Editorial: The deal that never should have been

In all the second-guessing and navel gazing over the Faraday Future flop, no one is bringing up the real reason that the deal should never have been made in the first place.

Yes, it was an ill-conceived idea for gullible Nevada lawmakers in a special session in 2015 on blind faith alone to agree to dole out $215 million in tax abatements and credits to entice Faraday Future to build an electric car factory at the Apex industrial complex in North Las Vegas, though at the time it did not even have a prototype vehicle. The deal, struck by the Governor’s Office of Economic Development, also promised to spend $120 million on infrastructure improvements at the site — water, rail and widening of Interstate 15.

Faraday promised to build a $1 billion manufacturing facility, create 4,500 jobs and start producing cars as early as 2016.

After visiting China in 2016 state Treasurer Dan Schwartz, long a critic of the Faraday largesse by the state, told the press, “We’re increasingly more concerned than we were before that this is just a big Ponzi scheme.”

He and the handful of other naysayers have been proven right. Faraday has pulled the plug, tucked tail and run off.
But it wasn’t just naiveté or poor negotiating skills or poor judgment that made this a bad deal. It was blatant and arrogant flouting of the state Constitution. In fact, it was a double flout.

Nevada’s Constitution has a Gift Clause, which states, “The State shall not donate or loan money, or its credit, subscribe to or be, interested in the Stock of any company, association, or corporation, except corporations formed for educational or charitable purposes.”

Self-styled economic development advocates have tried three times to amend the Constitution and remove the Gift Clause. The voters rejected those attempts all three times — in 1992, 1996 and again in 2000 by wide majorities.
The state Supreme Court has said that when the state provides something to a private entity without getting adequate compensation for the value, that is a gift and thus a violation of the Constitution.

Nevada’s high court has cited an Arizona Supreme Court ruling on that state’s nearly identical Gift Clause. The Arizona court said its Gift Clause “represents the reaction of public opinion to the orgies of extravagant dissipation of public funds by counties, townships, cities, and towns in aid of the construction of railways, canals, and other like undertakings during the half century preceding 1880, and it was designed primarily to prevent the use of public funds raised by general taxation in aid of enterprises apparently devoted to quasi public purposes, but actually engaged in private business.”

Then there is the section of the Nevada Constitution that clearly states, “The Legislature shall provide by law for a uniform and equal rate of assessment and taxation …” It is not uniform or equal if a select few get breaks while others don’t.

Despite these clearly worded prohibitions the state doled out $1.3 billion in tax breaks to Tesla Motors to build a battery factory near Sparks. The projections on capital investment and number of jobs to be created have fallen far short. All it would take to make the whole deal go bust is a technological breakthrough that makes lithium ion batteries obsolete.

That $750 million to build a Las Vegas stadium for the Oakland Raiders football team on a site with woefully inadequate parking spaces still could come up a piker.

But none of them should ever have been allowed in the first place and none like them should ever be allowed again, if officials and lawmakers would abide by the Constitution.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Site of failed Faraday Future electric car factory. (R-J pix)

Newspaper column: Bundy case judge trying to prevent jury nullification

The retrial of four defendants in the 2014 Bunkerville standoff at the Bundy ranch got underway this past week in Las Vegas, and this time the prosecution and the judge seem determined to avoid another mistrial due to a hung jury by eviscerating defense arguments.

Federal Judge Gloria Navarro granted a prosecution motion to bar presentation of evidence “supporting jury nullification.”

In April, the first of three scheduled trials for the 17 Bunkerville defendants — charged with obstruction of justice, conspiracy, extortion, assault and impeding federal officers — ended in a mistrial. The jury found only two of six people on trial guilty of some charges but deadlocked on the others.

The standoff occurred after heavily armed Bureau of Land Management agents attempted to confiscate Bundy’s cattle after he had refused for 20 years to pay grazing fees. Faced with armed protesters the agents eventually released the cattle.

Two more trials are pending, with Cliven Bundy and his four sons scheduled to be the last. Most defendants have been jailed without bail for a year and half.

In mid-June the prosecution filed a motion asking the judge to bar the jurors in the retrial from hearing certain so-called state of mind arguments — arguments that the defendants felt justified to show up and protest because of “perceived government misconduct” due to excessive use of force by law enforcement and that they were simply exercising their First and Second Amendment rights.

The defense will not be allowed to mention the tasering by law enforcement of one of Bundy’s sons and the wrestling to the ground of one of his sisters.

The judge said the reasons the defendants went to Bunkerville are not relevant to the charge, but she will allow prosecutors to introduce testimony about the four men’s associations with militia groups.

“The Court also rejected Defendants’ proposed instructions on the First and Second Amendment because they are not legally cognizable defenses, or in other words, the law does not recognize these Amendments as legal defenses to the crimes charged,” Navarro wrote, though the Bill of Rights were added to the Constitution to spell out natural rights that Congress must not trammel with its laws.

The First Amendment bars Congress from making laws abridging free speech and peaceful assembly, while the Second states the right to keep and bear arms may not be infringed.

But apparently those are not defenses against laws prohibiting behavior that causes federal officers to feel threatened.

Navarro concluded, “The Court will not permit argument, evidence, or testimony regarding Defendants’ beliefs about the constitution as such beliefs are irrelevant and a possible jury nullification attempt.”

The judge quoted a 9th U.S. Circuit Court of Appeals ruling, “Jury nullification occurs when a jury acquits a defendant, even though the government proved guilt beyond a reasonable doubt.” And you thought jurors made that determination.

The concept of jury nullification dates to colonial days and is widely taught in journalism schools, because it involved printer John Peter Zinger who was indicted for criminal libel against the colonial governor and tried in 1735. His attorney Andrew Hamilton offered as a defense that what was printed was true, even though under the law truth was not a defense but rather a confirmation of guilt.

The judge at Zenger’s trial ruled that Hamilton could not present evidence as to the truth of the printed statements.

In his closing argument Hamilton declared, “It is the cause of liberty … and by an impartial and uncorrupt verdict have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that to which nature and the laws of our country have given us a right to liberty of both exposing and opposing arbitrary power (in these parts of the world at least) by speaking and writing truth.”

The jury quickly returned with a verdict of not guilty.

In 1794, Chief Justice John Jay said to jurors in a rare Supreme Court jury trial, “It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.”

Did jurors in the first trial nullify the law or merely find the law was misapplied?

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Protests outside courthouse. (R-J pix)

Editorial: Repeal ObamaCare and let states handle health insurance

The bad news for those who live in Clark, Carson City and Nye counties is that companies offering ObamaCare-compliant health insurance policies have requested 38 percent premium increases in 2018. The good news for those in the rest of Nevada is that their ObamaCare premiums will not be going up because there are no companies offering such policies.

In pulling out of those counties Anthem stated the “individual market remains volatile” and “planning and pricing for ACA (Affordable Care Act)-compliant health plans has become increasingly difficult due to a shrinking and deteriorating individual market …”

As libertarian economist F.A. Hayek warned years ago, central planning, such as ObamaCare, which dictates to private companies to whom they must sell their services and at what price, cannot possibly work. There are too many abstract factors that only a free market can account for. Witness the lack of willing ObamaCare insurance sellers in 14 Nevada counties.

Congressman Mark Amodei, who represents six of the counties without an ObamaCare option, said, “Sadly, this news isn’t shocking. It represents another symptom of the sickness that is killing America’s health care system. While there are plenty of arguments on how to fix this, regardless of your political views, it’s clear the status quo isn’t working and is in need of serious repair. Once again, I’m left wondering, when is Congress going to put the issue ahead of the politics? I will continue to focus on the facts and the policy options to be applied in Nevada. As always, my goal is to ensure that any reform package increases Americans’ access to quality and affordable care, while paying respect to rural communities like ours that are being hit the hardest.”

The House version of ObamaCare repeal and replace is currently stalled in the Senate, where Nevada Sen. Dean Heller is balking at supporting it due to the potential reduction in Medicaid funds for Nevada. Gov. Brian Sandoval opted to expend Medicaid under ObamaCare, and Heller is reluctant to retrench.

Apparently Nevadans are of two minds when it comes to deciding what to do about ObamaCare.

According to a recent American Medical Association survey, when asked straightforward whether ObamaCare was a good or bad idea, fully 45 percent of Nevadans say it was a good idea, while 37 percent say it was a bad idea.

But when you get down to whether Congress should change that law, the opinions are more varied. When asked, “As you may be aware, in order for the health care legislation passed by the House to become law, the United States Senate must review and pass the legislation. Do you think the U.S. Senate should …”

Seven percent said pass the House legislation as is; 23 percent said make minor changes to it and pass it; 27 percent said make major changes to it and pass it; 33 percent said Congress should not pass any part of the House legislation, thus leaving ObamaCare in place

So, 33 percent say leave it as is, while 57 percent call for some changes.

But when asked about specific changes being proposed, the Nevadans surveyed largely opposed those changes.

They opposed dropping the mandate to buy health insurance. They opposed dropping various federal subsidies and eliminating the ObamaCare requirement that all health plans sold must provide a standard set of government-established benefits, including mental health services, addiction treatment, maternity care and preventive health services with no out-of-pocket costs.

Nevadans favor providing federal funding for states to cover people with pre-existing conditions, the survey says.

Frankly, Congress should repeal ObamaCare and turn over policing of health insurance to the states, which under the 10th Amendment is the proper jurisdiction for wielding power in this arena. Congress should merely exercise the power of the Commerce Clause to assure health insurance can be sold across states lines.

Leaving the status quo in place is not an option, as rising premiums and deductibles and a lack of willing sellers attests.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Nate Beeler cartoon

Newspaper column: How to make use of those Yucca Mountain tunnels

Obama and Reid tour Nellis AFB solar panel site. (R-J pix)

Sometimes things just naturally come full circle.

For decades Nevada’s former U.S. Sen. Harry Reid constantly pounded on two themes: Blocking nuclear waste from being stored in Yucca Mountain in Nye County and pressing for more and more solar panels to be thrown up on thousands of acres of public land and on rooftops across the state.

When Congress designated Yucca Mountain as the nation’s sole nuclear waste dump in 1987, Reid said two things, no and hell no. As he rose in seniority in the Democratic Party to become Senate majority leader, he finally found the power to make those words stick and steadily turned down the funding spigot for the project until President Obama shut it down entirely.

As he neared retirement, Reid declared Yucca Mountain dead, though President Trump and his Energy Secretary Rick Perry have been trying to breathe life back into it.

Meanwhile, Reid campaigned vigorously for green energy, bragging about his role in the state investing $6 billion in green energy and creating 20,000 jobs. The projects include sites such as the 3,000-acre Copper Mountain Solar project outside Boulder City and the 15-megawatt solar panel installation on Nellis Air Force Base.

Almost every year at his long-running green energy conference in Las Vegas, Reid would drag out some dignitary from the base to repeat the boast that the project was saving taxpayers $1 million a year in power costs — without ever bothering to mention the panels cost $100 million in 2007 and would reach obsolescence in 25 years and need to be disposed of.

Which brings us to the closing of the circle.

An alert reader recently brought to our attention a report from a Berkeley-based group called Environmental Progress. It seems that when you do the math, solar panels create 300 times more toxic waste per unit of energy output than nuclear power plants.

This prompted our alert reader to suggest it is time to contemplate the Yucca Mountain Solar Panel Repository.

“We talk a lot about the dangers of nuclear waste, but that waste is carefully monitored, regulated, and disposed of,” Michael Shellenberger, founder of Environmental Progress, an advocate for nuclear energy, told the National Review. “But we had no idea there would be so many panels — an enormous amount — that could cause this much ecological damage.”

The Environmental Progress report states, “If solar and nuclear produce the same amount of electricity over the next 25 years that nuclear produced in 2016, and the wastes are stacked on football fields, the nuclear waste would reach the height of the Leaning Tower of Pisa (52 meters), while the solar waste would reach the height of two Mt. Everests (16 km).”

Those innocent looking solar panels contain elements such as lead, chromium and cadmium — known carcinogens. The panels are difficult and expensive to recycle. The process is labor intensive and the price of the resulting scrap material is low, according to the National Review. (Never mind the toxic waste created during the manufacturing process.)

But, since they are already imbedded in glass and plastic and would not necessarily have to be protected by water shields like nuclear waste canisters if they were buried in those miles of tunnels at Yucca Mountain, it seems like a solution to the problem of what do with that $15 billion project sitting idle in the desert. The main problem is that it may not be big enough.

The United States has more than a million solar energy installations, many of which are nearing the end of that 25-year life expectancy, and more are being built, though currently solar produces only about 1.3 percent of the world’s electricity, compared to 10 percent for nuclear power.

As for the nuclear waste, we never thought it a good idea to dump it in a hole in the ground, when it can be recycled, as many countries currently do. It would be rather easy to haul the stuff to the desert at or near Yucca Mountain and store it above ground in dry casks until it can be recycled, possibly on site, which would create a number of high tech jobs.

Don’t you love it when mislaid plans come together?

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Yucca Mountain entrance. (ABC pix)

Newspaper column: Ownership of land better than paltry PILT payouts

It is that time of year again, when counties in Nevada and across the West squat on the street corner with their tin alms cups extended anxiously awaiting the tinkling sound of a few coins from the federal till — otherwise known as Payment in Lieu of Taxes (PILT).

Since 1977 Congress has parsimoniously paid out pennies on the acre to local governments to make up for the land the federal government controls but on which it pays no local property taxes. Since 85 percent of Nevada land is controlled by various federal agencies that is a lot of property tax to forgo.

Just a few weeks ago the Trump administration budget for this year proposed limiting PILT funding to an average of the most recent 10 years or about $397 million, but this past week in Pahrump Interior Department Secretary Ryan Zinke announced at a meeting with various Nevada officials that the PILT largesse this year will be $464.6 million, a 6 percent increase over the previous year. The about-face was roundly ignored.

But for some reason, also neither explained nor questioned, Nevada’s share of the booty increased by only 2 percent to $26.18 million, about the same as inflation.

There was much backslapping all around.

Secretary Zinke noted in a self-congratulatory press release that he grew up in northwest Montana, and, “I know how important PILT payments are to local communities that have federal lands. These investments are one of the ways the federal government is fulfilling its role of being a good land manager and good neighbor to local communities. Rural America, especially states out west with large federal land holdings, play a big part in feeding and powering the nation and also in providing recreation opportunities, but because the lands are federal, the local governments don’t earn revenue from them. PILT investments often serve as critical support for local communities as they juggle planning and paying for basic services, such as public safety, fire-fighting, social services and transportation.”

Nevada Republican senior Sen. Dean Heller chimed in by saying, “Unlike other states, approximately 85 percent of Nevada lands are managed by the federal government, making the PILT program critical for local governments’ ability to maintain essential services like public safety and education.”

The state’s Democrat junior Sen. Catherine Cortez Masto did note the previous threats to trim PILT, saying, “From fixing roads to education to basic healthcare services, Nevadans have benefited from these resources for decades, despite constant threats of massive cuts to the program. I am pleased that Nevada will receive its largest grant in the program to date, which signals the Department of Interior’s recognition of PILT’s importance to Nevada and the need to boost our state’s rural communities.”

Nye County Commissioner Dan Schinhofen was quoted as saying, “With 98 percent of the land in Nye County being federally managed or owned, PILT is not seen as discretionary to us, and as such needs to be guaranteed.”

PILT payments are based on a formula that takes into account the number of acres of federal land in each county, as well as the population. It is a formula that defies explanation.

Nevada on average is getting 46 cents per acre, having a population of 2.9 million and 85 percent of its land under federal control. But New Mexico, with a population of 2 million and only 35 percent of its land under federal control, gets $1.72 per acre. Utah, with a population nearly equal to Nevada at 3 million and 65 percent of it land in federal hands, is getting 99 cents an acre.

Every state adjacent to Nevada is getting at least twice as much per acre.

The PILT payments also vary wildly by county, from a low of 7 cents an acre for Esmeralda County to a high of $2.71 per acre for Storey County. Other examples: Clark, 73 cents; Elko 46 cents; Eureka, 17 cents; Lincoln,14 cents; Mineral, 37 cents; White Pine, 24 cents. Dollars and acreage for all 1,900 counties getting PILT are available at: https://www.nbc.gov/pilt/counties.cfm.

Additionally, it should be noted that the PILT payouts amount to only 5 percent of the $8.8 billion the Interior Department collects each year from commercial activities, such as oil and gas leases, livestock grazing and timber harvesting.

Instead of sitting around with tin cups waiting for pitiful PILT handouts, Nevada should demand more control of its land and collect all of those revenues to reduce our tax burden.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

 

Editorial: Nevada right to join sanctuary city fight

Protesters in San Francisco (AP pix)

Earlier this month Nevada Attorney General Adam Laxalt joined with nine other attorneys general in filing a friend-of-the-court brief challenging a federal judge’s decision in April to block a President Trump executive order that would deny some federal funding for sanctuary cities.

The judge sided with Santa Clara County, the city of San Francisco and other jurisdictions who argued that taking away federal funds from cities that do not cooperate with federal immigration enforcement could be unconstitutional.

After the order, Trump tweeted: “First the Ninth Circuit rules against the ban & now it hits again on sanctuary cities-both ridiculous rulings. See you in the Supreme Court!”

Laxalt argued that having sanctuary cities near Nevada poses a threat to public safety.

“Sanctuary cities in California endanger Nevadans, especially given their close proximity to us,” said Laxalt in a press release. “In some cases these cities refuse federal requests to temporarily detain illegal aliens with violent criminal histories and instead release these felons into communities that — under federal law — they have no right to be in. Nevada’s Legislature, sheriffs and municipalities have wisely rejected such nonsensical policies, but Nevadans should not be the victims of such policies in other states. Opposition to this extreme form of a ‘sanctuary city’ is pro-immigrant and pro-safety, as safety is a leading concern of our immigrant communities.”

In fact, the brief itself points out that one of the states seeking to overturn the judge’s ruling, West Virginia, is near Baltimore, which has adopted sanctuary city policies and is the source of illegal drugs that spill into West Virginia.

In addition to Nevada and West Virginia, the other states involved include: Alabama, Arkansas, Louisiana, Michigan, Ohio, Oklahoma, South Carolina and Texas.

The brief also shreds the argument that denying federal funds for failing to voluntarily cooperate in immigration law enforcement is unconstitutional by pointing out the case of South Dakota v. Dole.

In that case the Supreme Court held that it is constitutional for Congress to withhold federal funds from states that failed to raise the legal drinking age to 21.

The brief also noted that — unlike another high court case, Printz v. U.S., in which the court said Congress could not force states to conduct gun background checks — the executive order does not require states to assist in enforcing immigration law, but merely prevents states from prohibiting local law enforcement from cooperating voluntarily with the federal government.

Laxalt’s press release notes that all 17 currently elected county sheriffs have consistently opposed sanctuary city policies and that in the vast majority of cases an individual must be arrested for committing a crime and booked into a jail before Nevada lawmen notify immigration authorities.

“So-called ‘sanctuary cities’ have no right — constitutional or otherwise — to enlist the courts in their attempt to subvert lawful federal immigration authority,” added Laxalt. “Especially when sanctuary policies create public-safety threats to neighboring states.”

We applaud the attorney general for sticking up for the rule of law and public safety, at negligible cost to the taxpayers of Nevada.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Newspaper column: Democrats doubly wrong in effort to gag free speech

Supreme Court justices listen to President Obama rebuke them in 2010 State of the Union speech for Citizens United decision a week earlier. (AP pix)

Democrats keep pounding on a solution in search of a problem.

In January of 2010 the Supreme Court held that it is unconstitutional to prohibit political campaign spending by corporations and unions. In the case of Citizens United v. FEC the court struck down a law under which the Federal Election Commission barred the airing of a movie produced by Citizens United that was critical of then-presidential candidate Hillary Clinton.

Within the week, in his first State of the Union address to Congress, President Obama lambasted the justices to their faces, saying the court had reversed a century of law. “I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities,” he said. “They should be decided by the American people. And I urge Democrats and Republicans to pass a bill that helps correct some of these problems.”

During her losing campaign against Donald Trump, Clinton said she would consider supporting a constitutional amendment to overturn the Citizens United decision to “prevent the abuse of our political system by excessive amounts of money …” even though she outspent Trump by two-to-one, $1.2 billion to $600 million.

In 2014 every Democrat present on the floor of the Senate voted to pass a constitutional amendment that would have empowered Congress and the states to pass laws abridging the freedom of political speech.

Nevada’s long-serving Democratic Sen. Harry Reid argued in favor of that amendment, saying “the flood of special interest money into our American democracy is one of the greatest threats our system of government has ever faced.”

His successor, Democrat Catherine Cortez Masto, has taken up the cudgel, also calling for a constitutional amendment. “The U.S. Constitution puts democratic power in the hands of the American people — not corporations or private companies,” she said. “Since the Citizens United decision, big corporations have gained unprecedented influence over elections and our country’s political process. I am proud to be a cosponsor of this legislation; it’s critical that we end unlimited corporate contributions if we are going to have a democratic process and government that will truly work for all Americans.”

Newly elected Democratic Congresswoman Jacky Rosen stated shortly after her election, “Washington hasn’t been listening to the concerns of Southern Nevada because unlimited dark money flooding our elections is drowning out the voices of real people in our community.”

Both Democratic Reps. Ruben Kihuen and Dina Titus have expressed support for a group called “End Citizens United.”

The Democrats in the Nevada Legislature also waded in with a resolution urging Congress to overturn Citizens united. It passed without a single Republican vote.

First, the Democrats are wrong on principle. The fact that an expenditure is coming from a group instead of an individual does not negate the First Amendment guarantee of the freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely, because it also guarantees the right of citizens to assemble peaceably and to petition their government.

An assembly is not just a crowd of people on the street, it is also an organization, a corporation or a union.

Second, their premise that excessive spending overwhelms and subverts the system is demonstrably wrong.

Not only does the spending gap between Clinton and Trump demonstrate the fallacy, but just this past week an obscure special election for a House seat in Georgia underscored the error of their rationale.

In that race Democrat Jon Ossoff outspent his Republican opponent Karen Handel by seven-to-one and still lost by 4 points.

And talk about special interest money. Democrat Ossoff, between March 29 and May 31, reported receiving 7,218 donations from California, but only 808 donations from Georgia. Overall, he got $456,296.03 from Californians, compared to $228,474.44 from Georgians.

Even when all the third party money is accounted for, spending in support of Ossoff amounted to $30 million, compared to $21 million for Handel.

The Democrats are not only losing elections, but are losing the argument about the effectiveness of the influence of outside money. Being able to spend your own money on political speech is a fundamental aspect of free speech, but the ability to buy repeated messages does nothing to increase the persuasiveness of those messages.

The fundamental principle of democracy is that voters can listen to the free and unencumbered debate and discern what is best for themselves and the generations to come. To deny that is to deny and denigrate the foundation of this nation.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.