Constitutional Amendments

In theory the election this November is non-partisan, we’ll have mayors, city council and special utility districts seats on the ballot as well as ten constitutional amendments. Most of the candidates will avoid using partisan labels as is appropriate for these races. The amendments proposed for the Texas constitution are non-partisan in as much as they passed the legislature with the votes at least a large fraction of each party.

The League of Women Voters and others publish non-partisan guides to the constitutional amendments, you can find them and the candidates on your ballot at Vote411.org. Our own state representative, John Kuempel, included the amendments and the state legislature’s approved pros and cons on the last page of the missive he mailed to voters a week or so ago.

I can only support Amendment 2 and 10. Amendment 2 provides for the Texas Water Board to issuing bonds to provide financial assistance in developing water projects in economically depressed areas that would otherwise be unable to provide adequate resources for their citizens. Amendment 10 would allow law enforcement animal handlers to take ownership of their service animals when those animals are retired leaving them in the hands of people they have come to know, love, and trust rather than the current process of auctioning the animal to the highest bidder. The auctions only generate a few thousand dollars a year and it seems unnecessary and inhumane to take the animal away from the only family it has known for many years in the last years of its life.

Amendment 3 is designed to allow yet another property tax exemption, this time for property damaged in hurricanes and similar instances. As it stands now if the property is that badly damaged its assessed value will be decreased and therefore the taxes lowered anyway.

Amendment 4 is a big no. The stated purpose is to prohibit the imposition of a state income tax. First state law already does that, as it requires a vote of the citizens to start taxing “natural persons”. The real kicker and reason to vote no is that passage of this proposition changes the language of state law to prohibit an income tax on “individuals”. To most of us such a difference of phrasing seems innocuous but in the legal world, that change is very significant as corporations are treated as “individuals” which means that Amendment 4 prohibits an income tax on corporations whereas current law does not. That’s why state law provides for what is known as the Franchise Tax which Republicans have been trying to kill by increments since the day it passed.

This week I received a mailer on Amendment 5 pushing to dedicate sales tax revenue from the sale of sporting goods to the state parks system. I’m fundamentally opposed to dedicated taxes as it hamstrings legislators and prevents them from addressing budget problems, particularly when the economy suddenly drops like it did in 2011 when the state cut 6% from the education budget. Amendment 5 would just make that situation worse.

Amendment 9 authorizes another tax exemption, this time for the wealthy and big businesses that stock significant amounts of precious metals, gold and silver among others. Right now those precious metals are eligible for property taxes so if they were to be exempted your community may find the need to increase your property taxes in order to make up the difference.

There’s not enough space to cover the rest, all I can say is that in my opinion you would be best served by voting no to all but 2 and 10.

Published in the Seguin Gazette - October 18, 2019

Kuempel's Smoke and Mirrors

Once again our state representative, John Kuempel, has mailed one of his puff pieces to residents in Guadalupe and Wilson counties. As usual he touts purported accomplishments which are often as not failures.

His missive spends half a page on state funding for public education and without background it sounds pretty good until you realize that the state still hasn’t restored all the funding it took away in 2011. Instead of fully restoring funding our legislature with Kuempel’s vote in favor chose to forcibly reduce property tax rates school districts around the state had used to make up for the state cuts. So he’s cheering about a solution to a problem he helped cause in the first place. In the SCUC ISD where I live my property taxes will go down a whopping $12 a month. That’s not enough to buy a half tank of gas and I’m not going to notice it in my monthly budget. Had our district been allowed to keep some or all of those funds we wouldn’t have to again request a waiver on the maximum number of students per teacher in K-3 classes. K-3 is the age where children learn the most quickly and need to most attention and our district like many others still can’t cover the cost to properly educate them.

It isn’t just that Kuempel and his Republican cronies haven’t fully restored funding of public education they also restricted how the additional funding they did provide can be spent. It never ceases to amaze me that the politicians who talk the most about local control and not forcing one size fits all solutions on the public are the very ones most likely to do the exact opposite. I think we’d all have been better served if the state had left the choice to maintain or reduce property taxes up to the various districts.

Kuempel goes on to tout what he calls increased transparency in property taxes but in reality it’s just a requirement to hold elections to increase property tax rates. If he really believed in transparency he’d work for passage of legislation that requires purchase price of every transfer or real property to be reported to the local appraisal district. Right now wealthy folks who purchase multi-million dollar homes often use the option to not report so that the home can’t be properly appraised and therefore save thousands and tens of thousands on their taxes all while you and I pay the full share. Our former Republican state senator, Jeff Wentworth, tried for a decade to pass such a bill. If Kuempel is going to talk about transparency he should have the integrity to stop protecting the rich folks behind the curtain.

Another area where Kuempel obfuscates is his claim the legislature provided funding to cover shortfalls in Medicaid and state hospitals. Had he and his Republican colleagues voted to accept Medicaid expansion as offered under the Affordable Care Act the federal government would have provided an additional $100 million to Texas every year. That funding would have assured that many if not all of the rural hospitals that have closed and will close of the next few years were funded without costing Texas taxpayers a dime.

The general theme here is that Kuempel is taking credit for half measures designed to smooth over problems he and his fellow Republicans created in the first place. This time next year we may have a chance to replace him. I hope voters will see through the fog of Republican claims and elect someone who believes in solutions not bandaids.

Published in the Seguin Gazette - October 11, 2019

Surprise Conviction Shouldn't Be

I was both heartened and saddened when I saw the news that former Dallas police officer Amber Guyger was convicted of murder in the shooting death of Botham Jean. Last year Guyger walked into Jean’s apartment thinking it was her own and shot him to death on the spot. She used the scary big black man defense claiming that she was in fear for her life even though it was she who invaded someone else’s home and was carrying a deadly weapon. Given the recent history of white police officers shooting unarmed black men and not even being prosecuted let alone convicted the verdict came as surprise, welcome though it was.

It’s truly sad that the black community in this country has been so abused that a conviction for such an obvious murder is cause for surprise. Tulsa police officer Betty Shelby was acquitted after standing trial for fatally shooting unarmed 40-year-old Terence Crutcher in 2016. Crutcher was just trying to deal with his stalled vehicle.

New York City policeman Daniel Pantaleo faced no criminal liability for the 2014 killing of an unarmed black man, Eric Garner, using a prohibited chokehold. Pantaleo, a white police officer, used a chokehold as he attempted to arrest Garner on suspicion of selling loose, untaxed cigarettes on a sidewalk.

Officer Jeronimo Yanez shot 32-year-old black man, Philando Castile, five times during a 2016 traffic stop in  Minnesota. Castile notificed the officer he was carrying a firearm and after Yanez demand his identification Castile reached for his wallet and Yanez shot him. Yanez was acquitted of manslaughter in 2017 having testified he was in fear for his life.

Often even a conviction yields minimal time in prison for officers killing unarmed black men. In Oakland California in 2009 Police Officer Johannes Mehserle, leaned over Oscar Grant who was face down on the ground, pulled his gun and shot Grant in the back from about one foot away. Mehserle served eleven months in county jail.

Guyger is sentenced to ten years in prison but don’t feel too confident yet that she’ll be in prison nearly that long. Oklahoma reserve officer, Bob Bates killed unarmed Eric Harris in 2015 and got a four year sentence though he only served a year and four months before being released.

The Black Lives Matter movement demands justice, accountability, and most of all equal treatment. Some of my white neighbors have countered with “all lives matter” and dismiss any attempt to get them to recognize that Black Lives Matter isn’t about demanding special treatment just equal treatment. It’s more than frustrating that my white neighbors refuse to accept that our collective failure to demand justice for all as our pledge of allegiance claims insures that police and even people like George Zimmerman, the out of control neighborhood watch volunteer who killed 17 year-old Trayvon Martin in Florida, can act with impunity as long as the victim is black.

The conviction of such a clearly guilty person as Amber Guyger shouldn’t come as a surprise. It’s going to take Black Lives Matter and other activists to insure that someday such a conviction is the justice we all expect, but today is not that day.

Published in the Seguin Gazette - October 4, 2019

President Mobster

Imagine you manage a small business in a part of town that’s sees more than its share of crime and a wealthy guy from another part of town walks in trailing a couple big guys that look like bodyguards. Imagine further that you’re having a conversation with the wealthy guy about the local business climate, fair treatment of employees, and other topics when he changes the subject and asks very nicely to dig back in your records and find evidence that a mutual acquaintance has been involved with something shady. Then he says “You’ve got a great business here, it would be a shame if something happened to it”. Would you think he’s a mobster? If he’d asked for cash you’d probably call it a protection racket.

Donald Trump and his personal lawyer, Rudy Giuliani, have both admitted to having had that conversation with Volodymyr Zelensky, the President of Ukraine. They’ve both admitted to withholding congressionally authorized military aid, specifically weapons, from Ukraine in order to extract the promise of help finding dirt on Joe Biden and his son Hunter. Were Russia not continuing its illegal and undeclared war on Ukraine it would be easy for Zelensky to shrug off such demands but support from the United States is critical to maintaining the freedom, autonomy, democracy of Ukraine. Zelensky needs all the help he can get to respond to Russian aggression.

The fact that Trump has admitted to extortion for political gain both in his own statements and in the purported “transcripts” suggests to me that the whistleblower report is likely even more damning. Trump and his cronies have been illegally withholding the whistleblower report for nearly a month then he suddenly admits and can’t stop talking about just what the rumors have been suggesting. Based on Trump’s past use of outrageous statements to distract from more important issues I think these revelations likely mean that the report will document even worse transgressions than the early rumors suggested. Based on his actions toward Ukraine it would appear Trump actually believes that his statement  from late July, "Then I have an Article II, where I have the right to do whatever I want as president, “ is true.

Article II of the U.S. constitution says nothing of the sort. In fact Article II clearly limits presidential power, it assigns the title Commander in Chief of the armed forces, the power to make treaties, appoint ambassadors, judges, department heads and others but only with agreement of two thirds of the senate. Article II doesn’t even include the power to veto legislation but it does provide that the President “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Our congressman, Vicente Gonzalez, finally got on board with calling for an impeachment inquiry just hours before Speaker Nancy Pelosi announced that the House would begin such an investigation. The House leadership has withheld support for impeachment for many months and many committee investigations have been stymied by witnesses who refused to cooperate, now that Speaker Pelosi has taken off the brakes we may see quite a bit of action from the six committees assigned to the investigation in the coming months. None of it will matter if their chairs don’t hold witnesses in contempt if they refuse to truthfully and completely answer questions and provide requested evidentiary documents.

Now is not the time to let up on our member of congress, it is every bit as imperative now as it was last week to push him to support a full inquiry into Trump’s misdeeds.

Published in the Seguin Gazette - September 27, 2019

Want A Gun Join A State Militia

Democrats are often viewed by Republicans as lacking in respect for the flag, weak on patriotism, and desiring to rewrite the constitution. I’ll cop to the first one as I’ve never been big on worshipping symbols, be it my high school football mascot or the stars and stripes. Patriotism is another matter as I believe patriots are those who recognize their nation’s failings and struggle to hold it accountable in order to make it better, count me in. Regarding rewriting the constitution, while it could use an amendment or two like equal rights for women and replacing the dangerous electoral college with the popular vote, I’m largely satisfied with simply enforcing it as is.

As an example the Second Amendment states: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Many on the right and a significant fraction of those on the left interpret that as if the first two phrases don’t exist. The Supreme Court only recently started viewing it the same way. Prior to their 2008 decision in District of Columbia v. Heller the Supreme Court had not held that just anyone had the right to have any weapon they chose. In fact in a 1939 case the United States v. Miller, the Supreme Court ruled that the Second Amendment did not protect weapon types not having a "reasonable relationship to the preservation or efficiency of a well regulated militia."

In District of Columbia v. Heller (2008), the Supreme Court affirmed for the first time that the right belongs to individuals, for self-defense in the home, while also including that the right is not unlimited and does not preclude the existence of certain long-standing prohibitions such as those forbidding "the possession of firearms by felons and the mentally ill" or restrictions on "the carrying of dangerous and unusual weapons." State and local governments are limited to the same extent as the federal government from infringing upon this right. Justice Antonin Scalia wrote the majority opinion in the Heller case.

Supreme Court Justice Antonin Scalia claimed to be an originalist, meaning that you have to interpret the constitution with an eye toward what words and phrases meant at the time it was written and nothing else. That notion is at odds with the views of many scholars and judges who believe one must look at legislative intent, ordinarily a judge or scholar will review the debate over the legislation, including any amendments made during the process to interpret those meanings. In the case of the constitution there are the Federalist Papers many of which were written by the primary author of the constitution, James Madison, others by Alexander Hamilton.  Both wrote about militia’s and their purpose in the new country. Their intent was for them to be organized and regulated by the individual states and beholden to them unlike a national army under orders from the chief executive. It is clear that weapons owing citizens were expected to be members of such a militia and to be held accountable by the states.

While Scalia turned the Second Amendment on its head even he made it clear that states and the federal government had both the right and the duty to restrict "the carrying of dangerous and unusual weapons."

There is no question that an automatic weapon with a high capacity, interchangeable magazine is a very dangerous weapon so it would appear that even Antonio Scalia would support restricting private ownership of weapons like those used in El Paso, Odessa and Sutherland Springs.

Published in the Seguin Gazette - September 20, 2019

Electoral College Anti-Democratic

Immediately after the 2016 presidential election in which Donald Trump lost the popular vote by nearly 3 million votes or 2.1% and yet won the electoral college overwhelmingly we all heard Clinton supporters complain that the electoral college should be abolished. There’s still plenty of grumbling on that topic amongst Democrats but it is a back burner issue for most of them. That’s a shame because the electoral college is even more anti-democratic than most people recognize. I don’t mean anti-Democratic Party, I mean anti-democracy.

Using the turn out from the 2016 election as an example it is mathematically possible for a candidate to win with less than 24% of the popular vote and still become president if they win the 41 smallest states, including the District of Columbia, by a margin of a single vote in each. Conversely if the candidate wins the largest 11 states: California, Texas, New York, Florida, Pennsylvania, Illinois, Ohio, Michigan, Georgia, North Carolina, and New Jersey, by a margin of just one vote each they would become president with less than 28% of the popular vote.

The examples I’ve used are the most extreme and rather unlikely but there are many other combinations in which a candidate winning vastly fewer votes than their opponent nevertheless can win the presidency due to the electoral college. There have been four other elections in the U.S. in which the winner had fewer popular votes than their opponent, the most recent was in 2000 when George W. Bush won over Al Gore. In 1876 Samuel Tilden won a majority of the popular vote at 50.9% and still lost the presidency to Rutherford B. Hayes due to the electoral college.

Alexander Hamilton identified several reasons and assumptions considered by the framers of the constitution which he articulated in his various writings. Among those reasons and assumptions were:  The choice of the president should reflect the “sense of the people” at a particular time. The choice would be made decisively with a “full and fair expression of the public will” but also maintaining “as little opportunity as possible to tumult and disorder”. Individual electors would be elected by citizens on a district-by-district basis. Each presidential elector would exercise independent judgment when voting, deliberating with the most complete information available in a system that over time, tended to bring about a good administration of the laws passed by Congress.

In this case Hamilton and his fellow framers seem to have completely missed the mark. What could more fully reflect the sense of the people than election by popular vote? At least in Texas, hardly anyone knows or cares who their presidential electors are as they are selected by the attendees of their party’s state convention before the party candidates have been finalized. Tumult and disorder is exactly what we’ve gotten both times in the last 20 years when the electoral college has chosen a winner who didn’t also win the popular vote. Independent judgement is not something voters appreciate from their electors and some states require electors to vote in accordance with the popular vote in their state assessing fines if they don’t.

Change via a constitutional amendment may be beyond reach but several election reform groups haven’t given up hope of changing the situation and they’ve gotten quite a number of states to adopt legislation requiring their electoral college votes to be cast for the winner of the national popular vote regardless of who wins in their particular state once enough states to win the electoral college have joined them in the National Popular Vote Interstate Compact.

Published in the Seguin Gazette - September 13, 2019

West Texas Renewable Projects Offer Hope

A couple of weeks ago I drove to Santa Fe, NM to visit a client and as I passed the area near Big Spring, TX I saw three very large clusters of windmills. I didn’t try to count them as that wouldn’t have been safe to do at 75 mph but I could see that there very many. Now two weeks later I’m reminded of those windmills again as I see news reports of the massive hurricane that destroyed Grand Bahama Island and threatens much of the east coast of the United States. I’m reminded because there is little question that hurricane Dorian is as powerful and slow moving as it is because global climate change has led to warmer air and seas which are the fuel for hurricanes.

Wind has generated 22% of the Texas’ electrical needs this year slightly more than the provided 21% provided by coal according to the Electric Reliability Council of Texas (ERCOT). Just sixteen years ago, in 2003, wind made up less than 1% of the state's power, and coal satisfied 40% of electrical needs, according to ERCOT documents.

In 2017 utility scale solar generation is Texas equaled what wind generated back in 2003. Utility scale means a project big enough for a utility to buy from. By the end of this year it will be double that and indications are it will double again within the next year or two. Distributed solar generation, meaning primarily rooftop installations, provides about 25% as much as utility scale facilities at this time.

Projections indicate that Texas will become the second most prolific generator electricity from solar by 2021, as more solar farms are built in West Texas near existing wind farms. Investments in transmission lines to accommodate wind generators making building solar farms nearby very cost efficient because solar and wind energy production mostly occur at different times a day allowing them to share those transmission lines.

Despite the tariffs on Chinese solar panels imposed by the Trump administration, the price of solar power continues to drop so that every year electricity from solar energy gets a little cheaper while coal and natural gas costs are basically the same as the prior year and nuclear just keeps getting more expensive. It's often more cost effective to build a new solar plant than it is to keep running an existing coal power plant or gas plant.

Solar alone employs around 330,000 people in the United States while wind employs about 110,000. Coal mining and generation employs about 140,000. Taken together wind and solar energy jobs nearly triple the number of coal related jobs in the electricity sector.
Seeing that more than two thirds of Grand Bahama Island are now underwater should make anyone who believes climate change is not a big deal or a long way off rethink that position. The growth of renewable energy generation in Texas makes clear that what needs to be done to avoid the worst of the damage global climate change can cause it just takes the will to do it. We as voters must demand that our elected officials take this problem seriously and adjust the incentives and tax breaks offered to the energy industry in Texas and the nation to encourage speeding up the build out of renewable energy projects for the sake of our future and that of future generations.

To paraphrase Wendell Berry: We don't inherit the climate from our ancestors; we borrow it from our children.

Published in the Seguin Gazette - September 6, 2019