News from the Capitol--February 1, 2016

This past week was marked by the celebration of our state’s founding in 1861.  Kansas’ rich history is one all should study, since the day we joined the Union we have been at the center of many national debates over the meaning of liberty.

It is interesting that just at the time we celebrate our statehood, we are debating a change to the Kansas Constitution over the way we select our judges.  I discussed this last week in detail, but as the likelihood of a vote on the Constitutional Amendment increases, I wanted to emphasize again how important it is that we change the model to one more accountable to the people of Kansas.

To put it simply, no matter what issues are important to you – education, abortion, the death penalty, you name it – all are in constant jeopardy in a system in which an entire branch of government is controlled by a special interest group with no accountability to the people.

On the surface it sounds pretty innocuous – when a vacancy occurs on the Supreme Court, a 9-member nominating commission picks three nominees and sends them to the governor, who gets to pick among the three as his/her appointee.

But, the question is – who picks the pickers? That is, who selects the 9-member nominating commission?

Four of the members are chosen by the governor on a rotating basis.  Five – the controlling majority – are selected by members of the bar in a secret ballot in which only a fraction of attorneys usually vote.

The result?  An interest group – lawyers – without accountability to the public (they are not elected or appointed), select five people to be on a commission which selects who controls an entire branch of government. We are the only state in the country that does it this way – other states utilizing commissions do not have them controlled by a majority of unaccountable attorneys.

This system was designed about 55 years ago in response to a political scandal involving a vacancy that was filled by an interim appointment.  Instead of reforming the method of vacancies in the middle of a term, the government at that time decided to change the entire way judges were chosen. You see, from the founding of the state until the late 1950’s, judges stood for election. There is little to indicate that the election system was problematic. The new system, the nominating commission, also called the Missouri plan, has  proven to have its own problems. The problems have been rulings outside the realm of mainstream jurisprudence – such as, last week’s U.S. Supreme Court  8-1 ruling, which reversed and remanded The Supreme Court of Kansas’ decision in Kansas v. Carr ( which had overturned the Carr Brothers death penalty verdict).

This is why Kansans have pushed the legislature for meaningful judicial selection reform.  I and most of my colleagues, favor a model based on the federal system, where the governor would select the nominee of his/her choice, subject to Senate confirmation. This federal system has produced largely balanced courts over the course of our nation’s history. Even when a court is not balanced, it is fixable within a couple of election cycles. Our system in Kansas is not fixable by the will of the people, and that is why it necessitates reform.

Now, some will oppose this on partisan grounds citing the fact that Governor Brownback would get to make a selection. This is true. But, Sebelius would have still selected nominees of her liking, and the same for Graves before her and so on. The Founding Fathers debated the method of selection extensively, and Alexander Hamilton discussed judicial selection in The Federalist No. 78.  The federal method is the superior method. The commission system is a holdback from the mid 20th Century, when “neutral”, “non-partisan” boards of experts were the style a la the New Deal. As we see from other subdivisions of state government (school boards, city councils, county commissions), ‘non-partisan’ is sometimes code for ‘liberal’.

Of course, any change to the Kansas Constitution would have to be adopted by you – the people of Kansas – and I think it’s high time the people you elected to the State Legislature give you that right.

Correcting the Record
It’s an election year, which means over the course of the next few months, you will hear a variety of different viewpoints on exactly what the legislature did (or did not) do, from both the media and others.  Over the course of the next few months, I will anticipate some of these claims in a new section called “Correcting the Record.” I hope you find it informative and please do not hesitate to ask me any questions. 

This week I want to talk about the topic of education and the claim that the legislature passed a $200 million increase in funding for education as a trade-off for getting rid of the school finance formula.

First of all, the people elected their representatives to get things done, to find solutions, to move the ball down the field. Particularly frustrating to many Kansans had been the inability of state government, over a period spanning more than two decades, to find a long term solution to school finance. Here in Johnson County, a long-held source of frustration for many – even liberal columnists like Steve Rose – was the school finance formula, which was a convoluted mess that should have never been enacted in the first place (it only got one vote from Johnson County).  No meaningful reform would happen until we repealed this formula.

Second of all, it is also very important to remember that it takes 63 votes to pass anything out of the House. Thus, immediately replacing the formula with a new system of funding was not likely to take place in the same vote, as any new funding system would involve a long process. There needed to be a transition period, and that transition period had to provide stability to school districts. So, the legislature passed a responsible increase in education funding, partly to respond to judicial determinations – but it is very important to recognize this funding came with a new system of local control, tearing down the old system of “funding silos” where money was there, but was limited on what it could be spent on. The new block grant system gives school districts the flexibility to spend their allocated public funds   how they see fit.  Last year I read a KASB article that falsely claimed the block grant funding from year to year was flat. This harkens back to the Clinton years when a decrease in an increase was considered a “cut”. It is my understanding that it increases by CPI. A great number of districts have not decided to use this flexibility to give raises to their teachers, which is a shame.     

In the end, despite the fact that the schools are in a much better position with the end of the  cumbersome, obsolete formula, the bill passed with exactly 63 votes – no votes to spare – demonstrating just how difficult it is to get things done when so many simply do nothing except whine from the sidelines and vote no. I was part of the solution and our state is in a better place for it.