Thursday, January 15, 2004

Separation talk

I'll be on radio and in cyberspace next week, appearing on KNPR-FM's "State of Nevada" public affairs program Monday the 19th. The topic: public employees in the Legislature. My buddy and R-J colleague Steve Sebelius is the guest host, and the other guests are City Councilwoman Lynette Boggs McDonald, Assembly Speaker (and Henderson cop) Richard Perkins, and Senate Minority Leader (and UNLV political science professor) Dina Titus. The show was taped Tuesday, will air at 9 a.m. and 6 p.m., and will be available as an audio stream on the Web site sometime that morning. My radio voice was a bit rusty, so I hope my presentation was OK.

For those who can't or won't listen to the program, you're probably familiar with the arguments Boggs McDonald and I make, primarily this: The separation-of-powers clause in the Nevada Constitution prohibits employees from any state and local agency from simultaneously serving in the Legislature. Perkins and Titus counter with a few of their own:

1) Nevada is a home-rule state, so local employees are exempt from the ban. That's not true, though it was the basis of the 1971 opinion by Attorney General Bob List that opened the floodgates for the subsequent torrent of double-dippers. List told me that was his justification. But he just plain got it wrong. There are no home-rule provisions in the Nevada Constitution, as there are in every home-rule state's founding document. Every governmental subdivision in the state that's not listed in the constitution is a creation of the Legislature (with one notable exception I'll mention later). Every city, county, school district, water district, school board, etc., can be dissolved on a whim, by a majority of the lawmakers in both legislative houses. These bodies have no authority to increase or decrease taxes or to impose fees or raise money for capital projects without first gaining legislative approval. Often, they have to ask permission before they can annex land. They're subservient to the will of the Legislature, and their employees are -- according to the constitution -- members of either the executive branch or (in the case of the local courts) the judicial branch. And those workers can't serve in the Legislature and keep their government jobs.

2) Employees of the state university and community college system are also exempt from the ban because the constitution sets up the system as a "fourth branch" of government, controlled by an elected board of regents. That's inaccurate, for several reasons. First, the university system remains a creation of the Legislature, to the extent that the Legislature, among other things: sets the budget for the system; raises the money to pay for the system; sets the capital budget; sets tuition and fees for students; sets the pay scale for faculty and staff; establishes or disbands entire campuses and individual departments within campuses. The regents make recommendations and requests to the Legislature, but lawmakers have the final say. Next, it doesn't matter how many shadowy "branches of government" people concoct. Whether it's four or 400, the constitution says a person can't serve in more than one at a time.

3) Here's my favorite, to the degree it reveals the philosophical underpinnings of Perkins, Titus, and others who think dual service is OK: The constitution isn't some black-and-white document which articulates rigid rules. It's flexible, open to interpretation. And besides, we (Perkins and Titus) would never engage in the sort of "petty tyranny" I've alleged in print, because we're public-spirited people ... and if we ever got out of line, the voters would kick us out. Both of them made those points during the course of the show, and they're illuminating. At one level, "the voters can fire us" argument is awfully easy for somebody in a supersafe legislative district (not to mention a de facto lifetime goverment job) to say. But the larger point: We're good people, so how dare you insinuate any nefarious intentions from us encapsulates what Thomas Sowell called the "unconstrained vision" in his seminal book "A Conflict of Visions." (A fine summary of his argument is here.) In a nutshell, the unconstrained vision holds that human nature is perfectible, and that intentions and results trump rules and processes -- that people with pure hearts should be trusted implicitly ... that absolute power never corrupts. Of course, in its extremes, that view has led to such atrocities as the pogroms, the Stalinist purges, the Cultural Revolution of Mao and the killing fields of Cambodia. But here and now, that view also gave us the system that enabled Wendell Williams to commit his manifold crimes, misdemeanors and abuses ... not to mention created the makework jobs by the community college system for Assembly members Chris Giunchigliani and Mark Manendo. That's why the founders believed so strongly in separation of powers -- a real-world application of the constrained vision -- and why the principle continues to have relevance today. And it's why -- no matter what Attorney General Brian Sandoval decides later this month, when he revisits the List opinion -- it'll probably be necessary to amend the constitution and explicitly ban public employees from the Legislature entirely. Because the double-dippers don't really believe in self-government and see no reason to govern themselves.

Or is there a fourth branch?

Turns out that thousands of students have been paying out-of-state tuition (which can exceed $2,000 a semester) at Nevada colleges and universities since 1995. According to this story by the R-J's crack political reporter Erin Neff (lured away from the Sun a few months back), the Board of Regents, on advice from their crack-addled legal counsel, decided that the 6-month residency requirement established by the Legislature was "unconstitutional," and that students had to live here for 12 months before they qualified for residency status and were exempt from tuition. (All students have to pay per-class fees.) Lawyers said the regents can set their own residency policies independent of Nevada law.

Lawmakers are livid, including one Richard Perkins, who can't believe the university system would get all uppity and act like, say, an independent branch of government! Meantime, Polo Towers owner and big-time Democratic Party donor Steve Cloobeck is ready to bankroll a class-action lawsuit on behalf of overcharged students. I hope the suit prevails; in a just world, the proceeds would be the result of garnisheeing the salaries of the regents and their attorneys.

BTW, Sebelius wrote a fun column about the controversy. A taste:

If the board of regents can decide to ignore the Nevada Revised Statutes, how long can it be before they start thinking really big, and disregard whole portions of state and federal law as well?

It's not inconceivable that the system could decide to raise a standing army, quarter troops in the homes of unwilling Las Vegans and declare war on the defenseless and inoffensive community colleges of Utah, Arizona and parts of California. They'll begin searching through personal papers and effects (oh, wait, Regent Linda Howard has already done that, hasn't she?) and begin to seize private property for public use without just compensation.


Read the whole thing.

More XM

The experiment continues to be a success, despite XM's unfortunate habit of having a playlist -- OK, it's a big one -- and repeating songs. (To be sure, repeats are most annoying when you don't like the cuts.) Still, I have my first convert: my friend Ben Boychuk, who (along with his lovely wife Millie) has joined us for a few blues outings over the years. When I e-mailed friends in December about my initial impressions of the service, Ben jumped on board immediately, offering his views on his entertaining joint blog Infinite Monkeys here. BTW, IM just made the faves list, to your left.