King v. Burwell: A Quick Preview

Last month, constitutional law expert Josh Hawley visited with Show-Me Institute supporters to discuss a wide array of health care policy issues. While he was with us, he offered some great insights into this Wednesday’s King v. Burwell oral arguments. If you can set aside about 45 minutes, watch the video of the whole event; you’ll be glad you did.

If you’re short on time, however, the case deals with what happens when a state declines to set up an insurance exchange under Obamacare, forcing the federal government to do so instead. Here’s the big question in King: Does the Affordable Care Act (ACA) block federal subsidies from going to insurance plans purchased in government exchanges that were not, as the law says, “established by the State”? If the answer is yes, it could simultaneously take subsidies away from millions of insurance plans and protect millions of taxpayers from the law’s mandates. It’d be a body blow to the law.

Why would Congress condition subsidies on states building their own exchanges? The answer is reasonably straightforward: Congress didn’t want the burden of creating exchanges to be on the federal government—that is, Healthcare.gov—and thought offering the subsidy as a carrot would get states to do the heavy lifting. Congress never thought the federal government would be running the exchanges for basically two-thirds of the country, as it’s doing today. Healthcare.gov’s rollout disaster was part and parcel of this miscalculation by Congress.

Supporters of Obamacare now contend the “established by the State” language was a drafting error, but there is lots of evidence that runs against that claim. The state exchange “carrot” strategy had appeared in prior, contemporaneous bills that were combined to form the ACA—suggesting that at least some legislators were well aware of the system they were creating. In fact, in the years that followed, Obamacare architect Jonathan Gruber famously repeated what the consequences of states not building their own exchanges would be:

With most states declining to create their own exchanges, the Internal Revenue Service then wrote rules that would extend the federal subsidies not only to exchanges “established by the State,” but also to federal exchanges. The problem is that since the federal subsidies are the basis for penalties that, thanks to the IRS, would suddenly apply to tens of millions of Americans in states that didn’t create exchanges, those subsidies could be an illegal tax. Thus, we have the King litigation.

After Wednesday’s oral arguments, we’ll likely see a decision handed down on the case sometime this summer. How will it turn out? We’ll keep you posted.

Do User Taxes Pay for Highways?

The Post-Dispatch recently published an op-ed from the Center for America Progress (CAP) that argues that all forms of transportation, including highways, are highly subsidized. The article specifically states that 46 percent of Missouri’s major roads do not pay for themselves. Because all modes are subsidized, the author suggests Missouri should stop dedicating road user taxes to highways. This would allow the state to “balance” its transportation spending, namely by spending more on transit. But if we compare highways to transit, there is no balance either in terms of importance to Missouri’s economy or the amount of public subsidy.

In terms of sheer importance to the state economy, there is no contest between the Missouri state highway system and transit. The state highway system carries virtually all cross-state traffic, most commuters, and $711 billion of freight annually. Transit carries a tiny sliver of commuters in the state’s largest cities. Even in Saint Louis City and County, where the state’s transit network is most dense, less than 5 percent of commuters use transit.

What of subsidies? In 2013, the largest source of non-user funding the Missouri highways received was from the now chronically underfunded federal highway trust fund. In that year, Missourians sent the federal government about $877 million in road user funds and got back about $938 million to spend on highways. That’s a $66 million subsidy. Add in local spending and other small sources of non-user fees, and Missouri’s subsidies for all highways is around 10 percent.

How, then, can CAP claim that 46 percent of major highways do not pay for themselves? First, the study CAP issued broke highways and arterial roads into sections, which may not be an appropriate way of measuring the cost-effectiveness of highways. One should note that, on this measure, 54 percent of the system either broke even or was in the black (36 percent). Second, CAP’s study does not look at all forms of indirect user fees, including permit fees and other non-fuel taxes. Using incomplete data from the FHWA (which counts bonds and reserves that may be based on user fees as non-user revenue), At most, 24 percent of Missouri’s highway spending is not derived from user fees. That means, even with no tolling and the fifth lowest gasoline tax in the nation, user fees manage to pay for at least 76 percent of highway costs.

With transit in Missouri, taking 2013 as an example, fares only covered 16 percent of total costs. In years with major construction, this number falls below 10 percent. And while CAP claims 46 percent of highway segments are in the red, every segment of Metro, including MetroLink, is deep in the red. The best bus routes (counting only weekdays in Metro’s highest ridership months) recover 82 percent of its operating costs from fares. Most routes perform much worse, with a third of all routes receiving subsidies in excess of 80 percent of their operating costs. The numbers are no better in Kansas City.

Comparing the systems, it is clear that highways could be paid for entirely with user fees, especially if rigorous cost-benefit analysis is used to evaluate new highway projects. We argue for this all the time. Transit is a different story. It would be essentially impossible for Metro to break even using fares, which would have to quintuple in order to cover just its operating costs. As that would make a reduced monthly pass $195 and a regular pass $390, it is safe to say people would stop riding Metro altogether before it broke even.

CAP essentially would have Missouri take user revenue from the system virtually all Missourians use and depend on in order to give more money to a system that very few use despite incredible subsidies. CAP’s plan is fiscally irresponsible and endangers the future of transportation in Missouri.

Study Reveals Gains in Four-Year Grads, Community College Doesn’t Fair as Well

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Last month, President Obama unveiled a plan to make two-year community college “free and universal” for all. Show-Me Institute Distinguished Fellow James Shuls was quoted by St. Louis Public Radio, “To simply say we’re going to give away free community college sounds better than it actually is. You’re not pulling community college out of a hat, like a rabbit that a magician’s pulling out. Somebody’s paying for it.”

In Missouri, high school students already are able to receive subsidized community college. The A+ Scholarship Program incentivizes high school students to perform tutoring hours, to maintain a record of good citizenship, and to graduate with a GPA of 2.5 or above. In exchange, students attend community college “for free.” The program cost the state $30.4 million in fiscal 2014, but is community college worth the cost for Missouri taxpayers?

The National Student Clearing House Research Center looked at six-year completion rates for students across state lines in both two-year and four-year institutions. The research center’s findings differ from other studies in that students who transfer to another institution in or out of state are counted in the home state’s graduation rate. For Missouri, these new data boost the total completion rate for students who start at four-year institutions from 39.24 percent to 63.17 percent. This is significantly higher.

For students who start at community colleges and finish elsewhere, the increase in completion rate is less drastic. The data below show the six-year outcomes for students who start at two-year public institutions in Illinois, Kansas, and Missouri.

State Total Completion Rate Finished at Starting Institution Finished at Different 2-Year Finished at Different 4-Year Subsequent Completion at 4-Year Total 4-Year Completion Still Enrolled at 2-Year Not Enrolled Anywhere
Illinois 43.81 29.69 3.44 10.67 9.31 19.98 15.44 46.76
Missouri 39.87 24.24 5.73 9.90 7.92 17.82 14.82 45.31
Kansas 47.87 27.60 4.14 16.13 9.08 25.21 16.02 36.12

The completion rate for students who start at two-year institutions in Missouri is less than 40 percent. Only 17.82 percent of students starting at two-year community colleges complete four-year degrees. After a six-year period, a little over 45 percent of community college students were not enrolled anywhere.

Similar to other states, Missouri’s community colleges do not seem to be successful at retaining students or preparing them for four-year degree programs. Why should taxpayers spend more? Because as Shuls pointed out, “free community college sounds better than it actually is.”

VanLoh Just Wants a New Terminal

You don’t have [all the information] yet. We don’t even have it yet. I know what I want because I want a new airport.

With those words at Thursday morning’s Northland Regional Chamber of Commerce meeting, Aviation Department Administrator Mark VanLoh nicely summed up the reason that Kansas City taxpayers have been embroiled against their will in a discussion about building a $1.2 billion new terminal: He just wants it.

VanLoh has been criticized for his clumsy public campaign for a new terminal. And now, perhaps as part of a new approach to getting what he wants, he is revising history. At Thursday’s meeting, he clearly gave the impression that the airlines had to be dragged to the negotiation table.

What the 2013 [plan] did . . . was bring the airlines to the table because they saw something in Kansas City. Something was going to happen and they wanted to be part of it. And we welcome them to the table; we are meeting to this day with the airlines. I know the mayor’s Terminal Advisory Committee recommended a new terminal based on the evidence they had. And of course the Aviation Department recommends a new terminal based on what we know, but we wanted to get back with the airlines.

This does not square with the reported facts. In November 2013, Austin Alonzo of the Kansas City Business Journal reported that “Southwest was not satisfied with its minimal inclusion in vetting the airport proposal before VanLoh presented it to the City Council earlier this year.” The Kansas City Star reported that the airlines then sought to use their lease extension agreement to secure participation in future airport planning.

VanLoh is also overstating his role as champion of the people. He said on Thursday morning that the airlines were surprised to learn how passionate Kansas Citians are about the airport’s convenience, and that the Aviation Department would fight any design that didn’t preserve that convenience. Yet in April 2013 testimony before the city council, VanLoh’s consultants argued that the airport offered a “poor passenger experience.”

That’s when Mayor James advised the Aviation Department that they wouldn’t curry favor with the public by beating up on the airport. The talking point was removed. But even in Thursday’s chamber presentation, VanLoh argued that the perception Kansas Citians have about short walking distances is an “optical illusion.” Regardless of MCI’s convenience, it certainly isn’t the public’s belief that VanLoh is championing. He is merely doing whatever he thinks it takes to get what he wants.

VanLoh said that he expects to have a recommendation before the city council by the end of summer.

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Constitutional Law Expert Joshua Hawley Weighs in on Obamacare at Policy Forum

Joshua Hawley, a professor of law at the University of Missouri, was gracious enough to join the Show-Me Institute in Columbia last month to talk about a wide array of health care and Obamacare issues, including King v. Burwell, a case before the Supreme Court the week of March 2.

Much could be said about Hawley. A graduate of Stanford University and Yale Law, Hawley went on to clerk for Chief Justice John Roberts. He was one of the attorneys for Hobby Lobby in last year’s Burwell v. Hobby Lobby case, and he has been a highly sought-after speaker on a wide variety of legal and historical matters for a number of years. His book, Theodore Roosevelt: Preacher of Righteousness (2008), is available on Amazon. Hawley also happens to be a graduate of my alma mater, Rockhurst High School, in Kansas City.

His talk is definitely worth your time. A short version is embedded below, and the complete talk can be found here.

The Great L.A. Gambit

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The battle for the L.A. market is joined! According to NBCSanDiego, the Chargers are working with the Oakland Raiders. Their goal: a new stadium in the L.A. area (Carson, California, to be precise). Of course, their home cities can talk them out of it, for the right price.

It’s not shocking that teams other than the Rams might want to move to Los Angeles. L.A. is the country’s second largest media market, and with that comes a lot of TV money. However, still color me skeptical about the whole thing. I think (and I’m not alone) this is more of a ruse for the Chargers and the Raiders to extract sweetheart stadium deals from their home cities. The Chargers have been trying to get a workable proposal from San Diego for the past 14 years. They’ve even recently published some remarks to the San Diego stadium task force regarding what it wants in any new proposal. Needless to say, it’s quite a lot.

I think the Rams’ L.A. proposal is more serious. Why? Because of Stan Kroenke’s silence regarding the Rams’ latest proposal, or anything for that matter on what exactly he wants in order to stay in Saint Louis. The Chargers are giving San Diego an idea of what it is they’re looking for in a new stadium, Mr. Kroenke isn’t.

No matter the likelihood of the Chargers’ or the Rams’ proposals succeeding, I think that neither team should receive public subsidies. If billionaires want new stadiums, they should pay for them themselves. I don’t think taxpayers should get the bill, especially since there won’t be any economic return to them for doing so.

L.A. seems to be the place to go to for teams that can’t get a new stadium. Will policymakers be scared into throwing more money at teams in an attempt to prevent them from leaving? Maybe, but that doesn’t make it a good idea.

 

Changes to Macks Creek Law Making Their Way Through Missouri Legislature

Since the events in Ferguson last year, there has been an increasing push from across the political spectrum to do something about the way some Missouri municipalities use fines and fees to fund city government. Reports show that 20 municipalities in Saint Louis County, mostly clustered in North County, collect more than 20 percent of their revenue from fines and fees. Eight collect more than 30 percent, in possible violation of the less than rigorously enforced Macks Creek Law.

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Starting late last year, Missouri has finally started to see action to curtail the use of police forces as tax collectors. In August, the state launched an audit of four Saint Louis County municipalities, and in December the state attorney general sued 13 municipalities for failing to abide by Macks Creek Law.

Enforcement of the existing Macks Creek Law is long overdue, but now a new state bill (SB 5) greatly strengthens the law. The bill would, within two years, bring down the total amount of general revenue a city could receive from fines and fees to 10 percent, excluding smaller cities outside of populous counties like Saint Louis. The bill makes it clear that any amended traffic fines would count toward that percentage. Furthermore, fines collected on Missouri interstates in excess of 5 percent of general revenue would also not be able to be collected by municipalities. As for enforcement, the bill makes it clear that municipalities have to provide an annual addendum to the state auditor regarding its compliance with the measure. Failure to comply triggers a vote for municipal disincorporation.

Some local officials claim that this law hurts municipalities, since the fines protect public safety. This argument falls flat because revenue collected in excess of SB 5’s provisions is simply remitted to the state, which in turn gives that money to the school systems in the county of the municipality in question. If police in local cities need to fine people to protect health and safety, they can still do so. But SB 5 takes away the narrow financial interests of the city government.

SB 5 passed the Missouri Senate and has now reached the house.

Kansas City Repays Money It Says It Cannot Take

renaultAbout a year ago, on February 13, 2014, Kansas City Mayor Sly James told radio listeners that the city cannot take money from the airport.

[Fees] that are generated at the airport stay in the airport, to take care of the needs of the airport. . . . The money from the airport can’t be used for streets and sewers and none of that. . . . Airport money stays with the airport. If you don’t spend it on the airport, it doesn’t get spent.

He repeated it in his State of the City address in 2014 and again when his Airport Terminal Advisory Group issued their report. In that report, the advisory group repeated the claim, asserting on page 15,

Another common misperception was that funds or profits from the Aviation Department (legally organized and maintained as a Kansas City Enterprise Fund) could be used by the City of Kansas City to fund other municipal purposes unrelated to Airport operation.

The problem is that none of this is true. The city borrowed money from the airport in 2010. Then, during this mayor’s tenure, the city renegotiated the debt to extend the life of the loan to 2016.

Need more? Look no further than page 179 of the mayor’s own Submitted Budget for FY 2015-16, which includes $500,001 for “Aviation Loan Repayment.”

KC FY2015-16 SubBudget

The mayor may have his own opinion on the airport, but he cannot have his own facts, much less two sets of facts.

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