Iowa's Judiciary and Hamilton's Warning

Iowa's Judiciary Must Remain Independent
Nicholas Johnson
The Gazette, March 13, 2019, p. A6
Water quality. Education budgets. Healthcare. Opioid epidemic. Workforce development. Tax cuts. All important, all debated under the Golden Dome and in our not-so-golden homes, all appropriate subjects for a democracy’s discussions.

So how are changes in how Iowa appoints its judges different? Because a truly independent judiciary is one of the “columns of democracy” – institutions without which there is no democracy. The court system was deliberately created by our founders as a non-political institution to check the legislative and executive branches and protect citizens’ constitutional rights.

Turning the judiciary into a third political branch of government is like removing one leg from a three-legged stool. A democracy wobbles, falls, and ultimately dies without the supporting columns of democracy, such as the checks and balances of three branches of government, independent judiciary and media.

Many true conservatives are members of the Federalist Society. They’ve read the Federalist Papers, written by Alexander Hamilton, John Jay and James Madison in 1787 to promote the ratification of the new United States Constitution. [Photo credit: Wikimedia Commons; Alexander Hamilton portrait by John Trumbull, 1806.]

They are familiar with what Hamilton wrote in Federalist 78. All Iowa legislators should read it as well. Here are some excerpts:

"There is no liberty if the power of judging be not separated from the legislative and executive powers. Liberty can have nothing to fear from the judiciary alone but would have everything to fear from its union with either of the other departments.”

“This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of … designing men, or the influence of particular [circumstances which] sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

“No man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.”

“If the power of making [judicial appointments] was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either.”

It is as if Alexander Hamilton had arisen from the dead and walks among us. He was spotted on stage in Des Moines’ Civic Center last June, and his Federalist 78 speaks to us today as if he wrote it yesterday.

True conservatives, who look to the “original intent” of those who wrote our State and federal constitutions, will resist the current lure of instant additional political advantage. They will read Hamilton’s words over again, understand that without a non-partisan independent judiciary there can be no democracy, and do all in their power to oppose those who would further politicize our courts. _______________
Nicholas Johnson of Iowa City is a three-time presidential appointee and author of, most recently, "Columns of Democracy." It will be discussed at Iowa City's Prairie Lights Books, March 30, 4 p.m. Comments: mailbox@nicholasjohnson.org

# # #

Dorman Enlightens on Law Process

Note: The Todd Dorman column to which this Letter refers has been reproduced at the bottom of this post. This Letter to the Editor of The Gazette was published by the paper, but apparently never entered as a blog post here. A hard copy having been found, along with a Gazette digital version, the Letter is being posted now, March 5, 2018, five years later, "for the record."

"Dorman Enlightens on Law Process"
Nicholas Johnson
The Gazette, June 29, 2013, p. A5

Todd Dorman’s column is always a good read. But he outdid himself with his investigation and revelations in “Auditor law ‘mystery’ is not” (June 20).

His description of the Iowa legislative process reminds me of my late friend Molly Ivins’ regular commentary regarding what she called the “Texas Ledge” (“I never saw anything funnier than Texas politics”).

Dorman’s column ought to be required reading for students learning from our old filmstrips, “How a bill becomes law.”

Nicholas Johnson
Iowa City

# # #
The Original Todd Dorman Column
"Solving the Legislative Mystery of the Auditing Auditors"
Todd Dorman
The Gazette, June 20, 2013
Some questions are tough to answer. Why are we here? What does it all mean?

How did a provision get tucked into a budget bill at the Statehouse?

The provision, in this case, allows county auditors to actually audit county accounts and transactions. It adds 27 words to the Iowa Code, and hands Linn County Auditor Joel Miller a prize that he could not win through a nasty three-year court battle with the Board of Supervisors. The auditor may begin auditing July 1.

Those words were added to a roughly 40-page budget bill funding state government administration and regulation. It went through a joint House-Senate subcommittee, two appropriations committees, passed both chambers, went to a conference committee, passed both chambers again, and then on to the governor, who signed it Monday.

And yet, this week, news of auditing auditors hit these parts like a bolt from the blue. Its conception unclear, perhaps immaculate.

“Honestly, I don’t know where that came from, and I wasn’t aware of that specific change until I read about it in the paper,” said Rep. Art Staed, D-Cedar Rapids, when I called him Wednesday morning. He sits on the subcommittee where the bill began. And he wasn't the only lawmaker I contacted who was unaware of the provision.

“No, I know we didn’t have a discussion in committee," said Rep. Tyler Olson, D-Cedar Rapids, who was the top Democrat on the House Appropriations Committee. "I didn’t have anyone talk to me for or against it outside of the committee."

By Wednesday afternoon, Staed was piecing the mystery together. He went back through the records and found that the auditor provision was added to the bill during a March 14 subcommittee meeting. The stated intent at the time, he said, was to allow auditors to keep tabs on federal social services dollars and flood relief bucks. But the Linn County power struggle never came up.

No written amendment was filed. The idea was simply added to the bill on a voice vote, Staed said.

“It was kind of a magically appeared thing,” Staed said. “Makes you want to be more cautious next time.”

Staed’s explanation fits the paper trail. On March 12, the non-partisan Legislative Services Agency issued an analysis of the administration and regulation budget bill with no mention of auditing auditors. When a new analysis arrived on March 14, the language was included. And it stayed in until it became law.

Sen. Liz Mathis, D-Robins, who co-chairs the budget subcommittee and floor managed the bill in the Senate, also checked on the history and said in an email that a subcommittee staffer noted a discussion on flood relief auditing and a voice vote.

But who proposed it? House Speaker Kraig Paulsen, R-Hiawatha, said it was Rep. Jason Schultz, R-Schleswig, a subcommittee member and chair of the Local Government Committee. “That’s my understanding,” said Paulsen, who frowns on putting non-spending policy proposals into budget bills, but supported allowing auditors to audit.

Schultz called me while he took a short break from field work on his farm. “I guess I’m kind of excited that somebody noticed I did something,” Schultz said.

Schultz said he’s been concerned about issues surrounding county mental health funding and how it’s being spent. “Who is watching the money?” Schultz said. “I asked around and found out that county auditors can’t audit.”

Surprised, Schultz offered up his simple idea to change that. He said he had no knowledge of the Linn County dispute.

So one lawmaker noticed what he saw as a problem and offered a solution. But almost no one noticed his solution until it became law. Mystery solved.

These things happen in the Legislature. Among the hundreds of bills and amendments moving around the joint, surprises are always possible, make that probable. And as surprises go, this isn’t going to jolt the course of Iowa history.

But it is a significant change, one that probably deserved additional legislative discussion and public scrutiny. I think it’s a good change. Letting auditors audit puts another set of eyes on taxpayer bucks. Now we just need sharper eyes in the Legislature.
# # #

UI Funding Worse Than Thought

President Bruce Harreld has shared some numbers regarding financial support the UI receives from Iowans and their elected representatives – with the conclusion that therefore "the university must increase its tuition." Bruce Harreld, "UI Must Press Forward Despite Disinvestment in Higher Education," The Daily Iowan, February 13, 2018. [Photo credit: Nick Rohlman/The Daily Iowan.]

Putting aside, as the old line has it, "I followed him all but the ‘therefore'" regarding tuition increases, the numbers cried out for more analysis. That analysis suggests the Iowa Legislature’s abandonment of higher education (while simultaneously bemoaning the shortage of skilled workers and exodus of young Iowans) is much worse than even President Harreld thinks it is. Our representatives have essentially transformed what Iowans once happily supported, and proudly called SUI -- The State University of Iowa -- into just another (at least 90%) private university.

He reports that, since 1998 (20 years ago), the total state budget has increased from $4.36 billion to $7.26 billion, while the UI’s appropriation declined from $223 million to $216 million. Meanwhile, enrollment increased from 27,871 to 33,564.

To make sense of those numbers, it is helpful to consider the impact of inflation, increase in the number of students, the appropriation per student, and the UI’s percentage share of the total state budget.

What cost you $1.00 in 1998 now sells for $1.50. You can’t meaningfully compare an appropriation of $223 million in 1998 with $216 million in 2018 – as bad as a $7 million reduction may look. You must consider inflation. A $223 million appropriation 20 years ago would be $334.9 million in 2018 dollars. The shortfall has not been $7 million, it has been nearly $120 million!

As a share of the state’s total budget the UI has dropped from 5.1% to 2.97%.

Comparing the appropriation per student for both years also requires an inflation adjustment. In 1998 the state appropriation was $8001.15 per student; this year it is $6435.47. Again, this is not merely a reduction of $1565.68; after inflation, it is a reduction from $12,016.12 -- $5580.66.

Sad.

For much more on this subject, and its consequences for the State of Iowa, see, Nicholas Johnson, "Iowa’s Economic Foundation? Graduate Education & Research," FromDC2Iowa, May 5, 2014.

# # #

How to Save Higher Ed

Saving Higher Ed; Step1: Listen to What Iowans Want

Nicholas Johnson

"Insight & Books," The Gazette, March 19, 2017, p. D1
As a child of the University of Iowa – literally and figuratively – its current financial woes are troubling.

Frankly, I don’t think the Iowa Legislature can pass the laugh test when it awards $12 billion in tax breaks while fashioning a $7 billion state budget and then says it “can’t afford” to adequately fund its “state” universities. The truth? It just has other priorities.

What to do?

The American Academy of Arts & Sciences recommends its Lincoln Project’s “An Educational Compact for the 21st Century” (http://tinyurl.com/hk59pq9). It’s not the first proposal for our plight, and won’t be the last – but it’s coherent and data driven.

On March 9, the Academy organized a powerhouse panel in Iowa City (and later Des Moines) to discuss this Compact. It was headed by the project’s co-chair, Mary Sue Coleman, President, Association of American Universities, and former president of the Universities of Iowa and Michigan. Joining her were UI President Bruce Harreld and former University of Illinois Chancellor Phyllis Wise.

Our multi-faceted Jim Leach added to the panel his experience as our former member of Congress, Chair of the National Endowment for the Humanities, and currently UI's Senior Scholar, Chair in Public Affairs, Professor of Law, and Interim Director, Museum of Art.

It turns out that Iowa’s woes are part of a national trend. States’ support of research universities declined 35% the last 17 years (per full-time student, in constant dollars). Private universities have three-to-four times state schools’ funding per student. We can hope for a brighter future, but as President Harreld said, “Hope is not a strategy. We may need a ‘Plan B.’”

There’s more to the Educational Compact than a column can hold: the impact of research universities' discoveries on Iowa's (and the world's) economic growth and job creation (the mere purchases of eight schools put $2 billion into 1750 counties one year), their research that corporations can’t or won’t do, their advances in medical science, their innovative cost-cutting efforts, the economic as well as personal value from arts and humanities (Jim Leach’s HUMANISTEAM), or their financial aid for low income undergrads, among many others.

The tuition-free college programs of California and New York – and the one in the post-World War II GI Bill – were a major reason for those states, and our nation’s, spurts of economic growth.

But if that evidence isn’t enough, how can legislators be persuaded?

President Harreld came the closest with his insightful, joking (and illegal) proposal for a vote-buying, pro-education PAC.

There’s another Politics 101 approach that never came up; something I’ve been harping on for years and was reminded of November 8, 2016.

In 1936 President Roosevelt won by over 24% (61% to Alf Landon’s 36%). The coalition that made that victory possible – the unemployed, working poor, working class, and ultimately union members -- held for 40 years. When the Democratic Party started turning to Wall Street and corporations for the money, and the East and Left coasts for the voters, it lost its natural constituency along with its soul – a constituency that, had it been served, could have assured victories in every election from school board to White House.

For higher ed to restore its state funding it needs the support of legislators; to have the support of legislators requires the support of their constituents. Higher ed has been as neglectful of its constituents as the Democrats have been of theirs.

Historically, Iowans’ enthusiasm and generosity for education has been overwhelming. It still could be.

In the 1800s they paid for 12,000 one-room schoolhouses for their kids. In the 1900s they were rightfully proud of funding a K-12 system ranked among the nation’s best. Iowa State University began in 1858, was aided by President Lincoln’s Morrill Act of 1862, and “focused on the ideals that higher education should be accessible to all.” But it, the University of Iowa, 1847, and University of Northern Iowa, 1876, were primarily built with Iowans’ dollars, further evidence of Iowans’ continuing financial commitment to these educational ideals.

It’s clear why businesses in Ames, Cedar Falls, and Iowa City, should support the Regents’ universities. But why should the residents of Iowa’s 96 other counties? How can we answer their question, as President Harreld posed it, “What have you done for us lately?”

We have answers: Where do you think your agricultural research, doctors, nurses, and teachers come from? (http://tinyurl.com/hrf9wwb; click on any county)

Main Street in Holstein, Ida County, one of my favorite western Iowa towns.

But what if they don’t have those doctors, our graduates aren’t their kids, and our astrophysicists’ discoveries haven’t touched their lives?

Let’s start by asking, “What do Iowans most want in their communities?” Then let’s shut up and listen, rather than telling them how great we are. As President Harreld said, “We can’t just wait for the people to come; we need to reach out. We owe the public something back.”

We’ve taken baby steps in that direction. I went on two of what are now called the University of Iowa Engagement Tours – Iowa professors travelling by bus, discovering our beautiful state, meeting with local leaders.

OK. But what we most need is at least a ten-fold expansion of what the UI calls our “Outreach” program. (http://tinyurl.com/j64swh5) Listening to the legislators’ constituents, then surveying the universities’ resources to see what we could do, as their responsive partners, to help solve their communities' problems or flesh out their proposals.

Iowa Public Radio, the multi-million-dollar statewide radio network, licensed to Iowa’s universities, could be a big assist with this effort.

We don’t need another bus ride. What we need is a “full Grassley” of 99 counties with an army of listeners.

The rule in Washington is that you do ten favors for a politician before you ask for one in return. The same applies to universities’ constituents. What collaborative favors have we done for Iowa’s communities lately?

This political approach will take time, yes, but it’s legal, will cost a lot less, and produce a lot more, than that PAC.
____________________
Nicholas Johnson of Iowa City is a retired member of the University of Iowa College of Law faculty, one-time Democratic primary congressional candidate, and three-time presidential appointee. comments: mailbox@nicholasjohnson.org

[For The Gazette's online presentation of this column click HERE.

The material also ran as a column in the Iowa City Press-Citizen: Nicholas Johnson, "Solutions for Iowa Higher Ed's Woes," Iowa City Press-Citizen, April 12, 2017, p. A7]

# # #

Funding Iowa by Selling Assets

February 17, 2011, 12:20 p.m.

Legislators Selling Pollock Thinking Too Small
(bought to you by FromDC2Iowa.blogspot.com*)
"Elections have consequences," it is said.

One of those consequences for Iowans, it appears, is the Republicans' proposal to sell off the University of Iowa's Jackson Pollock painting (a 1951 gift from Peggy Guggenheim). William Petroski, "House Panel Favors Selling Pollock Art," Des Moines Register, February 16, 2011 ("An Iowa House subcommittee Wednesday supported the sale of a famed Jackson Pollock painting in the University of Iowa's art collection, saying the proceeds could fund thousands of student scholarships. Rep. Ralph Watts, R-Adel, who was chairman of the three-member panel, said an amended bill requiring the Iowa Board of Regents to sell the world-class Pollock painting, 'Mural,' will set a minimum price, probably about $120 million. The painting had an estimated value of $150 million in 2008.")

Critics of the suggestion point out a number of problems with the sale, including the lost trust (and money) from formerly potential donors, and the UI Art Museum's loss of accreditation.

The more serious problem is that legislators and their critics alike are thinking too small.

It's like their counterparts in Washington, attacking a $14 trillion debt by eliminating $60 billion worth of social programs while increasing the near-$1 trillion Defense Department budget.

Iowa's economic and budget challenges, like those of other states, require the most creative ideas from all its citizens -- not just the little bit produced by selling a painting. Besides, one of my ideas is a win-win, where we virtually double what the Pollock can produce while retaining title -- sort of.

(1) Naming Rights. We have sold off naming rights for most of our buildings and colleges. Once named for academics, scholars and scientific researchers, they now reflect our basic values through the names of their wealthy donors. But the one opportunity we've held in reserve is naming rights for the University itself.

Larry Flynt is rumored to be interested in this possibility. Plus, he's more flexible than some potential donors, both as to the name and the amount. While I've heard $100 million mentioned, my understanding is that's just for starters, and that he might be willing to go as much as twice that. He's apparently even willing for us to keep Iowa in the name. That is, he would be willing for us to be called "The Larry Flynt University of Iowa," or "The Hustler Magazine University of Iowa" (not just "Larry Flynt University" or "Hustler University").

This sort of thing is not unprecedented. "Duke University" -- certainly a respected institution (ranked 9th nationally by U.S.News) -- is named for a benefactor whose money came from the tobacco sales that today contribute to some 400,000 deaths annually, James Buchanan "Buck" Duke. Not only that, but his business practices were so illegal that his company was ultimately busted up as an antitrust violation in 1906 into the three companies American Tobacco Company, Liggett and Myers, and the P. Lorillard Company. I don't see Duke taking a lot of heat these days for that association, and I don't see why we should be concerned about Hustler Magazine. Hustler may not be my taste in magazines, but so far as I know, no one ever died from reading it (which is more than you can say for Duke's product).

(2) Iowa's Most Valuable Asset. As long as we're looking around for state assets that we might auction off, why start with something that will produce so little revenue as a Pollock painting?

What's our most valuable physical asset? Think about it. Right. Our topsoil. OK, I know that most of it is by now in Louisiana. And how much money did we get for that? Nada, zero. We just flushed it down the river. Gave it away. How much sense does that make when we need a way to fund the Legislature's proposed 20% tax cut for Iowa's wealthy? William Petroski, "Iowa House Passes 20% Tax Cut in All Brackets," Des Moines Register, February 16, 2011.

Moreover, I think I've found a buyer. Who owns the most land in the United States, almost all of which is devoid of Iowa-quality topsoil? That's right, Ted Turner. I don't know Ted well, but I've met with him on a number of occasions and I think we have a mutual respect for one another.

As his Web page explains,

With approximately two million acres of personal and ranch land, Ted Turner is the largest individual landholder in North America. Turner lands are innovatively managed and work to partner economic viability with ecological sustainability. All Turner ranches operate as working businesses, relying on bison and outfitting as principal enterprises. In addition, Turner ranches support many progressive environmental projects including water resource management, reforestation and the reintroduction of native species to the land.

Here's a public spirited guy who can sit down and write a check for $1billion to help fund the United Nations, who's clearly interested in the land, but hasn't really been involved in agriculture as such at a time when the world's people are confronting an impending food crisis.

Right now we're just paving over what remains of this largely eroded valuable asset, with suburban housing, malls, highways, and industrial parks. How much sense does that make? Let's remove our most valuable asset first, sell it to the highest bidder, and then build on top of the clay that makes for a better foundation anyway.

You'll be the first to know if I get an offer from him.

(3) Most Innovative, Most Remunerative. Unfortunately, I can't give you the name of the next source of budget money for the State Legislature (and University), because he wishes to remain anonymous for now. But there are some Las Vegas individuals who have expressed an interest in the Old Capitol.

I once had a friend whose father bought a European castle for her, brought it back to America stone-by-stone, and reassembled it here. It really was quite grand.

That's the idea. The Old Capitol would be very carefully taken down, with each stone carefully preserved, and shipped to Vegas, where the building would be reassembled and incorporated into a new casino complex that will be the largest and grandest in the city.

There are variants on this idea that are still on the table.

Because the investors are also interested in the Pollock, and understand the University's reluctance in selling it, they have approached the Nevada governor and legislative leaders with this idea. Just as an American embassy in a foreign country is treated as "U.S. territory," so the land on which the reconstructed Old Capitol would stand would be declared to be property of the State of Iowa (requiring, of course, Iowa Legislative approval). One of the advantages of this approach is that the Pollock could hang in the Old Capitol, which would continue to be a part of the University of Iowa, thus complying with the donor's conditions.

Apparently an Iowa alum, who is also a part of the Vegas group and a big Hawkeyes fan, has proposed that the Nile Kinnick statue also be included in the deal.

It's a win-win, where the whole is much greater than the sum of the parts. By making a package of the Old Capitol, with the Pollock, with the Kinnick statue, the Legislature will have access to far more revenue than anyone ever dreamed of getting for the Pollock alone.

Oh, yes, and they're also willing to pay for the construction of a gambling casino on the Pentacrest where the Old Capitol now stands that would be called "The Old Capitol Casino."

Of course, that's far from a done deal because the Riverside Casino fears the competition and is strongly opposed. Given the revenue the gambling industry provides the athletic program with advertising on the football scoreboard, transporting fans to the games, and its skybox, among other things, that is obviously something that would have to be considered.

We can make it through these financial times, fellow Iowans. All we need is just a little more creative thought.
_______________

* Why do I put this blog ID at the top of the entry, when you know full well what blog you're reading? Because there are a number of Internet sites that, for whatever reason, simply take the blog entries of others and reproduce them as their own without crediting the source. I don't mind the flattering attention, but would appreciate acknowledgment as the source -- even if I have to embed it myself.
-- Nicholas Johnson
# # #

Guns Do Kill -- 30,000 Americans a Year

January 10, 2011, 7:00 a.m.

Just Americans Toasting Toast
(bought to you by FromDC2Iowa.blogspot.com*)
America's flags are at half-staff. The country mourns the victims of six more handgun deaths. Those among them receiving the most media attention are the very popular Democratic Congresswoman Gabrielle Giffords, federal judge John M. Roll, and a nine-year-old girl, Christina Green, who played on the boys' baseball team, had just been elected to her student council, and came out to meet her member of Congress for the first time. E.g., Marc Lacey, "Federal Charges Cite Assassination Plan," New York Times, January 10, 2011, p. A1.

Meanwhile, the munitions makers, gun manufacturers, handgun retail outlets and shows, and their very generous campaign contributor and powerful lobbying arm, the National Rifle Association, like to disassociate themselves from America's handgun homicides.

One of their favorite lines is, "Guns don't kill people, people kill people." To which one of the popular rejoinders of sanity has been, "Yeah, and toasters don't toast toast, people toast toast."

They are hoping that the fallout from Saturday's events will soon blow over and handgun sales will not only return to normal, but may actually increase.

Sadly, although the memories of Saturday will gradually fade, the nation's deaths from handguns will not. Over 30,000 Americans will die from guns. Of the 18,000 homicide deaths, 68% will involve guns. Few if any Japanese will die from gunshot wounds; their rates of gun deaths are a minuscule fraction of ours.

According to the CDC's latest statistics, of 18,361 homicides 12,632 were death by handgun. "FastStats: Homicide," Centers for Disease Control and Prevention.

Of course, homicide is not the only cause of firearm deaths. The total death toll is closer to 31,000.

Firearm—In 2006, 30,896 persons died from firearm injuries in the United States (Tables 18–20), accounting for 17.3 percent of all injury deaths that year. Firearm suicide and homicide, the two major component causes, accounted for 54.6 and 41.4 percent, respectively, of all firearm injury deaths in 2006. In 2006, the age-adjusted death rate for firearm suicide decreased significantly from 2005 by 3.5 percent, from 5.7 deaths per 100,000 U.S. standard population to 5.5. However, the age-adjusted rate for all firearm injuries was the same in 2006 as in 2005—10.2 deaths per 100,000 U.S. standard population (Tables 18–20).

CDC, National Vital Statistics Reports, Vol. 57, No. 14, April 17, 2009, p. 11.

And for every firearm death there are twice as many firearm injuries.

Firearm injury in the United States has averaged 32,300 deaths annually between 1980 and 2006 (See Figure 1).2,3 It is the second leading cause of death from injury after motor vehicle crashes.4 An estimated two nonfatal injuries occur for every firearm death.5,6 The 2006 age adjusted death rate from firearm injury is 10.2/100,000 with an estimated nonfatal injury rate of 23.6.7 Firearms are involved in 68% of homicides, 52% of suicides, 43% of robberies, and 21% of aggravated assaults.8,7 Deaths peaked in 1993 at 40,000 in the early 1990s and fell below 30,000 in 1999. Yet even at these lower levels, firearm injury represents a significant public health impact, accounting for 6.6% of premature death in this country (Years of Potential Life Lost (YPLL) prior to age 65).9 The fatality rate of firearm violence is more than twice the U.S. Department of Health and Human Services’ “Healthy People” goal for the year 2010.

Firearm & Injury Center at Penn, Firearm Injury in the U.S., Final Resource Book Updated 2009.

And so how has the Iowa Legislature responded to this carnage? Why by giving the NRA what it wants in exchange for its campaign contributions and members' votes -- an increase in gun sales as a result of a new law creating an ability for virtually all Iowans to carry concealed handguns, notwithstanding the judgment of their local sheriff that it's dangerous to give them a permit to carry. Tom Alex, "Iowans flock to sheriffs to apply for gun permits," Des Moines Register, January 5, 2011 ("Several Iowa sheriffs' offices reported receiving 10 to 20 times as many weapons permit applications on Monday as they do most days. Monday was the first day government offices were open since Saturday, when a law took effect that requires sheriffs under most circumstances to issue permits to carry concealed weapons. Sheriffs previously had greater discretion to deny or restrict such permits.").

Even in the lawless, wild west of old, Iowans had the sense to forbid six-shooters in bars and taverns. Iowa's legislators, yearning for the past, missed that nuance, and have provided that even those who can't walk and chew gum at the same time can legally drink and carry a gun at the same time.

Of course, it doesn't help when politicians say "don't retreat, reload," or put gun sights over opponents congressional districts (as Sarah Palin did with Congresswoman Giffords' district), or talk show hosts speak of "Second Amendment solutions," or say that when ballots don't work there are always bullets. If America's largest corporations think what they say in their multi-billion-dollar advertising on radio and TV is powerful enough to manipulate human behavior, it's hard to believe that illusions to assassination are totally harmless. See, e.g., Paul Krugman, "Climate of Hate," New York Times, January 10, 2011, p. A21; Froma Harrop, "Despite gunman's mental state, it was still a political attack," Dallas Morning News, January 11, 2011.

Harrop writes,

House Speaker John Boehner['s] . . . contention that this was "an attack on all who serve" wasn't quite right. Jared Lee Loughner['s] . . . attack was not against "all who serve." It was on a Democrat who had been vilified by a gun-waving right wing that Boehner's party tolerates and feeds with self-pitying visions of oppression. Democrats have no Palin-like figure putting political opponents in the cross hairs of gun sights . . .. There is no Democratic version of Giffords' recent Republican opponent . . . "Get on Target for Victory in November. Help remove Gabrielle Giffords from office. Shoot a fully automatic M16 with Jesse Kelly." . . . Jeff McQueen, a tea party "leader" . . . told NPR: "We have a choice of four boxes if we want to make political change in this country. We can go to the soap box, we can go to the ballot box, or we can go to the jury box, and hopefully, we won't have to go to the bullet box." . . . Tom Ashbrook responded: "Bullet box! Are you talking about armed revolution?" McQueen answered . . ., "Have you seen ammunition sales in the last 12 months?" . . . [T]he Republican senatorial candidate in Nevada, Sharron Angle . . . added, "I hope we're not getting to Second Amendment remedies."

But however much debate there may be regarding the impact of speech, there should be very little debate regarding the impact of guns. The numbers are overwhelming.

Of course the real problem is all the frustration building up in those Americans who are still convinced they don't need a toaster to toast toast.

Related: Nicholas Johnson, "Branstad and Public Transparency," Iowa City Press-Citizen, January 5, 2011, p. A7, embedded in "Governor Branstad's 'Transparency,'" January 5, 2011 (urging more media stories that "associate those appropriations [of taxpayers' money to for-profit corporations] with the legislators who voted for them, and how much those legislators received in campaign contributions and lobbying expenses from the recipient of the appropriation.").

Nicholas Johnson, "Police Accidental Shootings -- Of Themselves; Additional Risks from Armed (Campus and Other) Police: Accidental Self-Inflicted Wounds," May 9, 2008.

Nicholas Johnson, "A Public Health Response to Handgun Injuries: Prescription -- Communication and Education," American Journal of Preventive Medicine (May/June 1993) ("So long as we are unwilling to adopt effective, fail-safe solutions--actually removing these instruments of carnage from our midst--the price exacted for this "freedom" will continue to be thousands of lives of children and adults.").
_______________

* Why do I put this blog ID at the top of the entry, when you know full well what blog you're reading? Because there are a number of Internet sites that, for whatever reason, simply take the blog entries of others and reproduce them as their own without crediting the source. I don't mind the flattering attention, but would appreciate acknowledgment as the source -- even if I have to embed it myself.
-- Nicholas Johnson
# # #

Deficits, Taxes, Culver and the Highway Lobby

December 13, 2009, 8:25 a.m.

Support the Troopers: A Rational Approach to Taxation
(brought to you by FromDC2Iowa.blogspot.com*)
Governor Chet Culver, looking down the well into a near-billion-dollar 2010 deficit, wants to take $46 million from Iowa's $1.144 billion Road Use Tax Fund to keep the State's Highway Patrol on the roads. Thomas Beaumont and William Petroski, "Culver takes on road industry," Des Moines Register, December 12, 2009.

Few if any industries have more power over states' legislatures than their highway lobbies. Iowa's no exception. They are an important sub-set of the industries that, together, have created America's global-warming-auto-dependent transportation system -- leaving us without the passenger rail networks other nations have. Think about it: the oil companies and their station owner-operators; the automobile manufacturers, unions, and dealers; the cement, steel, heavy equipment, and highway contractor companies; all the independent auto repair businesses; the auto scrap steel firms -- it goes on and on. We've paved some 61,000 square miles of America for roads and parking lots. That's an area that, if it were a state, would make it the 24th largest state in the country. It's roughly half the 76 million acres of soybeans, or 85 million acres of corn, farmers predicted they'd plant this year. "USDA Expects Corn, Soybean Acres on Par with Last Year," Newsroom USDA National Agricultural Statistics Service, March 31, 2009.

As the Register reports, "'This will be a bloodbath if it goes forward. This will absolutely be one of the most controversial issues of the session,' said Scott Newhard, vice president of the Associated General Contractors of Iowa." On the other hand, "The State Police Officers Council, a bargaining unit for troopers, 'is very much in favor' of Culver's plan to divert road fund money for the State Patrol, said Sue Brown, the council's executive director."

So there you have the level of analysis of this proposal at the moment: "bloodbath" vs. "support the troopers."

Can we do better? I think so. But rather than take sides in this battle of the titans, here's an effort to bring some rational, neutral principles to the analysis.

1. "What do you mean?'and 'How do you know?'" For starters, to have a rational and civil discussion we need to agree to use a more precise language and support it with data. Railing against "taxes" or "government" isn't very productive.

2. Taxes as currency. Taxes are just another way we buy stuff. We may use cash, checks or credit cards to buy clothes at the mall. We may use loans from a credit union, or auto dealer, to get a car. We may have deductions from our paycheck for a retirement fund or health insurance. We use taxes to buy our kids' K-12 education, the roads and sidewalks they travel to get there, our police and fire protection.

3. No system's perfect. You may buy a toy for your kid at the mall that breaks shortly after you get it home. The auto dealer may sell you a lemon, and then refuse to do anything about it. Your health insurance company may refuse to pay for a procedure that you think is covered by the policy you have been faithfully paying for. And we've just seen what Wall Street banks can do to our entire economy. Is there ever "waste, fraud and abuse" in government programs? Of course. (See, e.g., "State of Iowa Agency Reports on Tax Credits," December 14, 2009 (a pdf file); Clark Kauffman, "Audit: State Jobs Office Failed to Track Money," Des Moines Register, December 12, 2009.) But that's more a human condition than something endemic to government enterprise.

4. Think programs, not taxes. "Cost," standing alone is almost meaningless. It needs to be related to "benefit;" that's why there's such a thing as "benefit-cost" analysis. It's the same in for-profit businesses and government programs; the question is not "what are we paying?" it is "what are we getting for what we are paying?" It's not "how much did we invest?" it is "what is our return on this investment?" We can and do argue about values and ideology, and the validity of the formulas and data we use to arrive at those representations of costs and benefits. But at least those arguments about the utility of government programs are much more productive than arguing about "taxes" qua taxes.

5. Consequences, fairness and alternative taxes. There are many ways of raising money through taxation. Among the more familiar are income taxes, property taxes, sales taxes (and the related "value added" or VAT taxes), "sin taxes" (e.g., cigarette and alcohol taxes), capital gains, estate taxes, and "user fees" (e.g., entrance fees for public parks, swimming pools or museums; as distinguished from the "free" use of K-12 schools, for which there may also be fees).

Even if there is agreement about the benefit-cost utility of a given government program there can still be disagreement about the most appropriate and fair type of tax, and way of assessing and collecting enough taxes to pay for it (e.g., the poor may pay a disproportionately higher percentage of their income in sales and FICA taxes than the rich; property taxes may drive the elderly on fixed Social Security or other income from homes being taxed on assessed values ten times or more what they originally paid for their house).

The principle of "progressive" income tax rates has been with us since 1862, "History of the Income Tax in the United States," Information Please -- that is the notion that it's only fair the rich should pay at a higher rate than the poor (Sweden's marginal rate in 1979 was 87%) as well as paying that rate on a larger pot of income. Given that the wealthy have been notoriously more generous with their campaign contributions than the poor, legislators have tended to reduce the difference between the rates paid by each of those groups of constituents. "Between 1983 and 2003 the average (top) corporate tax rate of advanced OECD countries fell from around 50 to around 32 percent, the average top personal rate from around 66 to 48 percent." Steffen Ganghof, "Progressive Income Taxation in Advanced OECD Countries. Revisiting the Structural Dependence of the State on Capital," Paper presented at the annual meeting of the American Political Science Association, Chicago, August 23, 2004. The U.S. top marginal rate of 35% is, of course, well below the OECD average. And see Alan Reynolds, "Marginal Tax Rates," The Concise Encyclopedia of Economics (with a table of 47 countries' marginal tax rates that places the U.S. in the bottom half). Many Fortune 500 corporations pay nothing at all. Robert McIntyre and T.D. Coo Nguyen, "Freeloaders: Declining Corporate Tax Payments in the Bush Years," Multinational Monitor, vol. 25, no. 11 (November 2004).

(Speaking of progressive taxation, Sherman Johnson has emailed me his suggestion for applying the principle to fines. He's got a point: "Fixed fines are outrageously regressive and unfair. A typical ticket for a moving violation might be $150. Parking in a handicapped space is $250. That represents less than one hour of work for an attorney or accountant -- about one minute for a CEO making $20M per year. Not much of a deterrent. For someone working a minimum wage (or close to minimum wage) job -- say $8 per hour -- that $150 ticket is about half of a weekly paycheck. That's before taxes. After taxes, that $150 is the majority of their take-home pay for the week.")

6. "Tax breaks" as subsidies. Some critics question the validity of ever transferring taxpayers' money to the bottom line of for-profit corporations, regardless of the purpose. They'd prefer to let the "free market" work its will with entrepreneurs. (For one reason why, see "State of Iowa Agency Reports on Tax Credits," December 14, 2009 (a pdf file); Lee Rood, "Other Tax Credits Raised Red Flags," Des Moines Register, December 13, 2009; Lee Rood, "IDED Moves to Recover Funding from 4 Firms," Des Moines Register, December 13, 2009.) Advocates cite the benefit in job creation, and increased revenues for the state, from such programs. Regardless of the merits of such arguments, the fact remains that the only difference between an out-and-out subsidy and a "tax break" is transparency; which is why some critics say, if you're going to give my tax money to for-profit enterprises at least appropriate it, do it above the table where we can see the money and see who's getting it. Don't hide it in the tax code. Whether you give me $100, or tell me I don't have to pay $100 I thought I would, it's $100 in my pocket that wouldn't otherwise have been there.

7. Tying pay to benefit. A part of the rationale for "public" K-12 schools, paid for by everyone in the community, is that everyone benefits from living in a community where everyone else has at least a K-12 education: less crime, a more skilled workforce, more interesting conversations with neighbors, and better quality elected officials. (A similar rationale could be, but has not been successfully, used for "universal, single-payer" health care.) But there are also the "user fees," mentioned above, in which all, or most, of the cost of a public program is paid for by those who are its primary beneficiaries. For example, student tuition at the Regents' universities could be thought of as a partial "user fee," representing perhaps something on the order of one-half the actual cost per student of providing this "public university" education (as distinguished from the virtual free ride for those whose children attend K-12 public schools). It is not always clear which public programs should be paid for by users, and which by the general taxpaying public (because, presumably, there is a general public benefit, as with public K-12 schools) -- and if users should pay what proportion of the cost they should pay.

8. Highway funds and the Highway Patrol. Which brings us to the Governor's proposed use of highway funds for Highway Patrol payroll. The Register's sidebar indicates the sources of the highway fund include "Fuel taxes, motor vehicle registration fees, fees for new registration (formerly the use tax), underground tank fees, title fees, trailer fees, special plate fees, driver's license fees, Underground Storage Tank Fund, motorcycle education, other vehicle taxes and fees, other miscellaneous and interest." It is, in short, an almost perfect example of a "user-fee" based funding system for a government program, that is, road building and maintenance. If you don't own a road worthy vehicle you don't pay registration fees or gasoline taxes. If you do, you do -- and the more you drive, the more gasoline you buy, and the more gas taxes you pay. All drivers benefit from the roads, all contribute to their need for repair, and all pay their proportionate share (assuming the big trucks and heavy equipment, which cause more damage, are paying more than just the gas tax).

That being the case, it is not irrational to argue that the Highway Patrol, the job of which is, as the name suggests, to patrol the highways, should be paid for by the same users who are paying for the highways themselves.

[December 14 modification. Since writing this, "factsgetintheway" posted the following comment on the Register's online version of its story:

"The Iowa State Patrol is the state's law enforcement agency, and their functions extend way beyond traffic/motor vehicle enforcement. The Iowa Constitution clearly did not intend for functions outside of highways to be supported by the RUTF. At a minimum, those activities should be supported by the General Fund. Some of those duties & special ISP units include: assistance during prison riots & labor disputes; emergency assistance and law enforcement during disasters; an airwing used to fly emergency blood and tissue match relays, search for lost persons and other victims; Amber Alert program; canine unit for narcotics detection and criminal apprehension; Chaplains Program; executive protection for the governor and first family, Lt. Gov.; State Capitol security; safety education; and special enforcement team for intercepting illegal drugs.

"Many of these new duties have come about since 1975 when their name was changed from Iowa Highway Patrol to Iowa State Patrol.

12/13/2009 4:22:25 PM"

Assuming all of the content of this comment is true (and I have no reason to believe it's not), while it would not affect the analytical model I've laid out, it certainly would affect the result. I would agree that "at a minimum," as the commenter suggests, to the extent that the other-than-highway-related functions of the ISP can be separated out, there is not a "user fee" rationale for having them paid for out of the Highway Fund. There may, of course, be some other rationale for doing so, just not a "user fee" basis.]

That is not to say there are no contrary arguments, that anyone gives a darn about rational analysis, or that the ultimate decision will not be dictated by campaign contributions and raw political power at its worst.

But for what it is worth, this is at least a way to bring a little more rational analysis, and a little less emotion, to the resolution of a very tough budget debate.
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For the recent blog entries you may be looking for, go to "There Is No War in Afghanistan," December 4, 2009, and go to the bottom of that blog entry.
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* Why do I put this blog ID at the top of the entry, when you know full well what blog you're reading? Because there are a number of Internet sites that, for whatever reason, simply take the blog entries of others and reproduce them as their own without crediting the source. I don't mind the flattering attention, but would appreciate acknowledgment as the source, even if I have to embed it myself. -- Nicholas Johnson
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UI Held Hostage Day 488 - Regents Meeting; Hines on Law

May 24, 2007, 7:25 a.m.; revised 9:10 p.m. (addition of definition and discussion of "meeting" under Iowa open meetings law)

Yesterday's blog entry, posted at 11:55 a.m. [Nicholas Johnson, "UI Held Hostage Day 487 - Governance Regents Number One Priority," May 22, 2007], suggested that if the Board of Regents was serious about having a UI president in place by July 1 it might want to consider time for interviews of finalists and its own deliberations sometime in June, rather than devoting its June 13th meeting to a strategic planning discussion, as announced.

At 1:58 p.m. yesterday afternoon, Board Executive Director and COO Gary Stenke emailed Board members that he thought that a good idea; that is, he started the process of finding out the free time in their schedules the weeks of June 11 and 18. See, Brian Morelli, "Regents Look for Meeting Window," Iowa City Press-Citizen, May 24, 2007, p. 3A.

Meanwhile, the secrecy about the secrecy in the Regents and Search Committee I deliberations was broken in the Press-Citizen's suit against the Regents. Former UI Faculty Senate President Shelly Kurtz revealed that the closed session deliberations went well beyond consideration of candidates and included discussions of process (namely, the confidentiality agreements required by the Regents and rejected by the faculty). Brian Morelli, "Official: Interrogatories 'incomplete;' Officials: Regents did not record portions of Nov. meeting," Iowa City Press-Citizen, May 24, 2007, p. 3A. If true, this would be a clear violation of the Iowa open meetings law. That is, when otherwise open meetings are closed, the reason for the closure must be stated in open meeting, it must be one of the reasons expressly permitted by the law, and nothing else may be done during that closed session.

However, all that turns on the subject of former law school dean, Professor Bill Hines' analysis of the open meetings law. It has been published in the Des Moines Register, the Iowa City Press-Citizen, and, this morning, in The Gazette: N. William Hines, "Why UI's Search Meetings Not Open," The Gazette, May 24, 2007, p. 7A. (The links to the Register and Press-Citizen, above, will let you read his analysis.)

Most of the discussion of this subject has assumed the open meetings law applies to UI Presidential Search Committee I and II, and has then focused on whether what those Committees have done complies with the terms of the law.

What Dean Hines is arguing is that whether the terms of the law have been complied with or not is simply irrelevant. Why? Because the Search Committees are not even subject to the law -- or, otherwise put, that a careful reading of Iowa Supreme Court opinions in the Donohue and the 2005 Vision Iowa cases could reasonably lead one to a prediction that the Iowa Supreme Court would likely find that the Search Committees are not covered by the law.

Ultimately, of course, the meaning of any law is what the courts say it is. (As U.S. Supreme Court Justice Robert H. Jackson once said, "We are not final because we are infallible, but we are infallible only because we are final.") A legislature may pass a law regarding how "yellow" and "red" are to be treated, and a court, confronted with "green," may decide that green is "yellow" because by "yellow" the legislature simply meant any color "substantially possessed of qualities of 'yellow.'"

So, rather than get into that kind of analysis, I'll simply set forth here, as a service to lawyers and generally interested persons alike, Section 21.2 of the Iowa Code.

The definitions sections are central to any "statutory interpretation." In this case, for example, to be subject to the requirements of "open meetings" the Search Committees must meet the standards of two statutory definitions: they must be a "governmental body" and the activities in which they engage must constitute a "meeting."

Here, first, is the Iowa Code (2007) defintion of a "governmental body" [with my comments, in brackets, following each category]:

21.2 Definitions.

As used in this chapter:

1. "Governmental body" means:

a. A board, council, commission or other governing body expressly created by the statutes of this state or by executive order. [This presumably would include the Board of Regents (which is "expressly created by" statute), but not its Search Committees, which are not.]

b. A board, council, commission, or other governing body of a political subdivision or tax-supported district in this state. [Not applicable; political subdivisions are counties and cities.]

c. A multimembered body formally and directly created by one or more boards, councils, commissions, or other governing bodies subject to paragraphs "a" and "b" of this subsection. [This could be argued to include a body -- such as the Search Committees -- created by the Board of Regents (a "governing body subject to paragraph "a").]

d. Those multimembered bodies to which the state board of regents or a president of a university has delegated the responsibility for the management and control of the intercollegiate athletic programs at the state universities. [This can be argued to be evidence that (a) the Legislature deliberately omitted Search Committees, or (b) its willingness to include at least this one example of such committees, and thus, by extension, others as well.]

e. An advisory board, advisory commission, or task force created by the governor or the general assembly to develop and make recommendations on public policy issues. [Not applicable; Search Committees are not created by the Governor or General Assembly.]

f. A nonprofit corporation other than a fair conducting a fair event as provided in chapter 174, whose facilities or indebtedness are supported in whole or in part with property tax revenue and which is licensed to conduct pari-mutuel wagering pursuant to chapter 99D or a nonprofit corporation which is a successor to the nonprofit corporation which built the facility. [Not applicable.]

g. A nonprofit corporation licensed to conduct gambling games pursuant to chapter 99F. [Not applicable -- notwithstanding the UI athletic program's reliance on gambling industry partnerships and revenues.]

h. An advisory board, advisory commission, advisory committee, task force, or other body created by statute or executive order of this state or created by an executive order of a political subdivision of this state to develop and make recommendations on public policy issues. [Not applicable.]

The second standard, or definition, that the Search Committees must meet in order to be subject to the Iowa open meetings law is that the activities in which they engage constitute a "meeting." Here is the Iowa Code (2007) definition of "meeting":

21.2 Definitions.

As used in this chapter:

* * *

2. "Meeting" means a gathering in person or by electronic means, formal or informal, of a majority of the members of a governmental body where there is deliberation or action upon any matter within the scope of the governmental body's policy-making duties. Meetings shall not include a gathering of members of a governmental body for purely ministerial or social purposes when there is no discussion of policy or no intent to avoid the purposes of this chapter."

In fact, in the case on which Dean Hines relies, Mason v. Vision Iowa Board, July 15, 2005, although the Iowa District Court decided that a committee of Board members did not constitute a "governmental body," the Iowa Supreme Court expressly declined to address that issue, focusing on the "meeting" definition instead ("we need not determine whether the committee is a governmental body because we agree with the district court that the committee’s meetings did not fall within the statutory definition of a 'meeting' . . .").

Without getting into an analysis of the court's opinion (which is available in full from the link immediately above), the relevant language from the definition would be "deliberation or action upon any matter within the scope of the governmental body's policy-making duties."

Assuming the Search Committee does meet the definition of a "governmental body," does what it is engaged in doing constitute a statutory "meeting"? Is the winnowing of a pool of 100 or more potential UI presidents down to a group of four to be passed along to the Regents a task fairly characterized as a "policy-making duty"? (But, then, how relevant is that, given that there are many functions performed by governmental bodies, that all would concede must be in open meeting, that are not what one would normally characterize as "policy-making"?) And, even if it is "policy-making," is it a mere "advisory committee" role; is it a mere "recommendation" to the Board (as distinguished from "action") -- or is it the performance of a Regents' task, the making of a "decision" (at least as to those four)?

Now you figure it out. What do you think? Everyone can play this game.
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UICCU and "Optiva"
The UICCU-Optiva story is essentially behind us. There may be occasional additions "for the record," but for the most part the last major entry, with links to the prior material from October 2006 through March 2007, is "UICCU and 'Optiva'" in Nicholas Johnson, "UI Held Hostage Day 406 - March 3 - Optiva," March 3, 2007. Since then there have been two major additions: Nicholas Johnson, "Open Letter to UICCU Board" in "UI Held Hostage Day 423 - March 20 - UICCU," March 20, 2007, and "'Open Letter': Confirmation from World Council of Credit Unions" in "UI Held Hostage Day 424 - March 21 UICCU," March 21, 2007.

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[Note: If you're new to this blog, and interested in the whole UI President Search story . . .

These blog entries begin with Nicholas Johnson, "UI President Search I," November 18, 2006.

Wondering where the "UI Held Hostage" came from? Click here. (As of January 25 the count has run from January 21, 2006, rather than last November.)

For any given entry, links to the prior 10 will be found in the left-most column. Going directly to FromDC2Iowa.Blogspot.com will take you to the latest. Each contains links to the full text of virtually all known media stories and commentary, including mine, since the last blog entry. Together they represent what The Chronicle of Higher Education has called "one of the most comprehensive analyses of the controversy." The last time there was an entry containing the summary of prior entries' commentary (with the heading "This Blog's Focus on Regents' Presidential Search") is Nicholas Johnson, "UI President Search XIII -- Last Week," December 11, 2006.

My early proposed solution to the conflict is provided in Nicholas Johnson, "UI President Search VII: The Answer," November 26, 2006.

Searching: the fullest collection of basic documents related to the search is contained in Nicholas Johnson, "UI President Search - Dec. 21-25," December 21, 2006 (and updated thereafter), at the bottom of that blog entry under "References." A Blog Index of entries on all subjects since June 2006 is also available. And note that if you know (or can guess at) a word to search on, the "Blogger" bar near the top of your browser has a blank, followed by "SEARCH THIS BLOG," that enables you to search all entries in this Blog since June 2006.]

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Media Stories and Commentary
See above.
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UI Held Hostage Day 486 - Secrecy Issues & Other UI Items

May 22, 2007, 7:30 a.m.

UI President Search Updates and Other UI Items
ProLog For presidential candidates and others interested in what's going on at the University of Iowa, I have earlier referred you to our distinguished Executive Vice President and Provost Michael J. Hogan's Web site. To this he has now added his personal blog, creatively christened "ProLog." It will be well worth a regular look, as he says, "It’s my hope to update things here every few days."

Abolish Presidency? Had the Regents simply left Provost Hogan in charge after President David Skorton's departure to Cornell University not only would they have provided the smoothest transition in the University's history, Hogan would soon be into his second year. Yesterday morning's Press-Citizen carries a letter to the editor that suggests something along this line. Julie Spencer, "Let's Just Get Rid of President's Position," Iowa City Press-Citizen, May 21, 2007, p. 11A ("perhaps the best remedy to this ongoing debacle is do away with the president's position altogther").

Pounding Nails Mary Gilchrist, former director of the UI Hygienic Lab, was -- I think it accurate to say -- "fired." Whether her advocacy for the lab was "insubordination" or "whistle blowing" is still in litigation. Whatever a judge may decide, the Massachusetts State Laboratory decided it was exactly the kind of leadership they wanted. She's gone; they've got her now. Hieu Pham, "Gilchrist Lands Job at Mass. Lab," Iowa City Press-Citizen, May 21, 2007, p. 1A. (Hieu Pham quotes Gilchrist as saying, "I think one has to do the right thing, and the consequences cannot be the major factor that determines what one does.")

"Bob," a former employee of Chrysler, said of his former working environment: "if you speak up about an issue, you are considered the nail to be pounded down, not an angel spreading the 'quality word.'" It's a common institutional observation -- and complaint. On May 3 I wrote that "Skorton is the former UI president who was run off by lesser mortals . . .." Nicholas Johnson, "UI Held Hostage Day 467 - UI's Stealth President," May 3, 2007. It produced the following comment to that blog entry from "Obadiah Plainman": "As an attorney, one would think you would know better than to use heresay [sic] to prove a case." It was a fair criticism. (Though I had some credible sources, I didn't feel I had permission to use them). I should have said, "some feel," or "it is rumored that."

But whatever the cause, whatever the characterization, in my opinion the UI is the poorer for the loss of Gilchrist as well as Skorton.

Does Iowa's Open Meetings Apply to Presidential Searches? Last Sunday, upon my return to the blogosphere, I wrote, "I haven't even had time to go through the last ten days' newspapers, . . .. Meanwhile, here are some random items." See Nicholas Johnson, "UI Held Hostage Day 484 - May 20 - Back to Blogosphere," May 20, 2007.

"John Barleykorn" responded with the following comment: "What, no response to your former boss saying the Board of Regents isn't bound by the open meetings law?" It was a reference to N. William Hines, "Law Doesn't Support Charges," Iowa City Press-Citizen, May 14, 2007, p. 11A ("Before the open meetings law zealots storm the university with torches and pitchforks, they and the media that hypes their concerns would do well to real carefully the Iowa law they so righteously champion . . ..")

The only reason I didn't mention this Sunday was because I hadn't yet seen it.

As I did write on Sunday:

The position of Search Committee II is "we will only comply with Iowa's open meetings law if our candidates are willing to be law abiding -- but a few of what we think are our best candidates are scofflaws and we feel we need to accommodate them." I addressed this position before I took my blog break. My position was, in effect, "if you want to violate the law at least make a stab at coming up with a legal argument as to why all of its provisions are inapplicable to what you're doing." See Nicholas Johnson, "But Before I Do . . ." in "UI Held Hostage Day 472 - Beagle's Landing; More Secrecy," May 8, 2007.

What Search Committee II decided it would do -- over the objections of Iowa's governor and the President of the Board of Regents -- was that it would comply with a part of the notice provisions, but not all: they would reveal when they would be interviewing candidates but not where.

Bill Hines is a distinguished legal scholar and teacher, one of the longest serving law school deans in American history, and one who was selected by his colleagues as President of the American Association of Law Schools. He's also a personal friend, has been a basketball player of some considerable skill, and continues to be able to find the most illusive fish in Minnesota. In short, his analysis of the Iowa Open Meetings Law is somewhere between persuasive and entitled to great respect.

Where I totally agree with him is that if Search Committee II wants to take the position that it is somehow exempt from open meetings requirements its legal argument needs to be structured as he has tried to present it. Thankfully, he does not even try to make a case for Search Committee II selectively picking from the act the provisions with which it will (date and time of meeting) and will not (where the meeting is to take place) comply -- as the Committee did. He just flat out argues that the act is not applicable to Search Committee II at all.

I also agree that the Supreme Court of Iowa might (but not, as he argues, "would surely") buy his interpretation.

Finally, I agree with his unstated assertion -- as Professor Arthur Bonfield and I have argued elsewhere -- that the Legislature needs to revisit many of the provisions of the Iowa Open Meetings Law, including those affecting this search.

Where I respectfully disagree -- as I have repeatedly argued in these blog entries -- is that the language of the act can only be interpreted in the way he suggests. I analyze it differently. I believe that Search Committee II is covered by its terms. All of them.

But arguing about such interpretations is what lawyers (and law professors) do. (And although it is somewhere between difficult and impossible for others -- including our spouses -- to comprehend, at its best it is our bizarre way of bonding and strengthening personal respect and affection.)

Clearly, his position is not universally held. There are lots of us "open meetings law zealots" out here.

On the same page with Dean Hines' op ed is Duncan Stewart, "UI Search Candidates' Names Should be Public," Iowa City Press-Citizen, May 14, 2007, p. 11A ("Anyone who wants to lead Iowa's largest university . . . should have the backbone and intellectual standing to make their application public").

And clearly Harold Hammond, an emeritus professor in the department of oral pathology, radiology and medicine, and his lawyer, Iowa City attorney Gregg Geerdes, do not buy the Dean's legal analysis. "Hammond is asking the court to void any and all actions taken by the search committee, stop the defendants from violating the laws again and compensation for attorney's fees." Kathryn Fiegen, "Emeritus Professor Sues Regents, Search Committee," Iowa City Press-Citizen, May 19, 2007, p. 1A.

Secrecy Issues: What's Really At Stake? OK, let's put the legal issues aside for now, and try to understand (a) what are the legitimate issues of concern to presidential candidates regarding secrecy, and (b) if and how Search Committee II's approach is responsive to those concerns.

There seems, to me, to be an internal inconsistency in the Committee's logic and process. I'm the first to acknowledge that may well be because I just don't know -- or understand -- what they've done and why.

During their interview process secrecy has been a paramount concern -- up to and including a willingness to violate the law (in the view of some lawyers, journalists, the Governor of Iowa and the President of the Board of Regents). But now, during the interim between their interviews (May 13 and 14) and passing four names on to the Board of Regents (sometime in June), "In a unanimous decision, the group voted to schedule campus visits for 'several candidates' before forwarding a final slate to the Iowa state Board of Regents." (Of course, the Committee hasn't yet figured out how that is going to work. "The search committee also decided to form a subcommittee to devise ways the on-campus interviews could happen . . ..") Kathryn Fiegen, "UI Finalists Will Interview on Campus; Search Group Decision Unanimous," Iowa City Press-Citizen, May 19, 2007, p. A1.

Now I'm not trying to be cute or critical. I'm really just trying to understand what this is about.

Fiegen quotes one member of the Committee as saying, "An abbreviated process may be necessary to keep some candidates in the pool." An earlier story reported, "The committee says exposure would cause 'needless and irreparable harm,' . . . [And, from another Committee member:] being a known candidate can jeopardize someone's current job. 'Outside academia, people have a hard time understanding,' . . .." Brian Morelli, "Search Committee Proceeds With Plans; Group Enters Closed Session in Undisclosed Location," Iowa City Press-Citizen, May 12, 2007, p. 3A.

Now there is some question as to whether "being a known candidate" really does cause a candidate harm. Indeed, I am informed that some of these candidates, engaging in secret interviews, are the very ones leaking the fact they are under consideration -- precisely because it enhances their reputation in their current position, and may even be the basis for a pay raise.

And given what appears to be most Americans willingness to be moved at any time for an increase in pay, prestige and power, can't it be reasonably assumed that almost every university president and provost is continuously searching for new opportunities? That being the reality, what's the big deal about acknowledging it?

But let's put all that aside as well, and assume for the moment that to be known as a potential president of the University of Iowa is something no one would ever want known because of the "irreparable harm" to their reputation -- something close, I gather, to the legal standard for "defamation."

Accepting that, why does the need for secrecy only extend to their being interviewed by Search Committee II? Why is it not equally applicable to their showing up on campus? Assuming that we are not going to follow the advice from The Gazette that they all show up with pillow cases over their heads (the paper offered to supply them) [Editorial, "The Pillowcase Option," The Gazette, May 9, 2007, p. 4A] won't their identity then be known -- back home as well as in Iowa City?

Is this just a problem in risk assessment, and benefit-cost analysis, for these gamblers playing the odds? That is, having one's identity revealed at any stage is a cause of "irreparable harm," but the odds of actually being chosen improve as the process progresses. When you're one of 100 or more potential candidates the odds of being selected are slight, and the harm is substantial. When you're one of four finalists, the harm is just as great, but the odds of you actually being selected are much better; thus, the reality of significant harm (from being known to be a candidate) is outweighed by the relatively good odds of receiving the even greater benefit of becoming the UI president.

(Dean Hines' interpretation of the law may be found to be correct. Or the Legislature may revise the law to exclude universities' presidential searches from open meetings requirements. It may be it will be decided that the public and media have absolutely no right to know about this process. That's within the power of our democratically elected representatives to decide. But if we do have a need and right to know what is going on, at what stage in the process does that right come into being? Are the identities of the 100 or so candidates who have been rejected by Search Committee II of no relevance to our understanding the process?

Recall what the 19th Century New York City political Boss William Tweed is credited with having said, “I don’t care who does the electing just so long as I do the nominating.” By the time Search Committee II has done the "nominating" -- whether of those who come for campus visits, or the four they forward on to the Board of Regents -- it leaves relatively few choices for "who does the electing."

Our national parties' presidential candidates used to be selected as our UI president is being selected. A "smoked-filled, back room of Party leaders" would do the nominating. The voters' choices were limited to two candidates: one Republican and one Democrat. Today's caucuses and primaries open the nominating as well as the election process to the public and media. Of course, there may be more reason for secrecy surrounding the selection of the President of the University of Iowa than for the President of the United States.

To reveal only the names of some list of "finalists" may be a pragmatic compromise, all considered. But it is just that: a compromise. It is not -- to me, at this time -- a reasoned position.)

And the Committee is saying that "several candidates" will visit the campus -- following which four names will be submitted to the Board. So are we talking numbers here? It would be devastating to an educational administrator were it to become known that he or she was among the "less than 20" interviewed at a secret location, but it is somehow perfectly OK to be one of, say, seven candidates visiting the campus?

And what's this "abbreviated process" about -- a reference to campus visits that are compressed into a relatively shorter time period (say, three or four days rather than a couple of weeks)? There's no "irreparable harm" to having it known that you were a part of an "abbreviated process" at Iowa, but if the University takes its time, and does a little more thorough job of getting to know a number of finalists (and they the University), somehow your career is ruined? Isn't this like a "little bit pregnant"? It seems to me you're either a candidate or you're not. Unless we really are going to take The Gazette's pillow case advice, or limit the candidates' visits to a helicopter fly-over of Iowa City, it seems to me it's going to be very difficult to keep a veil of secrecy over the identity of those candidates visiting the campus.

Oh, well, there are a great many things in this life I don't understand, and maybe I should just chalk this one up as one more.
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UICCU and "Optiva"
The UICCU-Optiva story is essentially behind us. There may be occasional additions "for the record," but for the most part the last major entry, with links to the prior material from October 2006 through March 2007, is "UICCU and 'Optiva'" in Nicholas Johnson, "UI Held Hostage Day 406 - March 3 - Optiva," March 3, 2007. Since then there have been two major additions: Nicholas Johnson, "Open Letter to UICCU Board" in "UI Held Hostage Day 423 - March 20 - UICCU," March 20, 2007, and "'Open Letter': Confirmation from World Council of Credit Unions" in "UI Held Hostage Day 424 - March 21 UICCU," March 21, 2007.

# # #
[Note: If you're new to this blog, and interested in the whole UI President Search story . . .

These blog entries begin with Nicholas Johnson, "UI President Search I," November 18, 2006.

Wondering where the "UI Held Hostage" came from? Click here. (As of January 25 the count has run from January 21, 2006, rather than last November.)

For any given entry, links to the prior 10 will be found in the left-most column. Going directly to FromDC2Iowa.Blogspot.com will take you to the latest. Each contains links to the full text of virtually all known media stories and commentary, including mine, since the last blog entry. Together they represent what The Chronicle of Higher Education has called "one of the most comprehensive analyses of the controversy." The last time there was an entry containing the summary of prior entries' commentary (with the heading "This Blog's Focus on Regents' Presidential Search") is Nicholas Johnson, "UI President Search XIII -- Last Week," December 11, 2006.

My early proposed solution to the conflict is provided in Nicholas Johnson, "UI President Search VII: The Answer," November 26, 2006.

Searching: the fullest collection of basic documents related to the search is contained in Nicholas Johnson, "UI President Search - Dec. 21-25," December 21, 2006 (and updated thereafter), at the bottom of that blog entry under "References." A Blog Index of entries on all subjects since June 2006 is also available. And note that if you know (or can guess at) a word to search on, the "Blogger" bar near the top of your browser has a blank, followed by "SEARCH THIS BLOG," that enables you to search all entries in this Blog since June 2006.]

# # #
Media Stories and Commentary
See above.
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Technorati tags: football, athletics, academics, high school, college, University of Iowa, education, K-12, leadership, university president, Michael Gartner, Iowa Board of Regents, UI president search, Nicholas Johnson, FromDC2Iowa
_______________
Nicholas Johnson's Main Web Site http://www.nicholasjohnson.org/
Nicholas Johnson's Iowa Rain Forest ("Earthpark") Web Site
Nicholas Johnson's Blog, FromDC2Iowa
Nicholas Johnson's Blog Index
_______________

UI Held Hostage Day 484 - May 20 - Back to Blogosphere

May 20, 2007, 11:45 a.m.

I haven't even had time to go through the last ten days' newspapers, let alone reflect on what happened during that time. I'll try to spread some of that out during the next week or so. Meanwhile, here are some random items.

UI's Stealth Presidential Search Continues

If you are one of the presidential candidates who is tracking this blog, hopefully you are better informed than I about where things in general -- and you in particular -- stand at the moment. But, if not, it looks like, from the stories of May 12, that interviews were held on May 13 and 14 (at an undisclosed location) with those ("less than 20") characterized as finalists as of Search Committee II's Friday meeting on May 11. So, I guess if you don't recall being interviewed last weekend you might want to give Dean Dave Johnsen a call and find out why not.

The on-again-off-again debate about transparency in Search II has continued. The position of Search Committee II is "we will only comply with Iowa's open meetings law if our candidates are willing to be law abiding -- but a few of what we think are our best candidates are scofflaws and we feel we need to accommodate them." I addressed this position before I took my blog break. My position was, in effect, "if you want to violate the law at least make a stab at coming up with a legal argument as to why all of its provisions are inapplicable to what you're doing." See Nicholas Johnson, "But Before I Do . . ." in "UI Held Hostage Day 472 - Beagle's Landing; More Secrecy," May 8, 2007.

What Search Committee II decided it would do -- over the objections of Iowa's governor and the President of the Board of Regents -- was that it would comply with a part of the notice provisions, but not all: they would reveal when they would be interviewing candidates but not where. As anyone, especially a group of academics, ought to know, the coordinates on any space-time event require both (a) a date and time (according to some agreed upon calendar and time zone (UTC or CDT)), and (b) a place (which, if on Earth, can be either "address" or latitude and longitude).

This is true whether you're inviting someone to an open house, an open election, or an open meeting. See Editorial, "Call for open meetings in UI search, governor; Don't follow attorney general's example," Des Moines Register, May 9, 2007; and Danny Valentine, "U of I to keep interview locations secret; Members of the presidential search committee say they are concerned about protecting candidates' identities," Des Moines Register, May 12, 2007.

As of yesterday, the Committee had decided to have some on-campus interviews of finalists, but wasn't yet sure exactly what that would mean -- in terms of how long they will be here, or who will know, let alone have an opportunity to meet and question them. Hey, folks, this is day 484; June 1 is just around the corner, and July 1 (by which the Regents are to have selected the ultimate winner in this marathon) is not far behind. We really need some decisions about this process (as we have needed them since last January). Kathryn Fiegen, "UI finalists will interview on campus; Search group decision unanimous," Iowa City Press-Citizen, May 19, 2007, p. 1A.

Meanwhile, Ms. Fiegen also reported on page one: "Emeritus Professor Sues Regents, Search Committee," Iowa City Press-Citizen, May 19, 2007, p. 1A (over their violations of Iowa's open meetings law).

There was a significant clause in a story in The Daily Iowan's last issue of the academic year.

The story involved Regents' President Michael Gartner's statement that Search Committee II ought to comply with Iowa's open meetings law. There are those who've belittled what they characterize as a convenient conversion by Gartner from a practice of secrecy to a preaching of openness. I say give the guy some credit: for creating the policy that emails among Regents will be posted to the Board's Web page, and for this statement solidly supporting compliance with Iowa's law. (My position is that if the law needs to be changed, as may be the case, that's something to be done by the Legislature, not by the boards and agencies on a case-by-case basis as they find it convenient to do so.)

But far more significant than any of that, in my view, is the following sentence from Matt Nelson's story in The Daily Iowan: "Gartner asked the committee to reconsider its decision to hold the meetings at an undisclosed site based on the history of the presidential search but emphasized that he spoke only for himself and not the entire board." (emphasis supplied) Matt Nelson, "Panel to secretly interview UI president semifinalists," The Daily Iowan, May 11, 2007.

This is, to my knowledge, the first time that President Gartner has ever acknowledged the very basic governance principle that only "the Board" speaks for "the Board" and that individual Board members -- including the President of the Board of Regents -- have a governance obligation to make very clear when they are speaking for the Board and when they are just speaking in their individual capacity.

It could have just been an off-hand comment, but I am hoping that it may be a first step toward the establishment of a full-blown set of governance standards regarding: (1) measurable goals (what John Carver calls "ends policies"), (2) relationships between the Board and Regents institutions' presidents and faculties (taking into account the academy's tradition of "shared governance" -- and the need to provide an operational definition of just what that means), (3) what Carver calls "executive limitations," and (4) the Board members' own relationships, and self-imposed restrictions on their own behavior.

See Nicholas Johnson, "An Open Letter to Regents on 'Governance,'" in "UI Held Hostage Day 451 - Open Letter to Regents," April 17, 2007.

But before you get too hopeful about this, read State 29, "This Ought to Make Nicholas Johnson Laugh," May 18, 2007. It did. (The Board of Regents has apparently hired a public relations firm. There may be more on this later.) But it was bitter sweet because of its implications for governance: Apparently Regent Bob Downer was not even informed of this "Board of Regents decision," let alone given an opportunity to participate in it.

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UICCU and "Optiva"
The UICCU-Optiva story is essentially behind us. There may be occasional additions "for the record," but for the most part the last major entry, with links to the prior material from October 2006 through March 2007, is "UICCU and 'Optiva'" in Nicholas Johnson, "UI Held Hostage Day 406 - March 3 - Optiva," March 3, 2007. Since then there have been two major additions: Nicholas Johnson, "Open Letter to UICCU Board" in "UI Held Hostage Day 423 - March 20 - UICCU," March 20, 2007, and "'Open Letter': Confirmation from World Council of Credit Unions" in "UI Held Hostage Day 424 - March 21 UICCU," March 21, 2007.

# # #
[Note: If you're new to this blog, and interested in the whole UI President Search story . . .

These blog entries begin with Nicholas Johnson, "UI President Search I," November 18, 2006.

Wondering where the "UI Held Hostage" came from? Click here. (As of January 25 the count has run from January 21, 2006, rather than last November.)

For any given entry, links to the prior 10 will be found in the left-most column. Going directly to FromDC2Iowa.Blogspot.com will take you to the latest. Each contains links to the full text of virtually all known media stories and commentary, including mine, since the last blog entry. Together they represent what The Chronicle of Higher Education has called "one of the most comprehensive analyses of the controversy." The last time there was an entry containing the summary of prior entries' commentary (with the heading "This Blog's Focus on Regents' Presidential Search") is Nicholas Johnson, "UI President Search XIII -- Last Week," December 11, 2006.

My early proposed solution to the conflict is provided in Nicholas Johnson, "UI President Search VII: The Answer," November 26, 2006.

Searching: the fullest collection of basic documents related to the search is contained in Nicholas Johnson, "UI President Search - Dec. 21-25," December 21, 2006 (and updated thereafter), at the bottom of that blog entry under "References." A Blog Index of entries on all subjects since June 2006 is also available. And note that if you know (or can guess at) a word to search on, the "Blogger" bar near the top of your browser has a blank, followed by "SEARCH THIS BLOG," that enables you to search all entries in this Blog since June 2006.]

# # #
Media Stories and Commentary
See above.
_______________
Technorati tags: football, athletics, academics, high school, college, University of Iowa, education, K-12, leadership, university president, Michael Gartner, Iowa Board of Regents, UI president search, Nicholas Johnson, FromDC2Iowa
_______________
Nicholas Johnson's Main Web Site http://www.nicholasjohnson.org/
Nicholas Johnson's Iowa Rain Forest ("Earthpark") Web Site
Nicholas Johnson's Blog, FromDC2Iowa
Nicholas Johnson's Blog Index
_______________