Insidealec June2011 Final

8/4/2019 Insidealec June2011 Final

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INSIDEA P U B L I C A T I O N O F T H E A M E R I C A N L E G I S L A T I V E E X C H A N G E C O U N C I L

alec.org

All About Jobs:Keeping the Pledge

to Repeal & Replace

ObamaCare

By U.S. House Speaker John Boehner

Preserving theFederalist Structure

of American

Constitutional

Government

By The Honorable Pam Bondi

State Insurance

Exchanges:

The Case Against

Implementation

By Benjamin Domenech

SPECIAL ISSUEHEALTH &

HUMAN SERVICESANNUALMEETINGPREVIEWS

INSIDE


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ANNUAL MEETING PREVIEW

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Cmon Down to the Big Easy!BY ALEC NATIONAL CHAIRMAN NOBLE ELLINGTON | Chairman Ellington highlights annual meeting

activities and the City of New Orleans

Experience the Safe, Fresh, Local Louisiana Seafood!BY EWELL SMITH | Gulf Coast seafood is plentiful, safe and remains some of the best in the

nation

Seismic Shift in Resource Availability Must Be Followed by Seismic Shiftin Energy PolicyBY SEC. SCOTT A. ANGELLE | We stand at the Golden Age of Natural Gas in this country

All About Jobs: Keeping the Pledge to Repeal & Replace ObamaCare

BY U.S. SPEAKER JOHN BOEHNER ROH | Speaker Boehner addresses the realities facing jobcreators and the states

Health Care Freedom in KansasBY STATE SEN. MARY PILCHERCOOK KS | An ALEC member recounts her journey in getting

ALECs Freedom of Choice in Health Care Act enacted

State Insurance Exchanges: The Case Against ImplementationBY BENJAMIN DOMENECH | Policymakers should consider that any exchange created to pass

muster with U.S. Health and Human Services will be fundamentally flawed

States Triumph over Federal Mandate: Health Freedom GainsMomentum in 2011Health care freedom remained a top priority for legislators in 2011, as ALECs Freedom of

Choice of Health Care Act was introduced in 35 states

Compacts: The Key to Health ReformBY SPENCER HARRIS | The Health Care Compact will not only bring about health care reform,

but governance reform

Can We Stop Calling Them Consumer Protections Now?

BY MICHAEL F. CANNON | Supporters of the health law have successfully misbrandedObamaCares health insurance regulations as consumer protections

Preserving the Federalist Structure of American ConstitutionalGovernmentBY THE HONORABLE PAM BONDI | Floridas attorney general explains why the states are

challenging the federal health law, and whats next for the states health care lawsuit

Safe and Aordable Pretrial Release an Issue in Many StatesBY MICHAEL HOUGH | Government-run bail programs jeopardize public safety and keep

taxpayers on the hook

CONTENTSINSIDE ALEC | JUNE 2011

A PUBLICATION OF THE AMERICAN

LEGISLATIVE EXCHANGE COUNCIL

ALEC BOARD

2011 National Chairman

Representative Noble Ellington

Louisiana House of Representatives

Private Enterprise Board Chairman

W. Preston Baldwin, Centerpoint 360

ALEC STAFF

Executive Director

Ron Scheberle

Senior Director,

Policy and Strategic Initiatives

Michael Bowman

Senior Director,

Finance and Administration

Lisa Bowen

Senior Director,

Membership and Meetings

Chaz Cirame

Senior Director,

Public Aairs

Raegan Weber

INSIDE ALEC STAFF

Editor in Chief

Raegan Weber

ALEC EXHIBITS AND ADVERTISING

Chaz Cirame

Exhibiting or advertising at an ALEC

event is a great way to promote your

company to members of both the

private and public sectors. If you are

interested in exhibiting or advertising

at an ALEC meeting, please contact

Chaz Cirame at [email protected] or

(202) 466-3800.

American Legislative Exchange

Council

1101 Vermont Ave., NW, 11th Floor

Washington, D.C. 20005

Phone: (202) 466-3800

Fax: (202) 466-3801

www.alec.org

DESIGN

Steven Andrews

www.stevenandrewsdesign.com

ALEC strives to provide legislators

with viewpoints and discussions on

issues important to them and their

constituencies. Authors submitting

articles for Inside ALECdo not

necessarily reflect the views or policy

positions of ALEC.

STATE SPOTLIGHT

ALEC POLICY FORUM

ALEC IN FOCUS

SPECIAL REPORT

ALEC ALUMNI SPOTLIGHT


4/20

BY ALEC NATIONAL CHAIRMAN NOBLE ELLINGTON

ALECs 38th Annual Meeting, Solutions for the States, will bethe best yet. New Orleans is a thriving, resilient city withmuch to oer its visitors with amazing cuisine, cultural events, his-tory and entertainment.

As always, you will have the opportunity to network with yourpeers from across the country and receive information from indus-try leaders to help you make sound policy decisions for your state.This years Annual Meeting will provide you with a host of soundsolutions on significant issues aecting our states and countryincluding, energy alternatives such as natural gas (see Sec. ScottAngelles article on p.19), digital learning, solutions for real budgetand pension reform, and the Medicaid crisis in the states.

We have many receptions and activities planned so you mayrelax and network after a long day of educational sessions. Thefirst ocial evening of ALECs 38th Annual Meeting, we willvisit one of New Orleans treasures the National World War IIMuseum for the Louisiana Welcome Reception. Well enjoy greatfood and great company at an historical location. On Thursday,August 4, youll have opportunity to network with your peers at arelaxing reception while enjoying great food and beverages. Fridaynight is your night with your state and there are plenty of famousand amazing restaurants, museums and events within walking dis-tance of our host hotel, the New Orleans Marriott. Finally, after theprayer service on Saturday, I hope you will enjoy and experiencemore New Orleans activities.

Let me take a moment to share with you some informationabout the great state of Louisiana and New Orleans. New Orleansis rebounding with a strong economy and some areas are doingbetter than ever before. Average wages in the New Orleans metroarea have increased 14 percent from 2004 to 2008. Entrepreneur-ship has grown in the metro area post-Katrina with 450 of every100,000 adults starting a business compared to 320 out of every100,000 nationally. It is the entrepreneurs that contribute signifi-cantly to our growing, diverse economy and will lead us to stabil-ity and sustainability.

Tourism is Louisiana and New Orleans top industry. In 2010,total spending by international and domestic visitors in Louisianawas $9.3 billion. Fine dining and shopping rank among the top

five travel leisure activities for domestic visitors which have beenmajor contributors to economic recovery in Louisiana. I encour-age you to visit the ocial Louisiana Oce for Tourism site at

www.louisianatravel.com for more information on exciting eveand adventures in this great state.

When you visit New Orleans, youll see that our culinindustry is one of the strongest in the United States. The seafois safe (see the article by Louisiana Seafood Promotion & Marking Board on p.16), the cuisine is divine and restaurants are pltiful. According to the Louisiana Restaurant Association, in 20restaurants in Louisiana are expected to have an economic impof $6.2 billion. Every $1 spent in restaurants in Louisiana genates an additional $0.96 in sales for other industries in the staWhen in New Orleans, be sure to sample our world famous benet pastries and try the Oysters Rockefeller. They arent far frour hotel!

The cultural economy is also vital to New Orleans, ranki

the second largest economic sector by employment after touism. Along with 200 cultural non-profits, about 1,200 commcial enterprises in the city are part of the cultural economy, incluing 500 independent, local restaurants, 120 live music venues, live performance venues, 24 museums and 209 art galleries. Tfilm industry is booming, with over 1,000 local film workers, projects spending $355 million locally, and 400 smaller projespending as much as $4 million in the city in 2010. New Orleahas over 100 cultural festivals with an estimated attendance omillion in 2010 and an estimated annual economic impact of mothan $600 million.

Louisiana welcomes ALECs members for our 38th AnnuMeeting to our great city and I assure you, New Orleans is rea

for ALEC. Remember to contact ALECs membership and meings team for any assistance you may need in registration, securyour hotel and making your travel plans. New Orleans is ready you, so cmon down to the Big Easy!

Cmon Down to the Big Easy!


References:

-Greater New Orleans Community Data Center - http://www.gnocdc.org/

-Louisiana Tourism - http://www.louisianatravel.com/

-New Orleans Mayors oce of Cultural Economy - http://www.nola.gov/PRESS/City-Of-New-Orleans/All-Articles/20110506-MAYOR-LANDRIE

RELEASES-REPORT-ON-CULTURAL-ECONOMY

Rep. Noble

Ellington is ALECs

2011 National

Chairman.

Ellington has been

a member of the

Louisiana Houseof Representatives

since 1995.


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SECTION TITLE

BY U.S. SPEAKER OF THE HOUSE JOHN BOEHNER ROH

From the moment the American people elected a new Republi-can majority to Congress, weve focused on job creation. Lastmonth we unveiled A Plan for Americas Job Creators thats focusedon fostering innovation and reducing regulatory burdens, andthat builds on our Pledge to America to remove barriers to jobgrowthbarriers like ObamaCare.

Put yourself in the shoes of a small business owner. For someof us its not hard: weve been there. You hire good workers, meetyour payroll, play by the rules, and at the end of the day you hopeto have something left over to reinvest and grow your business.

Now imagine operating under the health care law jammedthrough Congress by Democrats last yeara law that makes it far

more dicult for you to create new jobs.The prospect of crippling fines and penalties have forced the

owner of a Lawton, OK-based lumber company to make a toughchoice: keep his payroll under 50 employees, or make employ-ees part-time or independent contractors. I do not want to loseanyone on my payroll, he told House lawmakers, but if it comesdown to laying o a few employees or being saddled with thesefines, I wont have a choice.

Imagine operating under a health care law where your employ-ees cant keep coverage they like.

The House Ways & Means Committee heard from the ownerof a printing company in Moorestown, NJ who says his insur-ance carrier cancelled the health care plan he oered his workers

because of ObamaCare. The promise that my employees wouldbe able to keep their existing health insurance has proven to notbe true, he said.

Imagine operating under a health care law that raises yourcostsdramatically.

The owner of a restaurant in Marshall, MI told the HouseEnergy & Commerce Committee his insurance premiums couldincrease by 282% under ObamaCare. We believe that oeringhealth care coverage is the right thing to do, he said, but, Wecannot raise menu prices high enough to cover these costs and todo so would drive away the customers who are just beginning toreturn to our tables.

Sound frustrating? This is the reality facing job creators today.

Things are so dicult, the Obama Administration has issued morethan 1,300 waivers to businesses and unions shielding more than3 million Americans from the health care laweach waiver a tacitadmission that it increases costs and destroys jobs.

Things are no better for state legislators dealing with lawscosts and mandates. According to a joint congressional report, themassive Medicaid expansion will cost states twice what the Con-gressional Budget Oce (CBO) previously estimated: $118 bil-lion through 2023 compared to the $60 billion estimated by CBOthrough 2021.

Republicans made a Pledge to America to repeal the full health

care law, but since the Democratswho control Washington haveblocked our eort to do so, we arenow working to repeal it piece-by-piece. To that end weve voted todefund it and shut down several ofits slush funds. We even success-fully passedand the presidentsigneda measure repealing theonerous small business paperworkmandate.

But we cant stop there. For toomany people our health care sys-tem already wasnt working before

Democrats imposed their job-crushing law. Republicans made apledge to replace ObamaCare withreforms that will help lower health care costs and protect jobsand were keeping that one too.

We want to let Americans shop for coverage across state lines.Manhattan Institute senior fellow Dr. Paul Howard says The HealthCare Choices Act (H.R. 371) by Rep. Marsha Blackburn (R-TN)would spur innovation in insurance products as states competeto oer the best combination of cost and coverage terms. And wewant to curb junk lawsuits that drive up prices (see The HEALTHAct [H.R. 5] by Rep. Phil Gingrey [R-GA]).

We want to eliminate barriers that prevent cash-strapped states

from saving their Medicaid programs and better targeting assis-tance to those who need it most (see The State Flexibility Act of2011 [H.R. 1683] by Reps. Gingrey [R-GA] and Cathy McMorrisRodgers [R-WA]). This is where the innovation is going to happen on the state level with creative legislators and governors workingtogetherand Republicans in Congress want to allow it to occur.

We also want to save Medicare from bankruptcy and eliminateObamaCares rationing board. The GOP budgetthe Path toProsperitywould protect Medicare for current and future retir-ees. Nobody 55 and over would see any changes, and we couldpay o our debt over time without giving unelected bureaucratsthe power to deny seniors care. Washington Democrats plan is todo nothing, which will ultimately push Medicare into bankruptcy

and lead to benefit cuts for seniors.If you still have your small business shoes on, you know health

care law isnt the only dark cloud hanging over our economy. Dem-ocrats are pushing for tax hikes that would drive up the price ofenergy; an onslaught of new government regulations has job cre-ators frozen with uncertainty; and the presidents plan to raise thedebt limit without cutting spending is a danger to American jobs.

To spur job growth, we need to repeal and replace ObamaCare,and we need to liberate our economy from the shackles of debt andbig government. Learn more about our Plan for Americas Job Cre-ators by visiting Speaker.Gov today.

All About Jobs: Keeping the Pledgeto Repeal & Replace ObamaCare

John A. Boehner

serves as Speaker of the

United States House of

Representatives. Elected

to represent the Eighth

Congressional District of

Ohio for an 11th term in

November 2010, John is a

national leader in the drive

for a smaller, less costly,

and a more accountable

federal government and isan ALEC alumnus.

ALEC ALUMNI SPOTLIGHT: HEALTH & HUMAN SERVICES


6/20

BY STATE SEN. MARY PILCHERCOOK

KS

When thinking about how a sequenceof events leads to a certain outcome,it can be dicult to recapture all the mile-stones. However, before the federal healthcare bill became law, I remember pickingup the July 2009 issue ofInside ALEC andreading an article about Arizona State Rep.Nancy Bartos eorts for a Healthcare Free-

dom Act she had sponsored. Her argu-ments were compelling; I had no doubtKansas needed this same type of legislation.

Given the trajectory of the left-wingmajority in Congress at the time, it wasbecoming clear there was an urgent needfor Kansans to enact a constitutionalamendment so citizens could continue toact freely concerning their own health caredecisions. In addition, state sovereignty, asguaranteed by our U.S. Constitution, madeit apparent that it was a primary duty ofstate legislators to protect the liberty of the

people of Kansas in regards to their healthcare.

After serving in the House for twoterms, I was fortunate to have two StateRepresentatives, Brenda Landwehr andPeggy Mast (both ALEC members), as goodfriends. Both recognized the pressing needfor legislation that would preserve the free-dom of Kansans to make their own healthcare choices. Landwehr was also the Chair-man of the House Health Committee.

We put together a bus tour and traveledaround Kansas, announcing our intent, as

well as giving other legislators an opportu-nity to jump on board and allowing Kan-sans to voice their support. We empha-sized that our government didnt grant usour rights, it recognized we were born withthose rightsand it recognized we have aright to pursue health care in the way wesee fit. Our liberties come from God andnot the government. It was a monumentalsuccess and gave us a great deal of encour-agement. Eventually, via our website,

www.kansashealthcarefreedom.com,and petitions, we collected over 2,000 sig-natures in support of our eort, with ALECsChristie Herrera helping and encouragingus all along the way.

In the 2010 session, the Health CareFreedom Amendment passed easily out ofthe House health committee, but it failedon the floor by nine votes. The hurdle washigh, as a Kansas constitutional amend-ment needs two-thirds vote by each House

before it can be placed on the ballot forvoters.

In the other chamber, Kansas Senateleadership did everything possible to pre-vent the proposed constitutional amend-ment from coming to the Senate floor fora vote through a series of maneuvers meantto kill the bill. It was referred to two com-mitteesone committee passed it withouta recommendation, and the second com-mittee referred it to a subcommittee, andfinally the second committee chairmanvoted against the legislation to cause a tievote, which resulted in the failure of the

measure so the legislation could not makeit to the floor for a vote.

To illustrate the voting gymnastics dis-played by some Senators to avoid any kindof public scrutiny on the legislation, whenone was questioned by a reporter abouthis committee vote against the health carelegislation, he said he had really meant tovote for it, but was not thinking clearly. Itwould have been comical if it hadnt beenso serious!

But as Texas Gov. Rick Perry in his boFed Up! points out, No issue is more crical for the defense of freedom and tAmerican way of life than the preservati

of our free-market health care system, aI was determined to try again in the 20

session. As I witnessed the fallout from federal health care reform law, I was covinced more than ever that this debshould not end. We need to advance heacare policies that work instead of daming what good health care we do have our country.

The 2010 November election put moconservatives in the Kansas House of Reresentatives. Landwehr and Mast guidthe Health Care Freedom Amendmentvictory early in the 2011 session, cleari

the two-thirds threshold by seven votes16 votes more than the previous year. Telection had made a huge dierence.

The Senate was not up for re-eltion, so the left-wing vs. right-wing raremained the same. Yet even though Seate leadership referred the proposed contutional amendment to just one committhis time, the committee chairman waituntil the end of session to announce tocrowded committee room that he saw

FOCUS REPORT

Health Care Freedom in Kansas

We emphasized that our government

didnt grant us our rights, it recognized we

were born with those rights...

STATE SPOTLIGHT


7/20

need to work the bill until the 2012 ses-sion, since it would not be on the ballotuntil 2012.

However, during the session, I hadbeen greatly inspired by Judge Vinsonsruling declaring the entire federal healthcare law unconstitutional. While it is obvi-ous no one knows how the U.S. SupremeCourt will rule in this case, there was astrong likelihood that a Kansas law mightfactor into the courts determination, espe-cially since Kansas is a party to the Flor-ida lawsuit. So I amended the language ofthe Health Care Freedom Amendment intoan existing prescription health care bill onthe Senate floor as the Kansas Health CareFreedom Acta law instead of a constitu-

tional amendment.It passed 26-10, but not before one

influential Senator stood up and said themeasure would send a misleading messageto Kansans substantive action was takenwhen instead, we have done nothing toprotect our rights. I answered the impactcould not be known, but what could beknown is that if we did NOT pass this legis-lation, we most certainly would have donenothing to protect our rights. The senatorvoted for the measure.

The bill has now been signed into law by

Gov. Sam Brownback, Kansas first conser-vative governor in more than half a century.We have a chance now for success.Our for-mer governors, Democrats Kathleen Sebel-ius and Mark Parkinson, would have vetoedthe measure instantly.

While work remains for a constitutionalamendment, Brownbacks signature signi-fies the culmination of two years of hardwork and an important step forward inthe defense of state sovereignty, and moreimportantly, the liberty and freedom ofKansans.

HEALTH & HUMAN SERVICES

Senator Mary Pilcher-

Cookcurrently

represents Kansas 10th

Senate District , and has

also served two terms in

the Kansas House of Representatives.


8/20

BY BENJAMIN DOMENECH

State policymakers face a complex task as they decide whether toimplement President Barack Obamas health care law. For thosein one of the 29 states currently mounting legal challenges to thelaw, the decision of how to proceed in the short-term is even morecomplex. They must decide whether to implement a series of bur-densome regulations and vague requirements even as their repre-sentatives in the courts argue that such implementation is done inobedience to an unconstitutional acta dangerous scenario, given

that implementing the law could undercut their states argumentsin court.

The pressing issue for most states is the challenge of the healthinsurance exchanges created under Obamas law, which mustbe submitted for approval to the U.S. Department of Health andHuman Services. Some policymakersmotivated by warningsthat if they do not set up their own exchanges, the federal gov-ernment will direct one which bypasses their authorityhaveattempted to find a middle path between compliance and resis-tance, adding pro-market or anti-abortion provisions to improvetheir exchanges.

This attempt to find a middle path is treacherous: it oers noprotection for future bureaucratic decisions, collaborates with

an unconstitutional framework, and risks undercutting the casebefore the courts. Policymakers would be wise to consider that anyexchange created to pass muster with U.S. Health and Human Ser-vices Secretary Kathleen Sebelius and the current regime of ruleswithin Obamas law will be fundamentally flawed.

No Flexibility Under Obamacare

President Obamas law mandated the creation of a statewideregulated insurance market, called an exchange, in all 50 states.To comply, each state must submit its exchange for a federal auditand review by January 1, 2013.

The date is an intentionally political one: Each exchange must

be approved by the Department of Health and Human Services,but only after the 2012 election, when Washingtons position onhealth policy may have changed dramatically, and when the polit-ical fallout from a negative review of a state exchange would bevery limited.

Some governors have pushed forward on developing theexchanges in advance of the 2013 deadline, despite the pendicourt cases and intervening election. In states like Mississippi, creation of an exchange would translate to 76 percent of the peobeing eligible for health care subsidized by other taxpayers.

Beyond the redistributionist subsidies, any exchange creaunder Obamas law will have to be designed to pass a series of tethat are fundamentally anti-market and anti-consumer, setting stage for never-ending bureaucratic regulation. State policymaers are kidding themselves if they believe developing an exchan

by the 2013 deadline will protect them from federal governmeinterference. On the contrary, the states creation of an exchanwill merely serve as an avenue for further regulation while sing the federal government an organizational and administratheadache.

State Costs and Subsidies

It is also likely most estimates of state costs for setting these exchanges are on the low side. As further study is givenObamacares system of subsidized care, a picture is emerging ofadministrative nightmare that virtually ensures gaps in coverafor millions of Americans and additional costs for states.

A study published in Health Aairs recently by Harvard Pfessor Benjamin Sommers and George Washington University Pfessor Sara Rosenbaum found Obamas system will force millioof adults and their families to move back and forth between Micaid and state exchanges over periods of just a few months.1 Thestimate more than 35 percent of adults with family incombelow 200 percent of the federal poverty level will experiencechange in eligibility within six months, and 50 percent will expeence a change within one year. Citizens will move back and forbetween Medicaid and the exchanges at a level which will dramically increase the administrative costs for states.

Obamas plan also expands subsidies to cover those wincomes up to 400 percent of the federal poverty level (FPL), c

ating a nationalized subsidy regime under which, according to nonpartisan Washington think tank e21, a family of four earing just below $88,000 [400 percent of FPL] will receive abo$5,000 in annual subsidies to purchase insurance in 2016. Onthat threshold is crossed, the subsidy immediately drops to zero

ALEC POLICY FORUM

State Insurance Exchanges:

The Case Against Implementation

1Chris Fleming, Frequent Churning Predicted Between Medicaid and Exchanges, Health Affairs Blog, February 4, 2011. http://healthaffairs.o

blog/2011/02/04/frequent-churning-predicted-between-medicaid-and-exchanges/2 Obamacarewatch: Exchange & Premium Subsidies. http://www.obamacarewatch.org/primer/exchanges-and-premium-subsidies


9/20

This handout-based approach makes pursuing a raise or find-ing a better job a very bad choice for low- and middle-incomehouseholds. It gives families a powerful disincentive to pursueadvancement and risk losing their subsidies. Any exchange createdunder Obamacare will be unable to avoid this subsidy problem.

What About a Future Exchange?

An exchange created outside Obamacares provisions couldprove useful for some states, but this is not an option under thecurrent law. While some organizations continue to push for thecreation of exchanges, arguing that the potential exists for a moremarket-based option, the reality is that outcomes in Utah (the soleexisting exchange other than Massachusetts Commonwealth Con-nector) have thus far been less than stellar. While Utahs exchangewas intended to be a limited model, its lack of proven outcomesshows that states may have to go through several iterations to prop-

erly structure an exchange that works for their citizens.As John Graham of the Pacific Research Institute has argued

in a series of op-eds published across the country, if Obamacares

exchanges are created, it is likely a temporary approval from theObama administration would be followed by mandates pushingaside any market-friendly or other reforms. Virginia recently joinedseveral other states in passing a requirement banning the coverageof abortions by insurance plans operating within the exchange, atthe behest of Gov. Bob McDonnell. Yet what Gov. McDonnell andother legislators fail to recognize is that such provisions are mean-ingless: Sebelius, who controls both the approval phase and directsthe subsidies which flow through the exchanges, will ultimatelydecide whether Virginias health plans will cover abortions.

Resistance the Wisest Choice

While some governors are proceeding with the creation ofexchanges within Obamas law, others are wisely defying the feder-ally imposed regulation, such as Louisiana Gov. Bobby Jindal and

Florida Gov. Rick Scott. Both experienced veterans of health pol-icy, these governors, and those who have joined them in declar-ing opposition or vetoing exchange bills, recognize that the ram-ifications for resistance are few, while collaboration could beprofoundly negative.

As Louisiana Health and Hospitals Secretary Bruce Greensteinsaid in the course of announcing the rejection of Washingtons tax-payer funded grant for the purposes of exchange implementation,they are not about to take the blame for the inevitable future pre-mium hikes within Obamacares system: Envision an exchangewhich, if we were to run it, has the governors name on the top ofthe letterhead every time a premium increase is announced.

If state policymakers wish to pursue a more market-basedexchange in the aftermath of a decision, thats another matterentirely. But such an exchange will be possible only outside theregulatory confines of Obamacare and its raft of taxpayer subsidies.If policymakers proceed with the exchanges under the auspices of

Obamacare, they will be creating a near-permanent delivery mech-anism for massive subsidies and the imposition of market regula-tion by unelected Washington bureaucrats. By enshrining the rel-

evant taxpayer subsidies in lawand empowering the WhiteHouse to dictate their insur-ance market, policymakers willdeclare themselves as collabo-rators in the installment of anunconstitutional health careregime.

Any exchange set up underObamacares system is virtu-

ally guaranteed to become ananti-market force, designed to

please the bureaucrats more than the people. For reasons of prin-ciple and practicality, states should take only the bare minimumof steps legally necessary to investigate an exchange under Obam-acare. If ocials determine that political pressure requires them toproceed, they should work to ensure the inclusion of a sunset pro-vision to eliminate the exchange if repeal comes. But ideally, theyshould choose not to implement an exchange at all.


Benjamin Domenech is a research fel low

at the Heart land Inst itute and managing

editor ofHealth Care News .

Envision an exchange which, if we were to run

it, has the governors name on the top of the

letterhead...

2010 by the American Legislative Exchange Council. All Rights Reserved. Except as permitted under the United States Copyright Act of 1976, no

part of this publication may be reproduced or distributed in any form or by any means, or stored in a database or retrieval system without the prior

permission of the publisher.


10/20

ALEC IN FOCUS

Health care freedom remained a top pri-ority for legislators in 2011, as ALECsFreedom of Choice in Health Care Act wasintroduced in 35 states. ALEC state legis-lators have successfully worked to exposethe truth about the Patient Protection and

Aordable Care Act (ObamaCare) and fight

backone state at a time. The states aretriumphing over ObamaCares federal man-date. This year Kansas, North Dakota,Indiana and Tennessee enacted statutorymeasures prohibiting the individual man-date. Montana, Wyoming and Florida sentsimilar constitutional amendments to the2012 ballot. In addition, ALECs Freedom ofChoice in Health Care Act provided, in part,the legal standing for several of the plainti

states to pursue a Constitutional challengeto ObamaCare. ALEC filed an amicus briefin May to the 11th Circuit U.S. Court of

Appeals regarding the case ofState of Floridaand National Federation of Independent Busi-ness v. U.S. Department of Health and HumanServices. ALEC is proud to be the only statelegislative organization to submit a briefon behalf of state legislators in this land-mark challenge to Obamacare. This briefsupports the very principles of ALEC: lim-ited government, free markets and federal-ism. ALECs brief shows that ObamaCare

is incompatible with the U.S. Constitutio

enumeration of federal powers.Policy successes in 2011 mirror ALE

2010 work in mobilizing states agaia government requirement to purchhealth insurance. Last year, 42 states eitintroduced or announced ALECs Freedof Choice in Health Care Act. Eight sta(Virginia, Idaho, Utah, Arizona, GeorgLouisiana, Missouri and Tennessee) pasthe ALEC model in 2010 as a statu

States Triumph over Federal Mandate: Health

Many Oregonians are concerned about theimplications of the federal health care law and

the individual mandate. I believe Oregonians

should have the right to make their own

health care decisions, and I'm working to pass

legislation this session to protect our citizens

from the federal government's punitive health

care tax.

Representative Shawn Lindsay, Oregon

HB3226, Co-Sponsor

Never before in our history has thenational

government claimed to have the power to force an

individual to purchase a specic product. Texans and all

Americans have a fundamental right to make their own

decisions about their healthcare, and the Health Care

Freedom Act is about defending that precious right.

Representative Bryan Hughes, TexasHB203, Sponsor


11/20


and two states (Arizona and Oklahoma)

passed the ALEC model as a constitutionalamendment.

ALECs Freedom of Choice in Health CareActmodeled on the language of ArizonaProposition 101 (2008) and Arizona Prop-osition 106 (2010)protects the rights ofpatients to pay directly for medical services,and it prohibits penalties levied on patientsfor failing to purchase health insurance. Ifenacted as a constitutional amendment,

ALECs Freedom of Choice in Health Care Actwill help defend against the federal indi-vidual mandate and also prohibit a Cana-

dian-style, single-payer system, which leg-islators in some states have been advocatingeven before ObamaCare. If ObamaCare isrepealed, it will also prevent a state-levelrequirement to purchase health insurance.

ALECs Freedom of Choice in HealthCare Act, if passed by statute, can providea state-level defense against ObamaCaresexcessive federal power. Particularly, themeasure can provide standing to a state

participating in current litigation againstthe federal individual mandate; allow astate to launch additional, 10th-Amend-ment-based litigation if the current lawsuitsfail; and empower a state attorney generalto litigate on behalf of individuals harmed

by the mandate once it goes into eect in2014.

ALEC encourages all states to con-sider ALECs Freedom of Choice in HealthCare Act to protect its citizens from themost harmful aspects of the federalhealth reform law. For more informa-tion about ALECs health care freedominitiative, contact Christie Herrera [email protected].

edom Gains Momentum in 2011

In Pennsylvania, we currently have 1 in 6 citizens (2.2

million)receiving welfare benets, and PPACA will expand welfare

to 1 in 4, or nearly 3 million people, who will be on welfare.

Pennsylvania Medicaid already consumes 31 percent of the states

budget and is growing at nearly 12 percent a year, while revenues

have grown just 3 percent. This unsustainable, unaordable, and

unavoidable growth will continue as long as inexible federal

rules mandate state policies. Which is why, due to strong public

opposition to this federal law, I have introduced House Bill 42 that

protects the health care freedom of Pennsylvanians.

Representative Matthew Baker, PennsylvaniaHB42, Sponsor

This legislation was passed out of the Health &Aging Committee down partisan lines. Its clear

the House Democrats are fearful to take this

issue to the ballot. They know Ohioans dont

want this, and they know that if the people

choose, that theyll likely say no thanks.

Representative Barbara Sears, OhioHJR2, Co-Sponsor

States with Introduced Legislation

States with Enacted Statutory Measure

States with Encacted Constitutional Amendment

States with Amendments on the 2012 ballot


12/20

ALEC IN FOCUS

BY SPENCER HARRIS

Medicaid financing has been a con-tentious issue for many state legisla-tures, straining their budgets and their rela-tions with the federal government for manyyears. But the economic downturncou-pled with unprecedented levels of federalspending and federal constraints related toMedicaidhave brought the debate to theforefront in legislative sessions across thecountry.

Oered as a way to provide states withthe flexibility to deal with the rising costs,block grants gained traction in the pastnotably when pushed by President Reaganin the 1980s and the Republican Congressin the 1990s. Now they are being pro-posed again in the U.S. House by ChairmanPaul Ryan in his 2012 federal budget.

Another method for dealing with theunsustainable costs gaining momentumis the Health Care Compact. Both blockgrants and compacts will achieve state free-dom in Medicaid financing and structuring.

The Health Care Compact is an inter-state compact between two or more statesthat is then sent to Congress for ratificationas required by Article I, Section 10 of theU.S. Constitution. Once ratified, it becomesfederal law, superseding all previous fed-eral law.

The Health Care Compact currentlyunder consideration in a number of statesis a non-prescriptive compact that wouldallow member states to administer healthpolicy in whatever way the people andlegislature of that state decided was best.

For Medicaid, this means one state couldenact a free market subsidy program withcost sharing mechanisms, but another statecould create a single payer system.

The Health Care Compact addresses aneven more fundamental issue than healthcare financing and policy. It has the poten-tial to reestablish the constitutional rela-tionship between the states and federalgovernment.

Since 1965, the Medicaid program andthe numerous proposals to fix it have orig-inated in Washington. Since its inception,this Great Society entitlement programhas flowed from Washington down to thestates.

This is where the core dierencebetween block grants and the Health CareCompact is found, and it is largely a phil-osophical dierence. The block grant isfinancing reform, while the health carecompact is governance reform. The Health

Care Compact is about who decides. Is

health care policy to be decided by a Wash-ington bureaucracy or by the state and itscitizens? The Health Care Compact is anopportunity for citizens to regain controlover their own health care decisions andhow their tax dollars will be spent.

Block grants, for all their benefits, stilloriginate in Washington. They still perpet-uate the relationship between the federalgovernment and the states in health carethat the nation has come to accept over thepast seven decades. It is this relationship

that leaves the states as the partner contin-ually subjected and submissive to the polit-ical whims of the federal government. It isthe Mother, may I? game played out on agrand scale.

The Health Care Compact presents anopportunity for states to rewrite their rolein health care policy and reap the benefitsof government reform for decades to come.

Federalism causes state governments

to compete for citizens by enacting pocies that encourage growth and freedomlimited government is necessary to growand freedom which is why federalism, nature, limits government.

Finance reform solves the problemunsustainable programs, but governanreform begins to roll back decades of predent that has wrecked our federalist stem. To be sure, the Texas Public PolFoundation supports Chairman Ryaeorts to reform Medicaid, but the comp

oers hope for a new future for state a

federal relations on top of Medicaid reforGovernments at every level must re

ize that individuals empowered to madecisions in their own interest is the kto reforming health care. The Health CaCompact will accelerate this process so tindividuals can once again be free to goern their own health care.

Compacts: The Key to Health Reform

Finance reform solves the problem of

unsustainable programs, but governance reform

begins to roll back decades of precedent that

has wrecked our federalist system.

Spencer Harrisjoine

Texas Public Policy

Foundation in 2010 a

a Health Care Policy

Analyst . His research

focuses on identifyin

patient-centered, free market solution

for Texas health care challenges.


13/20


BY MICHAE L F. CANNON*

Many supporters of the health law arelamenting how the nickname Obam-aCare has achieved wider purchase thanthe laws ocial title. More egregious,though, is how supporters have successfullymisbranded ObamaCares health insuranceregulations as consumer protections.

In anticipation of the House vote torepeal ObamaCare, for example, threeObama cabinet ocials warned HouseSpeaker John Boehner, R-Ohio, about the

consequences of eliminating the laws con-sumer protections.

Major media outlets routinely playalong. The New York Times reported,Many of the laws consumer protectionstake eect [January 1]. Health plans gener-ally must allow adult children up to age 26to stay on their parents policies and cannotcharge co-payments for preventive servicesor impose a lifetime limit on benefits.1

Other consumer protections alreadyin place limit the percentage of reve-nues insurers can spend on administrative

expenses and prohibit them from turningaway children with pre-existing conditions.

Who could object to such rules? As ithappens, an awful lot of people.

These supposed consumer protec-tions are hurting millions of Americans byincreasing the cost of insurance, increasingthe cost of hiring and driving insurers outof business.

At the same time Secretary of Healthand Human Services Kathleen Sebel-ius was threatening to bankrupt insurerswho claim ObamaCare is increasing pre-

miums by more than 1 percent, her ownemployees estimated that one of the lawsregulationsthe requirement to purchase

unlimited annual coveragewill increasesome peoples premiums by 7 percent ormore when fully implemented. A Connect-icut insurer estimated that just the provi-sions taking eect last year would increasesome premiums by 20-30 percent.

Such mandates force consumers todivert income from food, housing, and edu-cation to pay for the additional coverage.That can leave consumers worse o, eventhreaten their health. They can also forceemployers to reduce hiring, leaving some Americans with neither a job nor health

insurance. This reality led McDonalds toseek a waiver from the unlimited annualcoverage mandate, among other rules.

The ban on discriminating againstchildren with pre-existing conditions hascaused insurers to stop selling child-onlypolicies in dozens of states. The depen-dent-coverage mandate was cited as one ofthe reasons spurring a Service EmployeesInternational Union local in New York Cityto eliminate coverage for 6,000 dependentchildren.

In 2008, Congress passed a similar

mandate that supporters said would expandcoverage for mental-health and substance-abuse services. Instead, that mandatespurred the Screen Actors Guild to elimi-nate mental-health coverage for 12,000 ofits lower-paid members. It had the sameeect on 3,500 members of the Chica-gos Plumbers Welfare Fund, and 2,200employees of Woodmans Food Market in Wisconsin. Other employers are curtail-ing access to mental-health services thanksto this mandate, and some insurers havestopped selling such coverage altogether.

The list goes on. ObamaCare nowforces insurers to spend no more than 20percent of revenues15 percent for large

employerson administrative expenses.Similar state laws have done nothing toslow the growth of premiums.

ObamaCares rule spurred Princi-pal Financial Group to stop selling healthinsurance before it even took eect, leav-ing nearly 1 million consumers to findnew coverage and threatening their con-tinuity of care. Experts expect more con-sumers to suer the same fate. This sup-posed consumer protection also punisheseorts to reduce fraud and improve qual-ity by reviewing claims. Thus, in additionto increasing premiums, it may exposepatients to unnecessary and even harmfulservices.

Consumers, insurers, employers,unions and state ocials are begging forprotection from these so-called protections.

Since April 2011, Sebelius has so far issued1,372 waivers2, which raises the question:if these were really consumer protections,why waive them?

These rules may end up helping some-body, and that should count in the lawsfavor.

Yet rules that were supposed to pro-tect children have stripped sick kids oftheir health insurance and made it harderfor parents to find coverage for kids whomay soon fall ill. Other rules have reducedwages and discouraged hiring amid high

unemployment. Just as the mental-healthmandate is ousting vulnerable patientsfrom their rehab or therapy and cutting otheir meds, ObamaCares voluminous man-dates are threatening even more Americansaccess to care.

Calling these rules consumer protec-tions implies that the people harmed dontmatter, or one has clairvoyance to knowthat the benefits outweigh the costs.

ObamaCare supporters should callthese supposed consumer protections whatthey are: regulations that can hurt even

more than they help.

Can We Stop Calling Them

Consumer Protections Now?

*This article was originally published by Kaiser Health News on Jan. 10, 2011. Kaiser Health News

is an editorially independent news service of the Kaiser Family Foundation, a nonpartisan health

care policy organization not aliated with Kaiser Permanente. See: http://www.kaiserhealthnews.

org/Columns/2011/January/011011cannon.aspx1http://www.nytimes.com/2010/12/14/health/policy/14impact.html2 http://cciio.cms.gov/resources/files/approved_applications_for_waiver.html

Michael F. Cannon is

director of health policy

studies at the Cato

Inst itute and co-author

of Healthy Competition:

Whats Holding Back Health

Care and How to Free It.


14/20


15/20

The preservation of individual liberty isat the heart of the 26-state lawsuit chal-lenging the constitutionality of the fed-eral Patient Protection and Aordable CareAct. In a narrow sense, the case will turnon discussions of the scope of the Com-merce Clause and of the Tenth Amend-ment, which reserves power to the States.But those structural protections embodiedin the Constitution are a means to the endof preserving our freedom. As James Madi-son put it in Federalist 51, through our fed-eral system of government, a double secu-rity arises to the rights of the people.

Much of the attention devoted to the

states lawsuit has rightly focused on the Acts mandate that every individual pur-chase health insurance (or have it pur-chased for them). Whether looked at asa matter of the constitutional text andfirst principles, or alternatively under theSupreme Courts case law, this unprece-dented requirement goes well beyond thescope of federal power and is unconsti-tutional. The reason is simple: Congressspower to regulate commerce, while quite

broad, is not so broad as to authorize thefederal government to compel an indi-

vidual to engage in commerce in the firstinstance. As federal District Court JudgeRoger Vinson ruled in his order strikingdown the Act, the Commerce Clause doesnot empower Congress to regulate inactiv-ity. And that is a good thingfor if Con-gress has the authority to force an individ-ual to purchase health insurance, then itnecessarily has the authority to require usto engage in whatever commerce the fed-eral government thinks beneficial to somegreater good. There is simply no limit-ing principle to the constitutional theory

underlying the Act.The Act further infringes our liberty

by coercing the States radically to expandtheir Medicaid programs, requiring spend-ing over which the citizens of the Stateshave no eective control. Since at least the1988 decision of South Dakota v. Dole,the Supreme Court has recognized thatthe Constitution limits the federal govern-ments authority to use its spending poweras a means of coercing the States. Florida

already spends approximately $20 bil-lion on Medicaid, nearly 30 percent of ourstates entire budget, and we have nearlythree million people on the Medicaid rolls.The Act would force the States to dramati-cally expand the program, at a cost to Flor-ida alone of over $1 billion per year, or endparticipation in a program upon whichso many rely. Opting out is not a feasi-ble optionit would in reality be ruinous.Under these circumstances, if the Consti-tution limits Congresss spending power atall, then surely the Act is on the unconsti-tutional side of the line.

The States involved in the healthcarelawsuit have done everything within theirpower to have these critical issues resolvedas quickly as possible. With an expeditedschedule and oral argument in the 11th Cir-

cuit Court of Appeals on June 8, we hopeto have our case before the U.S. SupremeCourt by fall.

It is no exaggeration to say that theStates case ultimately is about preservingthe federalist structure of American con-stitutional government, which the Found-ers viewed as the greatest guarantor of ourpersonal freedom. Judge Vinson himselfleft no uncertainty about the principles atstake: It is dicult to imagine that a nationwhich began, at least in part, as the resultof opposition to a British mandate giving

the East India Company a monopoly andimposing a nominal tax on all tea sold in America would have set out to create agovernment with the power to force peo-ple to buy tea in the first place. If Congresscan penalize a passive individual for fail-ing to engage in commerce, the enumera-tion of powers in the Constitution wouldhave been in vain for it would be dicultto perceive any limitation on federal power,and we would have a Constitution in nameonly.

Preserving the FederalistStructure of AmericanConstitutional GovernmentBY THE HONORABLE PAM BONDI

Pam Bondi is

attorney general

for the State of

Florida, and is

the lead plaintiff

in Florida v. U.S.

DHHS, the mult i-state lawsuit challeng-

ing the federal health law.

ALEC IN FOCUS: HEALTH & HUMAN SERVICES


16/20


As Executive Director for the Louisi-ana Seafood Promotion and MarketingBoard, I often get asked by members of thepublic and media about how our seafoodindustry is doing and is the seafood safe?

The truth is that yes, it is safe and there

is plenty of Louisiana seafood available,but people have a dicult time believingthat and I am not surprised. Perception,unfortunately, is a reality for many. Andafter months of watching oil flow into ourbeautiful gulf waters people are concernedand dont know who or what to believe. Ican tell you though, that there is no otherindustry that takes more pride in the prod-uct they serve than a Louisiana fishermen.They were the first in line to demand thatthe federal and state agencies begin testing

of Louisiana seafood following the gulf oilspill. Since April 22, 2010, just one dayafter the gulf oil spill there has been ongo-ing unprecedented testing of our seafood.

Scientists from at least 6 dierent agen-cies are testing our Louisiana seafood. On afederal level there is the National OceanicAtmospheric Administration (NOAA), theU.S. Food and Drug Administration (FDA),Department of Environmental Quality(DEQ) and then on a local level there is theLouisiana Department of Wildlife and Fish-

eries, the Louisiana Department of Healthand Hospitals and Louisiana State Univer-sity. These agencies have been conductingthousands of tests on shrimp, crab, oysters,finfish and the waters in which they live.Those tests all say the same thing, our sea-food is safe.

It is so safe in fact, that FDA commis-sioner Margaret Hamburg has called it Themost tested food in the world. In addi-tion to testing that goes on in labs there areseveral layers of other individuals who are

protecting consumers. First are our fishmen, who would never put a piece of sefood on the market if they thought it wgoing to harm a consumer. Those fiermen sell directly to the processors wwork with our world renowned chefs ensure that only the highest quality seafois served to their guests.

Being a Louisiana fisherman has beincreasingly dicult over the past seveyears. Between the Hurricane season2005, which produced several major hu

ricanes, including Hurricane Katrina ain 2010, the gulf oil spill. These have bechallenging times for sure. One thingcertain though; you will never meet somone with more perseverance and love their work than a Louisiana fisherman.

We are excited that ALEC is choosto hold its annual meeting in New Orleaand I am glad that you will be able to sfor yourself the reality, which is that NOrleans and all of Louisiana is open business.

Our restaurants are full of locals a

tourists enjoying raw oysters, boiled crafish, Shrimp Creole, fried soft shell craTrout Almandine and dont forget the agator! I hope that you will come to NOrleans and experience our fresh, locwild caught Louisiana seafood, our cultuand our people.

Sincerely,

Ewell Smith

Executive DirectorLouisiana Seafood Promotion and

Marketing [email protected]

Experience the Safe, Fresh,Local Louisiana Seafood!

Shrimp on oregano grits, courtesy of Chef Chris Lusk, Cafe Adelaide in New Orleans


17/20

BY SEC. SCOTT A. ANGELLE

We have reached a time in our nationshistory in which we must come tothe realization that energy policy in Amer-ica needs to change with the same speed asour changing resource supply.

In June 2003, only eight years ago, Fed-eral Reserve Chairman Alan Greenspan tes-tified before the United States Senate Com-mittee on Energy and Natural Resources. Heexplained that there was not enough natu-

ral gas in the United States and he was con-cerned about the impact that would haveon our economy. He insisted that Americamust find ways to increase our imports ofliquefied natural gas (LNG).

Shortly thereafter, America set out toreview options and opportunities for lique-fied natural gas (LNG) importation throughour coastal states. Louisiana was one of thestates that went through the rush of plansand permitting in getting some of thosefacilities sited.

Then, in 2008 with improved technol-

ogy in horizontal drilling, shale plays cameto the forefront of national discussion withthe Barnett Shale in Texas, the HaynesvilleShale in Louisiana and the Marcellus Shalein Pennsylvania. We now know that thoseshale plays represent a 100 year supply ofnatural gas right here in America.

This new ability to reach natural gasthat was once thought impossible meantthat we as a country must absolutely shat-ter our previous thinking about Americasdomestic energy supply. Weve come froma time in which the top economist on the

planet was testifying about our lack of nat-ural gas, to a new era with an abundantsupply of natural gas.

Unfortunately, weve seen that the failedenergy policy of this nation is wasting anamazing opportunity. While the energyindustry has explored for natural gas, dis-covered it and can supply it, our nation hasnot fully mobilized to promote the use ofan energy source that is proven and plen-tiful. Instead, the focus has been directed

toward devoting resources to promotingrenewables that may be a generation awayfrom providing real support to our energyneeds and our economy.

In the meantime, when we had no work-able alternatives as a country, we turnedagain to oil and the industry responded.

At one time, there was a predictablecorrelation between the price of natural gasand oil. We now see in this world economyeven that has changed. From 2000 to 2008,oil averaged trading at an 8 to 1 ratio vs.

natural gas. Now that figure is almost 25to 1.

For transportation, I believe naturalgas is the way forward. Its aordable, itsavailable and its right here in America. A

secure, sustainable fuel supply is the crit-ical point on which our economy pivots.It can be the fuel that provides energy andsecurity until renewable sources are ready.

Nationwide, a gallon of gasoline costsmore than $1.50 more than its equivalentin compressed natural gas for public use astransportation fuel.

If you look to the Compressed NaturalGas station that recently opened in Boss-ier City, Louisiana the going price for theequivalent of a gallon of gasoline is $1.85.

Think about savings for American fami-lies by keeping an extra $1.50 per gallon intheir pocket at each gas station visit. Imag-ine the savings that every American fam-ily could enjoy if our nations energy policyadopted a wider and broader use of natu-ral gas.

We used about 140 billion gallonsof gasoline in our country last year. If wecould replace even 30 percent of that withnatural gas that would mean a savings of

$60 billion in energy costs for our econ-omy. It would also mean less dependenceon foreign oil.

I am reminded that since 1972, ourcountry has experienced six recessions.Prior to almost all of them, the price of oilsaw a sustained increase over the previousyear. A major increase in fuel prices hasalmost always been an indicator of a majorrecession or downturn in our economy.That hurts everyone in the country.

Right now we stand at the gates of what

can be called the Golden Age of NaturalGas in this country. Natural gas is the bestopportunity for us to gain control of sky-rocketing energy costs. It allows us to bebetter stewards of our environment. Natu-

ral Gas has a smaller carbon footprint thanoil. It creates American jobs, but most ofall it helps the American economy.

I invite all of you to New Orleans, Loui-siana this August to the 2011 Annual Meet-ing. Spend some time dancing to our music,tasting our delicious cuisine and experienc-ing our unique joie de vivre while learningmore about a new way to fuel America andhow you can be a part of Americas strongenergy future.

Scott Angelle is

currently serving

Louisiana as

Secretary of the

Department of

Natural Resources

and as the point person for federal oi l

and gas permitt ing issues.


Seismic Shift in Resource Availability Must BeFollowed by Seismic Shift in Energy Policy

Instead, the focus has been directed toward devoting

resources to promoting renewables that may be a

generation away from providing real support to our

energy needs and our economy.


18/20

SPECIAL REPORT: PUBLIC SAFETY & ELECTIONS

BY MICHAEL HOUGH

Across the nation, a number of statesare grappling with the question of howto safely and aordably release individu-als on bail pending their trial. The Eighth Amendment to the U.S. Constitution pro-hibits excessive bail, which has generallybeen interpreted to mean, in most cases,when individuals are arrested they will begiven the opportunity to post bail. Shouldtaxpayers be responsible for criminal defen-

dants that can aord to post their own bail?When the government posts bail and thedefendant fails to show up for court, doesthe government have the resources to findthe fugitive or front the bill for the forfeitedbonds?

The ultimate question for states is howmuch should the government be involvedin the bail process? In some areas the pri-vate sector is used exclusively to releasepeople, in other areas the private sectoris prohibited and the government runs itsown bail operation. With many states fac-

ing deficits, some state lawmakers are look-ing at reforming this process.

A handful of Florida legislators, like Sen.Ellyn Bogdano and Rep. Chris Dorworth,are working to cut their states bloated pre-trial release budget, which costs taxpayers$30 million a year. Their legislation wouldonly allow the government to release thosewho are ruled indigent and the private-sec-tor would release the rest.

This legislation makes a simple state-ment that taxpayers should not have tosubsidize the release of financially-able

defendants.Here are some interesting statistics

about the problem with government-run

bail programs in Florida: Pretrial release, a government alternative

to commercial bail, was created in Bro-ward County in 1988 with an $88,000grant. Today they have a $20 millionbudget and 214 employees. Despite thefact the arrest rate has decreased in Bro-ward County, the government agencycharged with releasing people from jailhas constantly increased its budget.

A report released by Floridas Oce ofProgram and Policy Analysis & Gov-

ernment Accountability found that pro-grams like Broward Countys cost tax-payers about $1,400 per defendant.

A Mason Dixon poll conducted onMarch 5, 2011 found that 75 percentof Floridians felt if a criminal defen-dant can aord to pay their own bailfor release from jail, they should not beallowed to be released using tax dollars.Across the country in Colorado, legis-

lation was introduced that one local news-paper accurately dubbed among the worstideas of the year. Senate Bill 186 would

allow local government jurisdictions to setup their own bail operations and collect arefundable ten percent deposit bond.

This legislation will put Colorado on apath to end up like Oregon, which oper-ates with only a government-run bail oper-ation and the consequences there havebeen disastrous. In fact, Oregon has nowbecome a safe haven for fugitives because itfalls to the states limited resources to roundup fugitives.

The Portland Tribune recently quotedClatsop County District Attorney Josh Mar-

quis,1 who said, He fields telephone callsfrom out of state when a felony defen-dant has been picked up and local police

discovered he or she had an outstandiwarrant for failure to appear in ClatsCounty court. Marquis says he tells thoout-of-state ocers to let the defendant There isnt enough money in the state buget to send someone to bring the oendback. The same is true for most other stataccording to federal ocials.

According to the Portland Tribune, tpayers in Oregon are owed $81 millionforfeited bonds for defendants who failto show up in court.2 Similarly in the C

of Detroit, fugitives have failed to pay $million in forfeitures, and in Philadelphfugitives owe the City a staggering $1 blion in unpaid forfeitures. Unfortunateoverwhelmed and often underfundpolice departments do not have the abilto chase down the thousands of fugitivthat are produced due to the lack of supvision by government-run bail.

Conservatives believe in the ecienof the free-market system and would nbe surprised to learn the private-secbail industry does a better job of sup

vising criminals while on bail and doesat less cost to taxpayers than the goverment. In most states today a public/pvate bail hybrid exists where the commcial bail industry releases some individuand government pretrial agencies relethe others.

Private-sector bail agents, routintravel across the country to grab fugitivso that the bail company wont have to ffeit the bond. Eorts like these by the pvate sector help to augment those of polby reducing the fugitive rate and there

increasing public safety.

Safe and Aordable Pretrial Release an Issue inMany States

1 Welcome to Oregon: Haven for bail jumpers Oregons restrictions keep bounty hunters from

stalking bonded prey By Peter Korn The Portland Tribune, Apr 21, 2011 (http://www.portlandtri-

bune.com/news/story_2nd.php?story_id=130333325714145500)2 Just Funny Money: Oregon is Owed $81 million in bail; does anyone care? April 14, 2011

(http://www.portlandtribune.com/news/story.php?story_id=130273082913710500)

Michael Hough is a

Resident Fellow in

Public Safety at ALE


19/20


20/20

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