Archive for the ‘Issue Backgrounders’ Category

Curing Federal Dysfunction by Constitutional Amendment: A Primer

Posted on: December 4th, 2014 by admin No Comments

IB-B-2014 (November 2014)
Author: Robert G. Natelson

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The Constitution gives citizens the direct means to rein in federal power and cure federal dysfunction through a “Convention for proposing Amendments.” This Issue Backgrounder explains the reasons why the Founders created the process and how it works. The Backgrounder also corrects common misunderstandings and explains how citizens may participate.

Senate Bill 11-200: The Colorado Health Benefit Exchange

Posted on: March 1st, 2011 by admin 1 Comment

IB-2011-A (March 2011)
Author: Linda Gorman

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Bill Context:

The federal Patient Protection and Affordable Care Act of 2010 (ObamaCare) encourages each state to set up an American Health Benefits Exchange. States received $1 million federal grants to work on exchange development. The exchanges will broker individual and small group plans offered by insurers and health benefit plans. They do not buy or develop health insurance and must be self-supporting by January 1, 2015.

The law says that exchanges may become self-supporting by charging “assessments or user fees to participating health insurance issuers, or to otherwise generate funding, to support its operations.” The model, and the only operating exchange of any significant size, is the Massachusetts Connector Authority, which cost $30 million to operate in 2009.

By January 1, 2013, the Secretary of Health and Human Services must determine whether a state will have an operational exchange by January 1, 2014. If a state exchange will not be operational, the federal government will operate its own exchange in that state either directly or through agreement with a not-forprofit entity. Federal law specifically says that the operation of a federal exchange has no effect on state regulatory authority or law.

A state’s ability to tailor exchange products to its needs is limited. State exchanges must comply with detailed federal regulations. Only qualified health plans, as defined by the new law, may be offered, and exchanges must meet specific reporting, structural, and contracting requirements, produce required ratings, and provide internet and telephone access. The Secretary of Health and Human Services has yet to issue either regulations giving specific standards for state exchanges or a model to provide guidance.

Several governors have determined that their citizens will be better off without a
state exchange.

Debt Detective (IB-2009-E)

Posted on: May 1st, 2009 by admin No Comments

IB-2009-E (May 2009)
Author: Luke Jackson

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There are many new initiatives in 2009 that attempt to bring transparency and openness to government. The Independence Institute decided to see how easy it would be to determine how much debt has been incurred by local governments (cities, counties, etc.) in Colorado. After all, government debt is really our debt. It’s taxpayers’ debt. Our research found that information on local government debt IS available to the public … on two conditions. First, citizens must have Sherlock Holmes-like instincts. Information about local debt can be found, but plan on digging for it. And, second, the results of your search may yield information that is considerably outdated.

To have transparency and openness, information must be easily accessible and complete. Within the state government of Colorado, the Department of Local Affairs (DOLA) compiles data on debt. However, the data is incomplete, poorly publicized, and difficult to use. DOLA should employ interactive internet communication to make information on local government debt more up-to-date and more accessible to Colorado taxpayers.

DOLA’s website does provide some useful information about the debt of Colorado cities and counties. In fact, this is the only place we located where one can find centralized data of local government debt online. The Department prepares a financial compendium (abstract) in which data from financial statements of each of Colorado’s municipalities and counties is summarized into a single document. The compendium breaks down the financials for each municipality and county, providing details on revenues and expenditures. And, under the expenditure category, there is information on debt. However, these debt figures are considerably outdated. As of May 2009, the 2004 financial compendium was the most recent compendium available on the DOLA website.

Is One Government for Each Person Enough in Colorado?

Posted on: August 3rd, 2007 by admin No Comments

IB-2007-F (August 2007)
Author: Justin Longo

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This Issue Backgrounder describes the increase in the number of governments in Colorado. It uses historical data to outline the increased rate of growth, and paints a picture of where Colorado is headed if this growth continues. Colorado is compared to other states and their growth rates using population per government as a common measure. Because the rate of growth in Colorado governments has outpaced population since 1998, Colorado has found itself adding governments at a rate faster than most other states. This is the first in a series of Backgrounders that will deal with governmental growth. The subsequent papers will explore the how and the why Colorado has experienced this increase.

The Issue

Before the end of 2007, Colorado will have over 3,000 governments. That is 3,000 entities with independent decision making on public policy and tax authority. This figure is significant in that the state eclipsed 2,000 governments in 1998. A growth rate of 40% in eight years is significant enough to raise concern about the direction of government. According to the latest information secured from the Colorado Department of Local Affairs (DOLA), growth in the number of local governments has been even more rapid. The following chart and graph represents DOLA supplied data.

Colorado’s Anti-Transportation Policy

Posted on: December 31st, 2002 by admin No Comments

IB-2002-D (December 2002)
Author: Dennis Polhill, Matthew Edgar

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The Denver Regional Council of Governments (DRCOG) recently updated its Metro Vision 2020 Regional Transportation Plan. Although their transportation agenda is not directly stated, hints are revealed in their rhetoric. One stated mission is to offer a ‘variety of travel opportunities.’ As with all rhetoric this is a nice and non-agitating statement that no one would readily disagree with. But what does it really mean? A close look at their report reveals facts seen by few and understood by fewer.

Travel Demand
(Person Trips)

DRCOG predicts a 48% increase in travel demand by 2020 in the Denver Metro area:

Source: DRCOG Metro Vision 2020, Regional Transportation Plan, page 107

Asset Forfeiture Reform is Long Overdue

Posted on: April 18th, 2002 by admin No Comments

IB-2002-A (April 2002)
Author: Dave Kopel

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This Issue Backgrounder details the two Colorado forfeiture statutes and Denver property confiscation ordinances. The Backgrounder explains how the Colorado statutes violate basic norms for due process and fairness. The Denver ordinances are even worse.

Part I. Denvers Property Confiscation Ordinances

Public Nuisance Criminal Ordinance: Denver makes various public nuisances into a crime for which a person can be fined or jailed, and his property confiscated. According to the definition of public nuisance, such a nuisance includes the mere possession of a so-called assault weapon or the unlawful carrying/transportation of any firearm.[1]

Thus, if a person keeps a self-loading M1 rifle in a safe in his home, and never even uses the rifle, the home can be confiscated. It is Orwellian to call private possession of a firearm a public nuisance.

Better Living Through Electricity

Posted on: October 5th, 1999 by admin No Comments

IB-1999-C (October 1999)
Author: Dwight Filley

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House Bill 1312 allows electricians to hire three apprentices. Current law allows only one.

There are several reasons why electricians should be allowed to hire more than one apprentice. First, ever since the Middle Ages, the apprentice system has been used and abused. Although it is a useful system for training newcomers to a trade, it is also routinely used to restrict entry into the trade so as to hold wages artificially high.

Prohibition on the requirement of donation of professional services: Keeping Voluntary, Voluntary

Posted on: March 15th, 1999 by admin No Comments

IB-1999-C (March 1999)
Author: Ed Lederman

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Synopsis: House Bill 1301 forbids the state government from forcing licensed professionals (such as doctors, lawyers, and architects) to donate their services for free.

The Colorado Constitution: The Colorado Constitution: Forcing someone to work for someone else, for free, is involuntary servitude, which is outlawed by the Thirteenth Amendment of the U.S. Constitution, and the Article II, section 26 of the Colorado Constitution. The Colorado Constitution allows slavery or involuntary servitude only as a punishment for crime, whereof the party shall have been duly convicted. Receiving a license to practice law or medicine is not the same as being convicted of a crime; therefore, imposing involuntary servitude on doctors, lawyers, and other professionals violates the Constitution.

Honest Language: Honest Language: HB 1301 is brief, less than a hundred words, and if passed would, unlike so many other laws, help keep the English language clear and honest. The word voluntary would continue to mean voluntary here in Colorado.

Last year, Colorado Supreme Court considered imposing mandatory pro bono on lawyers. But mandatory pro bono would be an abuse of the Supreme Courts authority to regulate the legal profession. Passage of HB 1301 would be a timely reminder that words do have real meanings. Just as voluntary means voluntary, rather than coerced, the Colorado Supreme Courts power to make and promulgate rules means the power to regulate attorney behavior, not to conscript lawyers into involuntary servitude.

Policy Issues: Policy Issues: While the language of HB 1301 encompasses all regulated professions, the impetus behind it has been the push from a strong minority on Judicial Advisory Council (which came within 1 vote of a majority) that the State Supreme Court require lawyers to donate a minimum hours of legal work to the poor. Or pay $1,000 in lieu of the pro bono service.

The mandatory lawyer servitude proposal some practical flaws, such as: How would such a rule be enforced What about regular clients who dont pay, and the attorney continues his representation Would that count Doesnt the fact of compulsion obliterate the whole concept of pro bono

When one reads the Advisory Councils report, three things become evident: The Council is concerned with cutbacks in federal and state funded legal aid; the Council looks to an increase in pro bono activity (including mandatory pro bono) to fill the gap; and the Council profoundly confuses the idea of fairness and justice with process.

The report refers to a particularly intriguing concept of legal need and scrupulously cites the definition of that phrase as developed by the American Bar Association: a circumstance in which information, advice, and assistance by an attorney would enable a person to effectively perform his or her civil legal responsibilities or appropriately perfect his or her legal rights. Reasonable enough. Except when one considers the context in which the definition is discussed. Legal aid usually does not assist a client in performing his civil legal responsibilities Quite the opposite. What legal aid often does–whether defending an eviction, fighting a deportation, suing for welfare benefits, or defending against debt collection efforts–is help clients avoid responsibilities.

Which leads us to the second part of what 20 members of the 41-person Council want to force lawyers to do for free: help a non-paying client appropriately perfect his or her legal rights. Note the absence of any moral judgment. If process can be invoked there is a legal need, and therefore by extension, a need to make lawyers work without pay.

Everybody who has not declared bankruptcy in the last six years may have a legal right to walk away from his debts. Does that mean that every person who wants to declare bankruptcy has a right to demand a lawyer who will work for nothing, so that the person can avoid his debts

Domestic law has been a very active area for legal aid. In my experience as an attorney ,every instance, repeat every instance, my experience with an opposing party represented by counsel that party did not pay for has been negative. The main problem is that the representation was cost-free to one party. When that happens, all responsibility for the temperate and good faith use of the system goes out the window. If your attorney is free, then you have no incentive not to demand that the attorney file every motion in the book, and waste everyones time.

In many cases irresponsible resort to the legal process compounds rather than alleviates problems. Perhaps recognition of that reality had a little bit to do with Congress (and Colorado) cutting back the funding for legal aid in the first place.

Prepared by Ed Lederman, Senior Fellow, Independence Institute

Concerning Issuance of Civil Restraining Orders: Good Intentions Are Not Enough

Posted on: February 10th, 1999 by admin No Comments

IB-1999-B (February 1999)
Author: Ed Lederman

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Synopsis: If there is any area of the law that needs clarifying and rationalization it is the law of domestic violence restraining orders.

On the surface HB 1204 attempts to do just that. Its bill summary states that it Consolidates the various types of civil restraining orders into a single type of restraining order. But alas it does not consolidate. Rather, on a procedural level it adds to the clutter and confusion plaguing the area of domestic restraining orders. More importantly, on a substantive level it takes a very large step in the wrong direction: It blends the concept of physical violence with that of emotional harm. It allows a person to be ejected from his own home, without a prior opportunity to present his side to the court.

Sticks and Stones May Break My Bones, but Words Will Never Hurt Me: As the schoolyard truism suggests, there is an immense and important distinction between physical harm/danger and emotional harm. A certain amount of nagging and bickering which is part of any marriage, at least on this planet, may on certain occasions be characterized as emotional harm.