“With the assistance of Missouri’s Court Automation Committee, a statutory entity comprised of members from all three branches of government, the judiciary has been working toward this goal for a number of years,” Chief Justice Paul C. Wilson said. “Today’s orders will ensure court documents that are currently open to the public will be truly accessible to the public. These improvements will fundamentally change the way individuals access public court documents, while balancing the need to protect confidential information and ensure the overall security and reliability of our underlying case management system.”

The rule changes will not go into effect until July 1, 2023, partially due to the constitutionally required waiting period for certain court rules. The waiting period also gives the Court the opportunity to work with The Missouri Bar to educate attorneys, court staff, parties or anyone else offering documents for filing in any Missouri state court to keep unnecessary confidential information out of otherwise public documents and, when confidential information must be included, to redact that information to protect it from disclosure.

Giving the public access to the actual documents filed in Missouri courts may seem like a narrow transparency victory, and in some respects, it is. The average Missourian will probably only take advantage of the new document transparency system a handful of times in their lives; for example, they might want to closely monitor a local court case that may impact their own lives, but may not get the scrutiny or news coverage of higher-profile litigation.

Yet enabling robust oversight of government functions, even if used intermittently at the individual level, is a key good government reform. The purpose of transparency initiatives like this one isn’t to push every Missourian to constantly watch every function of government; ain’t nobody got time for that. But such reforms empower individuals and communities with the opportunity to oversee the governing system that serves them when they do have concerns.

In general, government should have to demonstrate why certain documents can’t automatically be made public rather than require the public to ask first, as is generally required under the state’s Sunshine Law. The state court system’s shift in policy is a positive step in this rethink of what government transparency should really look like.

The post Missouri Supreme Court Takes Solid Step Toward Greater Transparency appeared first on Show-Me Institute.

But while the ruling is disappointing, it isn’t altogether unexpected, either. As I wrote in a paper on the subject of government union reform published earlier this year, “ongoing statutory tweaks and court interventions—driven by interests on both sides of the government–labor debate—seem likely to shape how, and whether, reforms are implemented for years to come.” Government unions weren’t going to give up their power easily even in the face of changes to the law, and it seemed reasonably clear after the lawsuit was filed that an adverse ruling was certainly on the table.

That doesn’t mean reform efforts will or should come to an end as litigation on such matters makes its way through the judicial system. In fact, there was plenty for the state still to do even before the Court’s decision on HB 1413, especially ensuring collective bargaining agreements are catalogued by state regulators, and we observed as much in the paper:

Whatever HB 1413’s eventual disposition, any oversight regime that cannot identify all the subjects of that oversight will fail to meaningfully execute its mission. Without effective oversight, the likelihood of patently illegal contract provisions rises. That’s bad for taxpayers and government workers, but it’s also bad for the rule of law.

Currently the legislature is hearing bills dealing with “paycheck protection” reforms, which we’ve talked about before and were part of HB 1413. But as the legislature takes stock of the government union landscape as it moves toward the completion of its legislative year in May, policymakers should also take a hard look at whether the state can effectively oversee any of the reforms that it’s contemplating and whether it has delegated sufficient power and resources to officials to ensure the will of the legislature is being carried out. Changing the law is fine, but a law that can’t be or isn’t enforced will be ignored.

The post On Government Union Reforms, Present and Future appeared first on Show-Me Institute.

But regardless of the extent to which the case affected a given state, the Court’s ruling highlights a pair of important questions that Missouri educators have to grapple with each year: namely, why might teachers join a union, and if they joined, what would their dues pay for?

Unionized teachers do receive some tangible benefits from their membership, such as legal services in the event they’re fired or sued, and liability insurance. The cost of union membership varies depending on location and the union involved; dues are typically either flat, such as the annual $219 for the Missouri State Teachers Association, or a percentage of salary, such as the one percent for the St. Louis chapter of the American Federation of Teachers (AFT). Of course, if a teacher doesn’t join, he or she is still covered by the salary schedule; not joining has no impact on things like health insurance, tenure, or seniority.

But if a teacher does join a union, a portion of their union dues often goes to advocacy work and to support political candidates. Given the diverse opinions of teachers, the funneling of dollars to particular causes often runs afoul of an individual teacher’s own personal beliefs. For example, at the national AFT conference just a few weeks ago, a resolution was passed that stipulated what policies a candidate must support to receive the union’s endorsement. These included, among other things, universal health care, universal and free child care, doubled per-pupil expenditures for low-income students, and free college

What a lot of teachers don’t know when faced with the decision of joining a union is that the vast majority of the benefits unions offer are also available through other vendors. For example, dues for Association of American Educators (AAE), a non-union professional organization for teachers, are just under $200 per year, and the benefits are similar to those offered by unions—disability insurance, legal protection—but without the politics. And if joining a group of any kind isn’t your style, teachers can always buy many of the benefits they want a la carte on the open market.

In short, Missouri teachers have a lot of options in determining how they’ll advance their professional interests—and they can do so with or without the political speech embedded in the operations of a government union. And especially after the passage of HB 1413, teachers in Missouri are particularly empowered to have a say in who represents them to their districts, and to see how unions spend the money they receive from members. Perhaps one day, public school teachers will even be able to negotiate their own employee contracts and have a freer hand to choose their health insurance and retirement plans, like many of the rest of us already have. But until then, Missouri teachers still have a lot of choices that they can make, and fortunately, subsidizing a union’s political speech doesn’t have to be one of them.

The post Missouri Public Teachers, Take Note: Union Membership Is Optional appeared first on Show-Me Institute.

I and others will have more analysis of this over the next few hours and days, but suffice it to say that this is a win for supporters of the First Amendement, for government employees, and for taxpayers.

2. The State’s extraction of agency fees from nonconsenting publicsector employees violates the First Amendment. Abood erred in concluding otherwise, and stare decisis cannot support it. Abood is therefore overruled. Pp. 7–47.

(a) Abood’s holding is inconsistent with standard First Amendment principles. Pp. 7–18.

(1) Forcing free and independent individuals to endorse ideas they find objectionable raises serious First Amendment concerns. E.g., West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 633. That includes compelling a person to subsidize the speech of other private speakers. E.g., Knox v. Service Employees, 567 U. S. 298, 309. In Knox and Harris v. Quinn, 573 U. S. ___, the Court applied an “exacting” scrutiny standard in judging the constitutionality of agency fees rather than the more traditional strict scrutiny. Even under the more permissive standard, Illinois’ scheme cannot survive. Pp. 7–11.

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You can read the Court’s decision here. Basically, the Court ruled that the ordinance conflicted with existing state law and thus was invalid.

Mayor Slay has promised to appeal to ruling, but assuming this ruling stands, we are left with the question of how best to help those working families who are struggling to get by on the current minimum wage.

Increasing the minimum wage, either at the local, state, or federal level, is not the way to go. Instead, the state and/or federal government should look to expand the Earned Income Tax Credit (EITC). Economists across the ideological spectrum agree that the EITC is a program that is better targeted to helping the working poor.

The EITC is a better policy than increasing the minimum wage for at least two reasons. First, it is specially targeted toward low-income households. If the minimum wage goes up, a teenager from an upper-middle class family working a minimum-wage job would get the same benefit as a single mother of two. The EITC goes only to members of low-income families who are working. Second, unlike an increase to the minimum wage, the EITC does not increase labor costs for business owners. Thus, an expansion of the EITC would not cause businesses to reduce hours or lay people off.

A lot of people might be upset by the Circuit Court’s ruling yesterday. However, this ruling provides policymakers with an opportunity to enact policies that can better help those who need it. The EITC is one such policy.

The post Saint Louis Minimum Wage Increase Put on Hold appeared first on Show-Me Institute.

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The post In Support of Workers’ Free Speech Rights appeared first on Show-Me Institute.

The substantive question addressed in the Court’s opinion really boils down to this: should the burden be on a public employee to opt-out of an automatic salary deduction program whose proceeds could fund a union’s political activities? Or should the burden be on the union to get employees to opt-in? Are these “free speech dollars” taken from the employee’s paycheck presumptively the employee’s, or presumptively the union’s?

It appears the Court sees those dollars as presumptively the employee’s. Justice Samuel Alito, writing for a 7-2 majority, articulated the problem inherent in these opt-out arrangements very clearly:

Unless it is possible to determine in advance with some degree of accuracy the percentage of union funds that will be used during an upcoming year for chargeable purposes — and the SEIU argues that this is not possible—there is at least a risk that, at the end of the year, unconsenting nonmembers will have paid either too much or too little. Which side should bear this risk?

The answer is obvious: the side whose constitutional rights are not at stake.

Protecting the First Amendment rights of all of Missouri’s citizens is an issue that should always be of great import to the legislature. Allowing public employees to specifically opt-in, rather than opt-out, to support a union’s political activities would reaffirm this purpose.

More generally, public-sector unions pose a different set of fiscal and philosophical problems that private-sector unions do not, and those problems are related to the speech issues in play here. Public-sector unions can oftentimes choose, in fact or in practice, who will be across the table when they negotiate their contracts. Their political activism and power allows them to negotiate sweetheart deals that private-sector employees could never obtain, and taxpayers end up picking up the bills for those deals.

That is one of the reasons Missouri’s pension obligations are so foreboding (see the study we released addressing the issue). Private-sector unions are (usually) circumscribed in their negotiating power by the health of the companies with which they work. Public-sector unions are not as constrained and can simply work to vote in representatives — on school boards, in fire districts, and elsewhere — that will generously spend other peoples’ money on them. That power is in no small part underwritten by the unions’ ability to directly draw money from employee salaries and, I believe, in violation of the free speech rights of many public employees.

Thus, on both free speech and fiscal grounds, it is eminently appropriate that the Missouri Legislature would step in and reassert that public-sector union power has limits. High among those limits is the First Amendment rights of those the state employs. Employees who want to donate to the union’s political activities should be able to donate to them as they would choose to donate to any other organization, but the state should presume that those speech dollars are the employee’s first, not the union’s.

A Knox-informed reform that would reassert the rights of public employees would be a modest one, but it would effectively hit at the larger problem of the special deals that public-sector unions get which private-sector unions and the non-unionized could never leverage. Such a change would be a positive step for the state and its employees, both fiscally and constitutionally.

The post Opting-In, Opting-Out – And Burdens On Free Speech appeared first on Show-Me Institute.

While the [Pennsylvania] challenge was brought under the state constitution, Simpson’s opinion was heavily influenced by the U.S. Supreme Court’s 2008 decision that seemed to give states the green light to require voters to present photo IDs. In the court’s lead opinion, Justice John Paul Stevens, now retired, said that such a law in Indiana was a reasonable reaction to the threat of voter fraud, “amply justified by the valid interest in protecting the integrity and reliability of the electoral process.”

The Supreme Court’s ruling in that case had a very clear majority, 6-3, and received the support of one of the most liberal justices on the Court at that time, John Paul Stevens. Photo voter ID is not some radical proposal. It is a rational reaction to the concerns attendant to a system where we want every legal voter’s voice to be heard. As I have argued, if even 1 percent of the vote is fraudulent in an election, how many important races could that swing? If there are ways to prevent that sort of fraud and reaffirm our commitment to ensuring voters’ votes are protected, why wouldn’t we pursue them? Missouri elections would benefit from similar photo ID rules.

The post A Voter ID Victory In Pennsylvania: Missouri, Take Note appeared first on Show-Me Institute.

First, is PPACA severable — that is, if one part of the law is unconstitutional, may the rest of the law remain, or must the entire law be thrown out? Readers can find extended coverage on the severability issue here.

Second, is PPACA’s Medicaid expansion constitutionally permissible? Congress’ broadening of Medicaid’s eligibility rules affects not only the federal budget but the budgets of the states, which, along with the federal government, fund state-managed Medicaid programs. By expanding the pool of who can receive Medicaid, Congress is raising the states’ costs; the states’ contributions to the program would have to increase to pay for the greater number of beneficiaries. That is bad news for already tight state budgets. Medicaid is a “voluntary” program technically, but practically, states have come to rely heavily on the federal dollars associated with the program. Foregoing PPACA’s Medicaid expansion provisions also probably means foregoing those federal dollars.

Therein lies the issue: Do PPACA’s revisions to Medicaid, which expand the program’s eligibility requirements, constitute permissible federal pressure on the states stemming from Congress’ spending power, or does it go beyond “pressure,” constituting “compulsion” in violation of the 10th Amendment? For those following the arguments at home, listen for whether and how the justices use the word “compulsion” during the hearing. If the Court believes the changes to the law are “compulsion,” it may be inclined to say the Medicaid expansion goes too far, violating the 10th Amendment.

The Court is expected to rule on this week’s oral arguments in June or July.

The post Previewing Day Three Of Health Care Reform Oral Arguments appeared first on Show-Me Institute.

Modern jurisprudence has increasingly allowed the federal government to regulate commerce that is not of an obviously interstate nature. The issue here is that PPACA goes further and regulates the non-purchase of a good or service. Rather than simply regulating the manner in which the health insurance market will operate, PPACA requires that everyone in the country buy something, or be fined. Under this paradigm, market participation would no longer be required for regulation under the Commerce Clause; instead, and in a very real way, the feds would subject you to a purchase requirement merely for being a living, breathing American.

That is a problem. Having a health insurance plan makes sense, but compelling Americans to buy a health insurance plan through heavy-handed federal coercion is awful policy and arguably unconstitutional. Reading into the U.S. Constitution a federal right to demand purchases from its citizens would eviscerate many of the limits on government power enshrined in that document.

If the federal government can require individuals to purchase health insurance, what can’t the federal government require us to purchase? Ilya Somin, a law professor at George Mason University who has filed a brief with the court, contends that if PPACA passes constitutional muster, then Congress could pass “a broccoli mandate, a car-purchase mandate, really any other mandate that you’d want.” Where is the line against such coercion drawn if not by the plain meaning of the Constitution?

Proponents of PPACA have dismissed the suggestion that the federal government would impose a “broccoli mandate,” arguing that the federal government would never try to expand a mandate to purchase goods and services into such areas. But Americans should not have to entrust their freedoms to the word of politicians and bureaucrats, well-meaning or not.

There is no “just trust us” clause in the Constitution. The Constitution is the check that keeps capricious leaders from doing capricious things, and should remain so.

The post Previewing Day Two Of Health Care Reform Oral Arguments appeared first on Show-Me Institute.

Each day will focus on a different aspect of the law being challenged. The order of oral arguments, according to the Washington Post, is as follows:

• Monday: The Anti-Injunction Act (AIA)
• Tuesday: The individual mandate
• Wednesday: Severability, Medicaid expansion

The first session will deal with whether the penalty for not obtaining health insurance is a tax. Under the Anti-Injunction Act, the government typically must levy a tax before it can be challenged. If the Court finds that the PPACA penalty is in fact a tax, the earliest anyone could challenge it would be after it is imposed, which would be 2015 — the year after the mandate goes into effect. Such a ruling might frustrate PPACA supporters and opponents alike, as the law would remain in limbo for several more years, or until Congress changes the law.

Both the government and the states now agree that the penalty is not a tax, and although it is not especially likely that the Court will conclude that the AIA would prevent the Court from reviewing the law at this time, it still could happen. Moreover, the AIA issue, despite its questionable merits, does have a certain appeal. If the Court wants to avoid a highly-charged election-year ruling, this issue would provide a handy escape hatch for the Court.

The post Previewing Day One Of Health Care Reform Oral Arguments appeared first on Show-Me Institute.

The case came before the Court because the Independence School District decided to unilaterally modify the contract it had reached in collaboration with teachers’ union representatives. The district reasoned that, because teachers were specifically excluded from statutes providing a framework for collective bargaining with public-sector employees, the agreement with the teachers’ unions was not binding — because it had been reached through a sort of collective bargaining process. The Supreme Court disagreed. Even though previous decisions by the Court had limited the scope of the Constitution’s collective bargaining guarantees, the Court overturned those cases and held instead that all employees, including those in the public sector, are protected by the Constitution.

This win for the teachers’ unions has led to quite a conundrum across the state, which is discussed by a story in today’s Springfield News-Leader. In the decision’s aftermath, union officials called for legislators to pass a statute that would govern the collective bargaining process for teachers. Interestingly, however, the Missouri NEA and the MTSA (each of which represent a substantial percentage of teachers in many districts throughout the state) have very different ideas about what would make the best framework. The MNEA, which is the larger organization, wants a winner-takes-all solution in which a majority vote would decide on one union to handle representation for all of a district’s teachers. The MTSA, on the other hand, wants to establish negotiating committees that would allow for proportional representation from both unions. This sort of framework would assure MTSA teachers that their representatives had a seat at the negotiating table, even if a majority of teachers in the district were represented by the MNEA. In short, the teachers’ unions got what they asked for, and now they are each lobbying the state to mediate the resulting conflict.

This situation echoes the broader problem in our union-driven education system: The unions’ proposals call for the legislature to create a one-size-fits-all approach that will bind all of the state’s school districts and teachers. While a state-mandated approach undoubtedly serves the interests of the unions themselves, the idea is really pretty silly. Let the teachers sort out for themselves how to handle bargaining!

Imagine a hypothetical school district that employs 100 teachers, of whom 80 belong to the MNEA, 15 belong to MTSA, and five would prefer to negotiate their own contracts. Why couldn’t the district reach one agreement that would cover MNEA teachers, another that would cover MTSA teachers, and separate contracts to cover the five independents? Under this model, teachers would have a choice about which deal served them best — a union negotiation or an independent contract. If members of one union became disillusioned with their representation, they would have the option of switching to the other union or going independent, a model that would empower individual teachers. I think that’s a very good thing!

The unions, of course, would be appalled by this suggestion. A union wields power by presenting a united front on behalf of all the members of a profession, thus assuring that when potential employers don’t meet the union’s demands, no work will be done. Unions can only maintain this power by ensuring that workers will not seek independent employment agreements that deviate from the union’s demands. Under ideal circumstances, unions should secure cooperation from workers only through persuasion — convincing them that remaining in step with union goals is in their best interest. Unfortunately, however, unions sometimes turn to coercive threats when persuasion proves unsuccessful.

Tying back to the news story, one way to avoid this sort of risky intimidation — while achieving similar results — is for the unions to seek legislation that uses the power of the state to entrench their status and curtail dissent. It should be obvious, however, that it is not appropriate for the unions to use the legislature to accomplish what their reasoning cannot. Teachers (and school districts!) should be free to approach the bargaining table on their own terms, not on terms dictated to them by the unions or the legislature.

The post Cooperation, Not Legislation appeared first on Show-Me Institute.

The Show-Me Institute study of judicial selection is topical in Springfield for several reasons.  First — and this is really more of a statewide issue — there is another vacancy on the Missouri Supreme Court, so our system shall again be put into action and to the test. Also, some community leaders in Springfield are beginning a process to consider whether Greene County should join the five other local circuits in the state that use the non-partisan court plan at the local level. While the study itself focused on the Supreme Court, I believe its findings — that our current system of judicial selection is good for our economy — apply just as well to the local courts. And, clearly, from what television tells me, the legal community in Springfield could use some improvement. 

The post Springfield and the Courts, a Love Story appeared first on Show-Me Institute.

It looks as though the Court may base its decision on its interpretation of that requirement, rather than on any reputed benefits or drawbacks of midwifery itself. From the Post-Dispatch:

Assistant Attorney General John McManus argued that the provision indirectly related to health insurance because lawmakers could not insure midwives if the practice was illegal.

Making it legal "is the initial step," he told the court. "The Legislature can’t take any other steps with relation to health insurance and certified midwives unless they take this step."

Several judges questioned that argument on Wednesday.

"Had the title been worded, ‘An Act relating to health care services,’ there would have been no problem," said Judge Stephen Limbaugh.

Chief Justice Laura Denvir Stith said that under McManus’ argument, lawmakers could legalize almost anything in the bill. "It seems that anything that’s insurable can be put in this bill," she said.

A few months ago, I wrote an op-ed about midwifery and concluded:

Hopefully, this provision will be resurrected — either on appeal, or through a less controversial legislative action. It’s important that consumers be allowed autonomy not only in choosing insurance policies, but also in choosing what type of care they want to receive.

Regardless of what the Court decides about the technical validity of this particular provision, there’s little question that legalizing midwifery is a good idea. Several advocates of midwifery submitted an amicus brief to the Court that provides thorough arguments about the benefits of the practice, and answers the objections of critics. An excerpt:

Contrary to the AMA’s unsupported assertions about home birth safety, the “clear preponderance of medical literature” suggests that home births, when they are planned and attended by a well-trained professional midwife, in fact, may be less dangerous for mother and baby than giving birth in a standard hospital […] Among the myriad studies on home birth, the only study cited by the AMA to support its assertion that home birth is risky is the only one to have found otherwise, yet this study has serious design flaws that undermine its validity.

Ultimately, though, determining which side has a greater degree of evidence to support its claims of health and safety is of much lesser importance than the simple question of freedom that is so often overlooked in these debates: Should you have control over your own choice of medical care, or should the choice be left to politicians?

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On Jan. 19, St. Louis County Circuit Judge James R. Hartenbach agreed to allow Centene to use condemnation to acquire the properties. The owners say their properties are not blighted and should not be condemned. In a nonbinding referendum, Clayton voters expressed opposition to the use of eminent domain to benefit a private development.

Robert J. Schenk, a spokesman for Centene, said, “The properties that are the subject of litigation are still a critical part of the overall project. Without those properties, the project will not occur.”

Schenk said, “The developers are busy working to ensure that the project can move forward as quickly as possible as soon as the litigation question has been addressed.”

The properties in question are just a couple of blocks from our offices, and I’ve walked by them numerous time over the last two years. If they’re “blighted,” then every neighborhood in the state is blighted. Even more outrageous, these properties aren’t even essential to Centene’s new headquarters, they’re slated to be used for upscale retail establishments. Apparently Centene simply didn’t feel that the businesses currently occupying the space were high-class enough for its employees and clients to patronize, so they asked the city to bring in new, ritzier businesses.

In short, what is happening is precisely what Justice O’Connor predicted in her dissent in Kelo:

The logic of today’s decision is that eminent domain may only be used to upgrade?not downgrade?property. At best this makes the Public Use Clause redundant with the Due Process Clause, which already prohibits irrational government action. The Court rightfully admits, however, that the judiciary cannot get bogged down in predictive judgments about whether the public will actually be better off after a property transfer. In any event, this constraint has no realistic import. For who among us can say she already makes the most productive or attractive possible use of her property? The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.

But what about last year’s eminent domain legislation? Wasn’t it supposed to protect property owners? The legislation did substantially increase protection for farmers. But for the rest of us, all it had to offer was modest increases in compensation. The legislation left in place the absurdly lax standards for “blight” that essentially allows municipalities to condemn any property they want.

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