Failure of the American Voter

Posted on 2011-07-01 by David

I’ve been thinking about the massive disconnect between the abysmal ratings that Congress enjoys (8% approval I recently read) and the virtual invincibility of Congressional incumbents (incumbents consistently win 90% of the elections where they seek reelection).

I realized that the apparent disconnect was not as stark as it first appeared (11 out of 12 disapproving of Congress while 9 of 10 chose to reelect their Congressional representatives). The reality is that eleven out of twelve people people disapprove of Congress but only five out of twelve vote for someone new when given their current member of Congress as an option.

The fact that six out of twelve voters disapprove of Congress and yet they consistently vote the same people back to represent them over and over again is evidence of a colossal failure on the part of the voters of this nation. They fail to recognize that Congress is working exactly as designed given the input they provide at the polls in November of each even year.

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GRAMA Answers – A First Pass

Posted on 2011-03-24 by David

I really appreciated the 36 questions that came out of the first meeting of the GRAMA working group and wanted to offer one perspective on a first pass at answering those questions. I will say upfront that the answers provided here are subject to modification or revision based upon more detailed information. Consider this the legislative intent or deliberative process version of any final answers. Before answering the questions I wanted to make one related comment.

When I saw that Common Cause was running a full page ad in the Salt Lake Tribune today calling for the repeal of HB 477 I worried that they were positioning themselves to take some credit after it gets repealed tomorrow (and it will). As citizens we need to be careful in our consumption of information. We need to make sure that we are not fooled by the claims of any interest group. Common Cause appears to be using this situation to help them jump start the reopening of their Utah chapter. I don’t know whether that will be a good thing in the long run or not – I don’t know much about the group – but we should not confuse their core advocacy for open government with any significant work to get this repealed. It was the uproar by the citizens of Utah that brought about this legislative reversal, not the political astuteness of some interest group.

Now, on to the questions:

  1. Is there any reasonable expectation of privacy for an elected official? If yes, what should be private? What should be public? Not unless the person was elected against their will. They chose to be a public figure and should expect that their actions are under public scrutiny because they have the opportunity to make public policy.
  2. Does it make a difference if an elected official uses a publicly funded or a privately funded device? Not at all.
  3. When are the personal notes of a government official public records? Anytime they have any connection to their office or to anything voters might consider relevant in deciding whether to continue supporting them as an officeholder.
  4. What personal records of an elected official should be protected, and what should be public? Should a government official be required to release personal notes created solely for his or her own use? If so, what constitutes a personal note? Does the form matter (handwritten, diaries, appointment books, computer files)? Does it matter if those notes are or are not related to policy or government duties? This gets to the heart of this issue. I’m not sure there is a clearcut or lasting answer to this question. Some things are clear though, any record created for their personal use and not shared with others or related to policy or government duties ought to be considered private. The form of those notes only matters insofar as the form may be used to help define of the note was considered to have been shared.
  5. Is there a difference between a digital conversation and a digital record? How should channels of communication like text messages, IMs, Email, video chat, Twitter DMs, Facebook Messages and voice mail be considered under the GRAMA statute? The difference between a digital conversation and a digital record is whether the medium is designed to be preserved or discarded. Digital records such as blog posts are designed to be preserved while digital conversations such as twitter are not (just see how easy it is to retrieve or search old tweets, it’s not nearly as reliable as old blog posts). The default assumption on the part of government should be to preserve where possible. Holders of government office need to realize that the more information people have the more likely they are to agree with their elected officials. Those in favor of open government already realize that officeholders tend to make reasonable official positions in direct proportion to the amount of information they share with the public.
  6. How should we categorize the increasing new channels of electronic communication as they arise? Categorizing is not as important as retaining the default assumption of “preserve where possible.”
  7. Who owns the records? The elected official, the elected body, or the company that provides the electronic forum? I.e. Facebook, Twitter? Who should archive these records? For formal meetings and conversations the elected body owns the record. For informal settings the elected official owns the conversation. In all cases the owner is responsible for archiving records where possible. The better they do the more prepared they will be to respond to watchdog groups who already archive anything they feel they can use.
  8. Who should pay the real costs for searching and producing these records? the owner of the information should pay the costs of archiving the record while the person requesting access should pay the costs of searching and reproducing the records.
  9. Does a citizen have an expectation of privacy when they contact their elected official? Only if their contact is unrelated to policy or government function.
  10. Should records that contain information about a person’s health be protected? Generally yes.
  11. Should personal Email addresses be classified as protected records?Yes.
  12. Should a lobbyist have any expectation of privacy when they contact an elected official? No.
  13. The more complicated the rules for privacy become, the more complex and expensive the legal review in responding to records requests will be. Who should pay these costs? First, the rules should be simplified as much as possible. Second, the requestor of the information should generally pay those costs of compliance.
  14. Should the GRAMA statute contain intent language? If so, should the intent language be allowed to trump the actual text of the code? Intent language only opens the door for inconsistency of interpretation. If the text of the code alone produces results different than the intent of the legislature then the code should be altered. The intent should be included in the discussion when creating and debating the text of the code.
  15. Currently, GRAMA does not address which party has the burden of proof on an appeal to show that the public interest in disclosing a record outweighs the record’s private or protected status. Who should bear this burden of proof? If the legislature feels that information disclosure is in the public interest they should proactively make it available. The burden of proof when someone wants protected information made public should reside with the requestor.
  16. What protections should be afforded to the internal and deliberative processes in the three different branches of government? With the possible exception of judicial deliberations, the common sense of office holders should be such that their deliberations should be able to withstand public scrutiny. Likewise the public should be astute enough to figure out how much credence to give to anything that occurs during the deliberative process.
  17. Is there any situation in which a deliberative process should be protected? Should private creative brainstorming play any role in the policy-making process? In the legislative and executive branches at least creative brainstorming should be part of the process but it need not be private.
  18. Should the governor & legislature be allowed to discuss policy issues with staff in private before they take a public policy position? After a bill is passed or policy is made public, does this protection remain or open up retroactively? Yes, they should be allowed to have private discussions with staff before taking a public position but those discussions should be made available to public scrutiny once the position has been taken.
  19. Should elected officials’ discussions with their staff be presumed to be protected or presumed to be open? Under what conditions should elected officials’ communications with staff be presumed to be private? They might have a temporary protected status while choosing a public position. The only time they should be presumed private is when those communications are related to the staffing itself rather than any government function (in other words communications about people joining or leaving the staff may be presumed to be private).
  20. Is there a time-frame equation that could be useful in making information public? I.e. records presumed protected for a certain amount of time, then presumed public. it would be perfectly reasonable for a record to be presumed protected for the length of time it takes to review the record and correct any obvious mistakes.
  21. Should any person or organization be given a special exemption from fees associated with a GRAMA request? No.
  22. If the request requires the review or search of a large number of records, extensive redacting or other work, legal review, or technical expertise, who should be required to cover the cost of the request? The requestor.
  23. Should we revise the current GRAMA policy of not charging for the first 15 minutes spent to fulfill a request? Not unless there is some agreement on a longer period for free initial effort.
  24. Should the wise use of taxpayers’ funds be part of the assessment equation when assessing fees? In other words, should governments have the ability to waive fees if it is in the public’s best interest? Yes.
  25. Should the audit records of the State Auditor and Legislative Auditor General be protected if their disclosure would interfere with an audit, investigation, or internal procedures? Yes.
  26. Should attorneys representing a taxpayer-funded government entity have the same protections as attorneys representing private entities when creating documents or having communication about reasonably anticipated litigation? Probably.
  27. Should records relating to fiscal notes on legislation be protected until the legislation has passed or the session has ended? How about protected until the legislation reaches the floor for debate or the session ends – whichever comes first.
  28. What role does private communication among elected officials, constituents, and interested parties play in formulating good policy? What effect would classifying a record public or private records have on the legislative process? Private communication has no advantages in forming good policy, only in forming bad policy. When records are classified as public it serves as a deterrent to foot in mouth disease.
  29. What role should our legislature’s part time status play in the classification of information? Their part time status means that whatever they do in their employment outside the legislature should receive the same protections as any other employee unless it has some connection to government function or policy.
  30. Looking forward, how can we automate the legislative process of archiving records and properly making them available? That is a technical question and a technical answer is outside the scope of what I would try to address here even if I were qualified to do so.
  31. How does the decentralized and geographically dispersed structure of the legislative branch affect record production and storage of records? It has little bearing in our digital age.
  32. Is there a defining line or equation we could use to discern between the private life and public life of a elected official? Is there a same or similar line that would also work for a governor, citizen, activist, lobbyist, media representative or a government employee? The simple line is that before they declare their intent to run is their private life and after they are no longer a candidate or officeholder is also private life. Everything else is public life. For all others their life is public to the degree that they affect or seek to affect public policy.
  33. Is there a role for confidential discussions in the deliberative process in the different branches of the government? I don’t see how this question differs from questions 16, 17, & 18.
  34. Given recent advances in technology we have experienced an exponential increase in the volume of potential records available, and a concurrent increase in demand for those records. Given the reality of limited government resources, how should this workload be managed? Along with the volume and demand for records brought on by technology we also have an increase in the capacity of technology to help manage the records and consequently the workload. Is there actually a greater demand on resources or has technology already compensated for the theoretical extra burden of extra records and extra demand? If there is more burden on government resources the demand will be managed if the cost of record retrieval is paid by the requestor.
  35. What technological advances do you foresee over the next 10 years that will effect how we might archive and access public records? The ability to archive and access records will probably improve at least as fast as the number and type of records increases but I can’t guess what changes the next 10 years will bring. Perhaps the legislature should be required to periodically review GRAMA and determine if changes have become warranted.
  36. What further policy questions should we consider as we bring GRAMA into the next century? No further questions your honor.
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The Straw Man of Teacher Pay

Posted on 2011-03-01 by David

photo credit: 2create

I saw a post on Facebook, and later an email, with a title about how overpaid teachers are. The post went on to show mathematically that teachers are not overpaid by any reasonable measurement. Teachers and their unions would certainly appreciate the logic in their favor but the real value that I found in the post was not simply the numbers presented but the example that the post provides of using numbers to keep the debate uninformed. While it showed very convincingly that teachers are not overpaid (either literally or in relation to the service they provide) it masked the complexity of the issue by ignoring the crucial questions of how much we spend on education (it’s much more than teacher pay), whether we can afford the cost (whether or not the cost is a bargain), and what other alternatives we could explore to address the real issue (which is how we make sure that our children have a decent education available to them).

First let me list a few numbers (and their sources) that I would like to use in illustrating what was unsaid in the other post. I would like to thank Becky Edwards for helping me obtain the current numbers for the state of Utah that I am using. (Becky is currently the Representative for House District 20 in Utah and a member of the House Education Committee.)

  • The post compared teaching to babysitting and, using that assumption, concluded that parents should be perfectly happy to pay $20 per day for 6.5 hours of babysitting for each of their school aged children. Using that $20/day figure they calculated that teachers would be making over $100K per year. I don’t expect to use that $100K figure but wanted to include it here to briefly illustrate the conclusion of the original post.
  • The post also claimed that the average teacher salary was only $50K per year. I will be using that number because it seems reasonable and convenient but would like to state that I have made no attempt to independently verify its accuracy or its source.
  • The state of Utah currently spends $3.34 Billion on elementary education per year.
  • The state of Utah currently employs 32,473 elementary school teachers. (As far as I can tell that does not count administrators and other staff.)

It is easy to see that teachers salaries are only a part of what we spend on education. Multiply 32,473 by $50K and we get $1.62 Billion or 48.6% of our education budget. The other 51.4% goes to other education costs. Note that none of this education budget even includes the various book fairs, walk-a-thons, and other fundraisers that schools are perpetually engaging in. If the issue were simply a matter of teachers salaries we could easily pay them more. The fact is that less than half of our education cost is teacher salaries. Whoever originally wrote the document was probably thinking of all the fuss in Wisconsin where the Governor and the Republican members of their legislature are pushing legislation that would take away the collective bargaining rights of teachers for things other than salary – that should give us a clue that the real problem is not teachers with exorbitant salaries but rather unsustainable long-term benefits such as pension and health care costs.

I recently read an article about how dire the fiscal situations of state and local governments are in this regard (of course that is more than teacher salaries or even education) and the obstacles that stand in the way of fixing the structural problems that prevent something as simple as a salary cut or a tax increase from solving the issue:

. . . in most places, state legislators are overmatched by savvy public-employees’ unions and by pension-fund managers wedded to the status quo. Their influence explains why, though 18 states enacted some sort of pension reform in 2010, very few will offer real, long-term relief to taxpayers.

I feel very fortunate that my own State Senator, Dan Liljenquist, had the position and expertise to make sure that Utah is one place where we have enacted reforms that effectively address those structural imbalances. (To learn more about Dan and his efforts to make sure that Utah has a sustainable fiscal future read the article or visit his website.)

I also recently talked to a friend of mine who is a Democrat and a public school employee. I thought it was very telling to hear him bring up the subject of what was happening in Wisconsin and express his hope that the governor and the Republicans there would be able to win this fight and break the teachers union. His perspective was that unions only effectively protect the incompetent educators. He contends that the educators who are good at what they do are hampered by the fact that unions make it nearly impossible to fire ineffective educators or to pay effective educators based on their merit. While he believes, as I do, that there was a time when unions were a necessary tool to ensure that owners of various industries did not exploit their workers the fact is that the unions of today are more often the bullies. The contracts that teachers unions negotiate burden taxpayers with costly benefit packages while taking their dues out of the anything-but-excessive salaries of teachers and then they cry foul when taxpayers suggest that they should not pay part of teachers’ salaries when those teachers are spending their time on union activities rather than classroom activities.

The conversation with my friend illustrated the wide variety of alternatives that need to be considered in order to address the education issue. Simply throwing more money at the issue will not solve it. We need to look at ideas like merit pay, year-round school, reduced class sizes, increased parental involvement, etc. Some of those ideas seem promising to me, others seem neutral or even counterproductive. One idea I have not heard suggested anywhere that sounds very promising to me is grade clustering. Having a teacher teach, for example, three grades would allow for much more continuity in the education of each student. If the teacher still had a class size of thirty they would only have ten new students in one year that they would have to get to know and they would have more flexibility to have students work with older or younger peers based on their shared personal ability-levels. This would also allow parents to work with a single teacher for an extended period of time so that they could collaborate more effectively rather than working with a virtual stranger for the entire school experience of at least their first child. To buy into this we would have to accept the fact that teachers are not interchangeable automatons where there is little overhead involved in switching teachers every single year throughout a student’s academic career.

The $3.34 Billion Utah spends on education represent a substantial part of the roughly $12 Billion state budget – a budget that must also go to pay for so many other services that we collectively expect our government to provide such as higher education and various types of public safety and welfare services. Anyone who says that we should devote more money to education should make sure to offer some examples of where the state should get more revenue or what state services should have their budgets reduced to free up the money they want to give to education. It is also perfectly fair to ask whether there are areas in the $1.72 Billion in education spending that does not go to teacher salaries that is wasted. Do we pay administrators too much or employ too many administrators? Are we using our physical resources effectively?

Regardless of what side of the debate someone is on, it does no good for anyone to hold up the Teachers’ Salary straw man and proceed to beat their opponent in effigy.

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Orrin Hatch’s Insurmountable Obstacle

Posted on 2011-02-17 by David

photo credit: Gage Skidmore

Two years into his bid for re-election (yes, he has already been in obvious campaign mode for two years), in a recent tweet Orrin Hatch invited people to let him know if he was on the right track. My tweet length response was that he could not get on the right track unless he were to publicly admit to the errors in his past voting record. Upon further reflection I have a very non-tweet-length reply as I realized that, at least for me personally, that may not be enough.

Anyone who has been in office for 34 years will have votes in that time which should have been different. Anyone who has been alive for 34 years will have grown and changed within the last 34 years of their life. In other words, I would not expect a pristine record from anyone in Hatch’s position. I don’t consider seniority to be an insurmountable obstacle any more than I consider it sufficient reason to grant him another six years. To mitigate such a long tenure, I will only consider Hatch’s last two terms and pretend that his first 24 years in office were impeccable.

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A Failed Crisis?

Posted on 2010-09-13 by David

I would bet that almost all the people who have read The Fourth Turning have wondered at one time or another whether 9/11 was our nation’s crisis as predicted in that book. I know that I read somewhere that the authors of the book indicated that they believed that 9/11 was the crisis that marked our passage into the fourth, or crisis, turning for this saeculum (for those who have not read the book and may be unfamiliar with that term, a saeculum is composed of four time periods, called turnings, which each have distinct characteristics and last for the length of a generation – roughly 18 to 25 years – and the saeculum is equal to a long human lifespan – between 80 and 100 years).

I have long felt that if 9/11 was our crisis then we failed because nothing changed – we have not addressed any of the issues that have been pushing us toward crisis over the last generation. Today I stumbled upon 9/11 – A Fourth Turning Perspective by James Quinn. He does a great job of identifying the things that made me think that 9/11, if it was our crisis, was a failed crisis. As he talks about the book he mentioned that a fourth turning crisis ALWAYS leads to substantial change. That gave me hope (and dread) that our crisis had not come. Certainly 9/11 had the potential to be such a crisis, but apparently we were not ready to enter the next turning at that time.

Mr. Quinn goes on to speculate that our crisis was really the market crash of September 2008 and that our reaction to that crisis is not yet resolved. We have not come to a point where the outcome of our crisis can be known. In fact, the crash might even be viewed as the catalyst for a coming crisis rather than the crisis itself. Quinn goes on to describe the types of crises we might yet face in the near future (and keep in mind that there is no guarantee that we will face only one crisis) and some of the potential outcomes.

I won’t pretend to be smart enough to be able to say with certainty how accurate his speculation is, but it is certainly worth a read and some careful consideration.

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Limitations of Politics

Posted on 2010-05-12 by David

photo credit: RSzepan

Over the course of my writing here I have been asked why I focus so much on political issues and not so much on promoting a moral society. I think it’s a great question and I have thought much about it. The short answer is that my focus on this site is on the political system and how it impacts society as well as how we can have a positive effect on the system that is currently in place.

For some time now I have found myself falling back in private political discussions to the position that all the best efforts and intentions with regard to political activity are no more than a bandaid over the ills of society and that true progress and stability in society are utterly dependent on the underlying morality or righteousness of the society being governed. It is exactly the same with a wound: a bandaid can help keep it clean and impede further infection but real healing is an internal function of the body. From outside the body the most we can do is create an environment that is conducive to healing.

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Selective Enforcement of Law

Posted on 2010-04-26 by David

photo credit: ThreadedThoughts

In a not-particularly-surprising move, Arizona passed a very strict law giving police broad powers to crack down on illegal immigration. Equally unsurprising is the backlash from those who worry that rights will get trampled in the enforcement of this law. The biggest complaint is against the provision allowing police to stop anyone they suspect of being here illegally and have them prove that they are legal residents.

I don’t think anyone can reasonably argue that such authority would never be abused. More disturbingly to me, 60% of people favor this law despite the fact that 58% of people in the same poll believe that the rights of some citizens will be infringed upon by the enforcement of this law. If we assume that all 40% of people who do not favor this law are among the 58% who fear the rights of citizens will be infringed then there is almost 1 in 5 who is willing to infringe on the basic rights of citizens in order to enforce our essentially arbitrary immigration laws.

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Repeal vs Lawsuit vs Nullification

Posted on 2010-04-23 by David

photo credit: Smabs Sputzer

Ever since the passage of that rancid piece of legislative sausage labeled health care reform Republicans have been talking about repealing the bill. Some even talk about “repeal and replace” as their goal. Alongside that rhetoric (and that’s pretty much all it is at this point) there has been the action taken by the Attorneys General of many states to file suit against the constitutionality of the bill. My purpose here is not to discuss the issue of health care reform; rather, it is to talk about the differences between these two legal paths out of this reform as well as another path which is fundamentally different—nullification—which thus far has not been actively pursued by most opponents of the bill.
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The Race for Second

Posted on 2010-04-19 by David

Within hours after I wrote about how far Bennett is from winning this senate race Bennett himself essentially confirms my position by bringing out some friendly generals and shooting himself in the foot while taking aim at Mike Lee. All except possibly his most ardent supporters will rightly recognize that taking that shot is a sign that the Senator knows how dire his position is and who is in place to win the Convention vote. Even those who agree with Bennett’s position must recognize how much that shot can hurt him in the race and consequently how dire his position is to have him taking the chance.

What has been really interesting to me was not that Bennett recognized how slim his chances are right now (I’ve never thought that he was as ignorant and disconnected from that reality as the necessarily optimistic tone of his campaight might make him appear) but that the commentary from all quarters since he took the shot seems to converge on the fact that not only is Mike Lee the clear frontrunner of all the candidates, but Senator Bennett is probably not even his closest challenger. In the race for second place it appears that Tim Bridgewater is currently in the lead.

Right now as Bennett tries to peel some support away from Lee it may be Bridgewater who is the primary beneficiary instead of Bennett. At the same time, Mike Lee is working his hardest to make sure the race for the Republican nomination ends on May 8th. I’m confident that Mike understands that he can’t count on that result although his position seems very safe to be among the top two if there is a primary.

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Bennett’s Magic Number

Posted on 2010-04-16 by David

With polls coming out surveying actual state delegates we are beginning to get our first picture of where Bob Bennett’s chances really stand. Of course we should never implicitly trust a first picture but it’s better than all the guesswork before the delegates had even been selected and more grounded in reality than straw polls or surveys of likely primary voters.

The Bennett campaign continues to say publicly that they think they have a decent shot and that they are making headway among the delegates. We should expect that kind of public statement from the campaign because any serious candidate must be at least publicly optimistic about their chances or else they have no reason to stay in the race. Consider that, like the Bennett campaign, the official line from the Lee and Bridgewater campaigns is that they are making headway among the delegates. I’m sure if you added all their optimism up it would add to well over 100% of all delegates – and that doesn’t count the optimism from any of the other five candidates.

Along with polls come public discussions such as this one of what the polls actually mean and how the convention will play out. Of course all such discussions are nothing more than guesswork but there are a few facts that can tell us a lot about how long Bennett will hold a seat in the Senate. The first fact is that he needs to receive votes from 40% of the delegates to even land in a primary. Also, all the rhetoric from the various campaigns and the delegate poll seems to be remarkably consistent in placing Bennett-supporting delagates somewhere in the low 20% range right now. There is also strong consensus that Bennett is highly unlikely to be the second choice for many delegates because a large portion (easily over 40%, almost certainly over 50%, and quite possibly over 60%) will vote for anyone except Bob Bennett this year. Because of this I feel very confident in saying that Bennett’s magic number at the convention in first round voting is 30% of the votes.

Even if Bennett were the top vote getter in the first round, if he only received 29.5% of the votes in that first round I am very confident that he would not be able to pick up enough votes in later rounds to reach the 40% plateau no matter which of his challengers were left in the top three. (I am not limiting that possibility to Lee and Bridgewater even if they are the only challengers I have mentioned in the post.) Even if he were to receive the most votes in the second round, say 36% (that is my wildest imagination if the first round generated only 29.5% for him), the third round would see virtually every delegate who had not already voted for him voting for whoever was left of his challengers and there would be no primary.

If Bob Bennett currently has the support of 22% of the state delegates, as this poll has indicated, that would mean he needs to convince another 8% to support him in the first round. That is approximately 300 delegates he will need to sway in this highly anti-incumbent atmosphere to have any chance of surviving into a primary.

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