two groups with access to money and reasons to spend it. Aside from the legitimate philosophical differences, we’re talking about rich people’s livelihoods – those of business executives and medical providers who say enough is enough, and those of attorneys whose bottom lines would be significantly shortened. So Arkansas voters next year presumably will see plenty of 30-second ads defining the bad guys (evil corporations or unscrupulous lawyers, depending on who is funding the spot) and the heroes/victims (average Arkansans, either way).

But then the Arkansas Bar Association came up with another idea – pass its own, equally far-reaching amendment. It would do away with all the caps included in the Legislature’s measure while also taking more than a few shots at the legislators themselves – increasing transparency for campaign contributions, prohibiting legislators from directing how state funds are spent locally, reducing their authority over state agency decisions, and increasing the number of votes needed to override a governor’s veto from the current simple majority to two-thirds.

An added twist occurred last week, when the State Chamber’s President and CEO, Randy Zook, sent a letter to its members asking them to encourage their hired law firms to vote against the measure.

On Friday, the ABA’s House of Delegates will vote on whether to pursue the amendment, which its Legislation Committee unanimously endorsed.

The pluses? As a political strategy, the amendment would enable the ABA to play offense rather than just defense. Also, instead of the campaign being mostly lawyers vs. business owners and doctors, it also would be a more winnable lawyers vs. legislators.

But unlike the Legislature’s amendment, getting the proposal on the ballot would require supporters to collect 84,859 signatures, which would cost millions of dollars and inevitably lead to a lawsuit by opponents hoping to block the measure.

Things will get really interesting if they’re both on the ballot. One limits jury awards. The other says jury awards can’t be limited. One or the other could pass. If they both pass, the one with the most votes wins. If neither passes, things stay the same – meaning no lawsuit limits.

That means the Bar Association would have more paths to victory than the Chamber-supported amendment. Not necessarily better, but more.

Math beats myth, this time

By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.

Wednesday saw the triumph of math over myth, in one state.

That would be Kansas, where the Legislature overrode Gov. Sam Brownback’s veto of tax increases made necessary by his previous tax cuts. We’ll see how this applies to Arkansas later in the column.

What happened in Kansas was in 2012, Brownback pushed through the Legislature huge tax cuts that weren’t accompanied by sufficient spending decreases. He said the tax cuts would spur big economic growth. They didn’t.

The state ever since has been a fiscal mess, and a cautionary tale for other governors. This year it faced a $900 million budget deficit along with an order by its state Supreme Court to increase funding for public schools.

Kansas’ previous policies were based on a commonly believed myth – that if you cut taxes, the economy will grow and the tax cuts will pay for themselves. Thus, you don’t really have to cut spending.

The math is quite different, as proven time and again. Tax cuts can spur economic growth, but not enough to make up for the lost revenue. A minus sign doesn’t become a plus sign just because a politician says it’s so. To make the equation work, it’s very simple – just cut spending too. If you don’t have the courage to do that, don’t cut taxes.

The easy decision is to cut taxes without cutting spending. That makes everyone happy until the bills come due, which can take a while. The easy decisions of the Kansas Legislature of 2012 left the Kansas Legislature of 2017 with hard choices – more taxes, less spending, more debt, and/or violating a court order. So after the 2012 Legislature played Santa Claus, today’s legislators had to be Scrooge.

The result was the Legislature passed a $1.2 billion tax increase that Brownback, still determined to be Santa Claus, vetoed. On Wednesday, legislators overrode that veto knowing they’ll have to tell their primary voters that they voted for a tax increase.

It’s ironic this all happened in Kansas, the state that produced President Eisenhower, under whose administration the federal budget was balanced three times in eight years and almost balanced every other year.

If you’re wondering why this is relevant to Arkansas, it’s because your elected officials at the state and national levels will be spending a lot of time talking about taxes and tax cuts.

At the state level, taxes were cut in 2015 and 2017, and now Gov. Asa Hutchinson and other elected officials want to further reduce rates and simplify the tax code to make the state more competitive with its neighbors. A task force is meeting to craft legislation for 2019. For the math to work, the state must eliminate deductions, but each one will have its own constituency that will fight to protect it. On Wednesday, the task force hired a consultant to determine exactly what deductions are littered throughout the code.

Arkansas has a history of being fiscally responsible and has mechanisms in place through the Revenue Stabilization Act to produce a balanced budget. But mechanisms can be overridden or worked around. The Legislature is going to cut taxes. Hopefully, it will offset all of them by closing deductions and with spending cuts, lest Arkansas look like Kansas without the “Ar.”

More concerning is what’s happening at the federal level, where President Trump wants spending increases for the military and the border wall and has proposed spending cuts that largely won’t happen. He wants to leave untouched the government’s biggest programs, Social Security and Medicare.

Meanwhile, he and other Republican leaders have been promising tax cuts that they really, really want. Speaker of the House Paul Ryan was Brownback’s legislative director in the 1990s when Brownback was in Congress.

For a long time, Washington has behaved like Kansas, with much more disastrous results. Taxes have been cut under the theory that they would pay for themselves, spending has been increased, and the national debt has reached $20 trillion, or $62,000 for every American.

Arkansas’ six members of Congress could, as has happened so often, act like the 2012 Kansas Legislature and play Santa Claus, letting a future Congress somewhere down the line be Scrooge.

Let’s hope they instead base their decisions on math, not a myth. Santa Claus isn’t real, but the bills that come due after Christmas are.

Related: $23.33 less debt

The return of recess?

By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.

Can more time in recess and less time in class help students learn better? That’s a question some schools in Arkansas will try to help answer.

Under state law, elementary students must have 40 minutes of physical education each week and 90 minutes of additional physical activity, such as recess. That’s 18 minutes per day.

Act 1062 sets up a pilot program for the 2018-19 school year that basically triples that amount in some schools. In addition to physical education, students in grades K-4 will get 60 minutes of “unstructured and undirected play” each day, while students in grades five and six will have 45 minutes. Two schools in each of the state’s 15 education service cooperatives – groups of school districts that share resources – will participate, along with two more schools not involved in cooperatives. The Arkansas Department of Education will write the rules. The results will be studied and used to enact future policy.

The law was sponsored by two legislators on opposite sides of the political spectrum – Sen. Gary Stubblefield, R-Branch, a conservative farmer, and Sen. Joyce Elliott, D-Little Rock, a former teacher and one of the Senate’s most liberal members.

The background for this is when the federal No Child Left Behind law was passed in 2001, schools were held more accountable for their students’ test scores, and as a result, they began to focus more on core academic subjects. With the stakes raised higher, recess was considered an expendable part of the day and reduced.

In recent years, many have questioned the wisdom of that philosophy, for several reasons, the obvious one being health. One in five school-aged children is now obese – triple the percentage of the 1970s, according to the federal Centers for Disease Control and Prevention. Spending more time sitting and less time playing certainly doesn’t help.

But there are also potential academic and social benefits to recess, which may help explain why students who get more breaks elsewhere, like Finland, outperform American students. According to a 2013 paper by the American Academy of Pediatrics, children benefit when concentrated learning is followed by unstructured play. Research by Anthony Pellegrini and Catherine Bohn found that recess made students more attentive and productive in class whether they were outdoors or indoors. Moreover, students learn important social skills when engaged in unsupervised play away from adults.

It’s unclear how many schools will volunteer to participate. Sixty minutes a day is a lot of time to take kids away from the classroom. Not only will it require a major reconfiguration of the school day – for a one-year program – but it also will require schools to take the risk that the reduced instruction time won’t hurt test scores.

Moreover, much has changed in the past couple of decades. Americans don’t do “unstructured and undirected” very well anymore when it comes to children. We’ve become a more risk-averse, less playful society, so what’s the response if more recess means more kids get injured or bullied or suffer some other bad outcome? What happens if we give the kids time to play and develop their social skills, and all they do is stare at their phones?

The way these things work is that the Legislature passes a law with broad goals, the agency sets the specific rules, and school districts implement them based on their local situations.

So here’s a couple of suggestions. First, the research shows that kids need a lot of short breaks to recharge their minds, not hours sitting in class and then an hour on the playground. In Finland, it’s 45 minutes of learning followed by 15 minutes off. Let’s do something like that. Second, the Department of Education should interpret “unstructured and undirected play” loosely so that teachers still can offer helpful guidance when appropriate – maybe show the kids how to play kickball, and then get out of the way.

The question isn’t going to be whether recess is beneficial for students. That one’s already been answered. The real questions are, how much recess is best, and how best can it be implemented?

Can those questions be answered with a one-year pilot program? Don’t ask me. I’ve been working on this column for hours, and I need a break. Kickball, anyone?

Could Paul Spencer give Arkansas Democrats a shot?

By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.

Arkansas’ 2nd Congressional District just got more interesting, perhaps even almost competitive, and it might point the way for Arkansas Democrats in other parts of the state.

Paul Spencer is forming an exploratory committee to run for that congressional seat as a Democrat. It’s currently occupied by Rep. French Hill, a Republican.

Spencer was a founder of the group Regnat Populus, which tried in 2012 to get an ethics reform measure on the ballot that would limit campaign contributions. The effort failed to collect enough signatures, but legislators did respond by placing on the 2014 ballot a wide-ranging “ethics” amendment passed by voters. It did limit campaign contributions as well as gifts by lobbyists to legislators, but it also snuck in a provision weakening term limits, a measure Spencer later criticized.

Spencer has continued to stay active in politics, his primary focus being campaign finance and ethics reform. He’s also pro-life, which is kind of interesting considering the chairman of the Democratic National Committee, Tom Perez, recently said all Democrats must support abortion rights. In his day job, Spencer is a history and government teacher at Little Rock Catholic High School for Boys.

It’s just an exploratory committee, but Spencer sounds like he’s running. In a statement, he said that “only the needs of special interests are being represented in the 2nd District.” He said recent Republican health care policy “demonstrates reckless disregard for the people of Arkansas.”

Arkansas Democrats have been beaten up pretty badly in recent years. In 2008, the party controlled five of the state’s six congressional offices, all seven statewide constitutional offices, and 102 of the 135 seats in the Legislature. Now Republicans control everything at the state and national levels, although Democrats still control the majority of local offices for now.

In 2016, the Democrats only managed to field one congressional candidate, and not a strong one. That was in the 2nd Congressional District, the one Democrats have the best shot of winning because it includes Little Rock and Pulaski County along with outlying counties that are much more Republican. Hill lost Pulaski County, while Hillary Clinton beat President Trump there by 19 points.

Spencer – who, let’s be clear, would be a long shot – truly believes in what he’s saying and can articulate why he’s running. His candidacy would give the party what it often lacks: a passionate, recognizable candidate who can offer a contrast with the Republican incumbent. Hill, a successful banker, is more of an establishment Bush Republican trying to navigate the party’s waters now that it’s led by President Trump, who is not Hill’s kind of candidate. His policies are conservative, particularly when it comes to business-related issues, but he has a moderate, measured style. So Hill the banker versus Spencer the crusader could be interesting.

One challenge for Spencer would be how to fund his campaign. After dedicating himself to limiting campaign donations, how would he collect enough money to run a credible race? On the other hand, as the 2016 presidential race showed, maybe money and the things it buys – an avalanche of 30-second ads and an army of consultants – isn’t as important as it used to be.

Spencer’s type of candidacy may point the way forward for Democrats in other parts of the state. The party’s traditional message –“We’re Arkansas Democrats, not national Democrats” – isn’t working anymore. Moving forward, the party can’t merely bash Trump and promise more government goodies like more pre-K classes, and it certainly won’t win in Arkansas embracing Hollywood-style cultural liberalism. You can call Spencer a liberal, but his message is bigger than that: It’s that the system is rigged against the little guy and needs to be fixed. For Democrats to make any gains in Arkansas, that’s the message that might work – less about providing more stuff, more about providing a fair shake.

The system’s rigged. Hmm. Come to think of it, that’s the same message that helped Trump take over the Republican Party.

Related: What matters: Voters’ view of the world

For foster parents, mercy triumphs over judgment

Andrew and May Baker were name Foster Family of the Year.

By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.

On May 16, an awards banquet was held where no one really cared who won.

That was the day the Arkansas Foster Family of the Year and 10 regional winners were honored by the state Division of Children and Family Services (DCFS). They were honored for doing what foster families do: giving loving homes to children removed from their biological families, giving those biological families a helping hand during difficult times, and giving the taxpayers a heck of a good deal.

Foster families temporarily take care of many of the 5,200 children whom the state has removed from their homes because of abuse, neglect and other reasons. The arrangements can last from days to years. Sometimes the foster child is ultimately adopted by the foster parents, and sometimes the child is adopted by another family, but in most cases that’s not the goal. The goal is to provide support services to the children’s biological families so they can be reunited.

Here are some of the ones who “only” won regional awards. Ben and Lora Yother from Greenwood, two nurses, have cared for 13 foster children, including medically fragile ones. Steve and Ruth Hale from Conway started fostering in 2012 after they already had eight grandchildren. They’ve fostered 53 children and adopted their first one, seeing her through a teenage pregnancy that produced their ninth grandchild. Charles and Ginger Blue of Nashville have opened their home to 75 foster children in seven years. Terra Cobb of Texarkana, a single mother, has fostered 66 children since 2012. Meanwhile, she’s adopted three children ages 3,4 and 5 and cares for her 80-year-old grandmother in her home. Shantel Moore of Sherwood, another single mother, specializes in fostering teens and teen girls. Tate and Tammy Pfaffenberger of DeWitt have fostered 20 children since 2014. Last year, Tammy continued to care for two foster children – along with her own – despite undergoing radiation treatments for breast cancer. Then, while still undergoing the treatments, she accepted a third foster child.

As someone wrote about her, “Through chemo, losing her hair, staying up all night with babies, going to sporting events, you name it, she never complained.”

That’s some tough competition.

That said, somebody had to “win,” so the Foster Family of the Year was Andrew and Amy Baker of Searcy. He’s a leadership in ministry professor at Harding University, while she’s a speech pathology professor there. They were selected not because of the number of children they’ve fostered (nine long-term over three years) but because of their efforts to reunify the children with their biological parents or other relatives.

The Bakers learned to care about these kids during their own upbringings. When Amy was a child, her parents hosted weekend visits for young people living at the Southern Christian Children’s Home in Morrilton. Andrew’s parents in the state of New York opened their home to what he called “pretty hard core” teenage detainees, some barely avoiding prison and some being loved for the first time in their lives.

Like all foster parents, the Bakers experience grief when the foster children they’ve grown to love leave their home and return to their families. As Andrew explained, “If it doesn’t hurt, you didn’t do it right.”

But reunification is still their goal, as it is the system’s, and so they work with those families throughout the process and stay close to them afterwards. No one wants to be a bad parent, they say, and if circumstances had been reversed, maybe they would have made the same mistakes. If for whatever reason their children were removed from their home, they would want the foster parents to be striving for reunification, too.

“Mercy triumphs over judgment, and I think that’s our role is to be a voice of mercy in a very complicated system,” he said.

Want to try to beat out Terra Cobb or Tammy Pfaffenberger for next year’s title? Contact DCFS at http://www.fosterarkansas.org or 501.682.8770. Another avenue is The CALL in Arkansas (thecallinarkansas.org, 501.907.1048), a ministry focused on recruiting and training foster and adoptive families. Project Zero (theprojectzero.org) helps foster children who are eligible for adoption find permanent homes.

Related: This family’s really super.