Newspaper column: Lawmakers hand out unconstitutional corporate gift to another billionaire

Gov. Brian Sandoval signs a bill giving public tax money to build a football stadium. (AP photo by John Locher)

Gov. Brian Sandoval signs a bill giving public tax money to build a football stadium. (AP photo by John Locher)

Meeting in special session in Carson City this past week Nevada lawmakers opened the windows and threw caution and tax money to the wind, voting to raise the room tax rate in much of Clark County by 0.88 of a percentage point in order to contribute $750 million toward construction of a 65,000-seat domed football stadium estimated to cost $1.9 billion.

The measure, Senate Bill 1, passed by the constitutionally mandated two-thirds majority in both the Senate and Assembly – 16-5 in the Senate and 28-13 in the Assembly.

The stadium is being pushed by billionaire casino and newspaper owner Sheldon Adelson who promises to shell out $650 million from his rather deep pockets to pay for construction. The National Football League and the Oakland Raiders are supposed to contribute $500 million toward construction. The $750 million public sop is the largest ever by any public entity for a sports facility in this country.

All profits from stadium operations accrue strictly to the private investors.

At one point during the Assembly hearings, Assemblyman Ira Hansen of Sparks asked what happens if the stadium comes in under the $1.9 billion estimate. Would the taxpayers still be on the hook for the full $750 million?

Steve Hill of the Governor’s Office of Economic Development, which had touted the project, replied: “Technically that’s correct.”

Before Hill could elaborate, Hansen cut him off with a terse: “Thank you.”

So, if the project comes in closer to the original estimate of $1 billion, the taxpayers will pick up 75 percent of the cost and the billionaires keep their money.

One of those testifying against the public spending for a football stadium for the Raiders was former Las Vegas City Councilman Frank Hawkins, who noted that he played seven seasons for the Raiders, including winning a Super Bowl. Hawkins said billionaires don’t need the public tax money to fund 40 percent of their stadium. He also noted that Raiders owner Mark Davis had called to try to change his mind by agreeing to no television blackouts locally for games that are not sellouts.

SB1 creates a stadium authority to build and operate the stadium, exempts the authority from any legal requirements for competitive bidding and makes just about every financial deal cut by the authority exempt from public records laws.

The bill says “the Stadium Authority shall keep confidential any record or other document provided to the Stadium Authority by a developer partner, the National Football League team or the Stadium Events Company,” if asked to do so. The public will be kept in the dark about whether their “public” stadium is providing valuable public assets to a favored few at below market value.

The Legislature certainly has the power to create exemptions to existing laws.

What it does not have is the power to create exemptions to the state Constitution. That document 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.”

Professional football hardly qualifies as even a quasi public purpose unless you include “bread and circuses.”

This was the third special session in as many years. The previous two handed out billions in tax breaks and abatements to the billionaire owners of electric car companies Tesla and Faraday Future.

Perhaps some public spirited group will ask the courts to take a look at this latest generous gift and determine whether it truly is for a public purpose.

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.

Update: Space was insufficient to provide this quote from a Nebraska court ruling:

“Every new business, manufacturing plant, or industrial plant which may be established in a municipality will be of some benefit to the municipality. A new super market, a new department store, a new meat market, a steel mill, a crate manufacturing plant, a pulp mill, or other establishments which could be named without end, may be of material benefit to the growth, progress, development and prosperity of a municipality. But these considerations do not make the acquisition of land and the erection of buildings, for such purposes, a municipal purpose. Our organic law prohibits the expenditure of public money for a private purpose. It does not matter whether the money is derived by ad valorem taxes, by gift, or otherwise. It is public money and under our organic law public money cannot be appropriated for a private purpose or used for the purpose of acquiring property for the benefit of a private concern. It does not matter what such undertakings may be called or how worthwhile they may appear to be at the passing moment. The financing of private enterprises by means of public funds is entirely foreign to a proper concept of our constitutional system. Experience has shown that such encroachments will lead inevitably to the ultimate destruction of the private enterprise system.”

This and the Arizona court ruling were cited by the the Nevada Policy Research Institute’s Center for Justice and Constitutional Litigation in its case against the Governor’s Office of Economic Development for handing out state gifts to companies such as SolarCity.


Instead of addressing state’s problems lawmakers give us diversion

Football is, appropriately enough, a gladiatorial sport.

Nevada public school graduates scored worst in the nation on ACT tests, which measure college preparedness.

The state Supreme Court ruled the education savings accounts law, which would help students escape failing public schools, funding method was unconstitutional, but it was not urgent enough to consider in a special session of the Legislature.

Wild horses overpopulate the range and are running ranchers out of business.

Federal public land restrictions are hampering mining, ranching, oil and gas exploration and other economic uses.

Ten counties face monopolies and higher premiums and deductibles when it comes to access to ObamaCare.

Nevada needs to improve its transportation infrastructure and is asking voters in each county to allow fuel taxes to be indexed to inflation.

Nevada faces more than $40 billion in unfunded liabilities for public employee pensions.

The next biennium budget faces a $400 million shortfall in revenue even though lawmakers in 2015 raised taxes $1.5 billion, the highest increase ever.

So what do the governor and the state lawmakers do during this past week’s special session? They agree to spend $750 million in tax money to help build a football stadium for a billionaire casino owner and a billionaire NFL team owner.

On top of that the Nevada Department of Transportation says $900 million in road projects will be needed to be accelerated to accommodate the stadium traffic, which means $900 million in roadwork elsewhere will be delayed.

Instead of addressing the public service needs, they give us bread and circuses — without the bread.

Newspaper column: Nevada taking lead in challenging new overtime rule

New labor rules being arbitrarily foisted on the private and public sectors by the Obama administration in his final year in office will cost the economy $80 billion — nearly half of that, $33 billion, due to a new rule raising the number of workers who must be paid overtime by 12.5 million — and eliminate 150,000 jobs over the next decade, according to the the National Association of Manufacturers.

Nevada is leading the way in challenging the overtime change that increases the wage floor for executive, administrative and professional (EAP) workers who must be paid time and half for any hours worked in excess of 40 hours from $455 per week to $913 per week, starting on Dec. 1.

Recently Nevada’s three Republican Congressmen Joe Heck, Cresent Hardy and Mark Amodei joined in a near-party-line vote in the House to delay the overtime rule change for six months. Democrat Dina Titus, of course, opposed it. On to the Senate.

But the challenge most likely to be effective is a legal challenge by 21 states in which Nevada is taking the lead — Nevada v. U.S. Department of Labor — which was filed recently in the Eastern District of Texas. In addition to Nevada and Texas, the challenging states are: Alabama, Arizona, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, New Mexico, Ohio, Oklahoma, South Carolina, Utah and Wisconsin.

The suit challenges the new overtime rule as a usurpation of the powers granted Congress by the Constitution and a violation of the Federalism principle embodied in the Tenth Amendment.

Nevada Attorney General Adam Laxalt said in a press release announcing the litigation, “Longstanding federal law requires an overtime exemption for ‘bona fide executive, administrative, or professional’ employees. Ignoring this federal law, the Department of Labor by executive fiat is forcing state, local and private employers to pay overtime to any employee who earns under a certain amount, regardless of whether that employee is actually performing ‘executive, administrative, or professional’ duties.”

The Fair Labor Standards Act was passed in 1938 and required that workers engaged in interstate commerce be paid a federal minimum wage and overtime for any hours worked in excess of 40 hours a week. It included an exception for “any employee employed in a bona fide executive, administrative, or professional capacity …”

Later amendments applied the law to all state and local government employees, but in 1976, according to the lawsuit, the Supreme Court ruled the Tenth Amendment limited Congress’s power to impose such rules on the states.

The court backed off that finding a decade later and said, “The political process ensures that laws that unduly burden the States will not be promulgated.”

Au contraire, says the lawsuit, “Subsequent Commerce Clause, Tenth Amendment, and Eleventh Amendment decisions call the continuing validity” of that decision into question.

In March Obama ordered the labor department to change the overtime rule. “Because these regulations are outdated, millions of Americans lack the protections of overtime and even the right to the minimum wage,” his memo said.

Nevada v. Labor spells out the especially onerous burden the overtime rule places on state and local governments, “Because the Plaintiff States cannot reasonably rely upon a corresponding increase in revenue, they will have to reduce or eliminate some essential government services and functions. For example, certain infrastructure and social programs may be reduced or cut. The Plaintiff States’ budgets will have less discretionary funds available because, as result of the new federal overtime rule, a greater percentage of their funds will be devoted to employment costs against the States’ will. These changes will have a substantial impact on the lives and well-being of the Citizens of the Plaintiff States,” adding that private employers will suffer the same ill effects.

The plaintiffs note that the Supreme Court tossed out as unconstitutional a provision in ObamaCare that required states to expand Medicaid coverage, calling that “economic dragooning” — an apt comparison.

The press release accompanying the lawsuit quoted the Nevada Resort Association, whose members employ nearly a third of Nevada workers and provide almost half the state’s tax revenue, as saying, “By nearly doubling the threshold amount for exempt employees, the regulation results in abrupt increases in taxes and labor costs. Such dramatic increases are particularly difficult to manage in an industry with tens of thousands of employees and in which labor costs are a significant percentage of total expenses.”

The courts and Congress can’t act quickly enough to fend off this job and economy killing move by Obama.

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.

Heck joins call for Trump to exit race for president

Donald Trump Friday. (AP photo via WSJ)

Donald Trump Friday. (AP photo via WSJ)

Friday afternoon, Republican Senate candidate Joe Heck’s campaign sent out an email strongly condemning the misogynistic language used by Republican presidential nominee Donald Trump that was caught on tape 11 years ago. (Here is a link to the tape, but the language is too foul to post.)

Today, Heck joined others in the party calling for Trump to step aside as a candidate and said he will no longer support him or vote for Democrat Hillary Clinton.

“I believe our only option is to formally ask Mr. Trump to step down and allow Republicans the opportunity to elect someone who will provide us with the strong leadership so desperately needed and one that Americans deserve,” his campaign email quoted him as saying.

But Trump, as reported by The Wall Street Journal, said he will not quit.

WSJ reports former GOP presidential contender Carly Fiorina has called on Trump to quit the campaign, as have Sens. Mike Crapo of Idaho and Mike Lee of Utah. Others are withdrawing endorsements.

Republican Sen. John Thune of South Dakota today tweeted that Trump “should withdraw and Mike Pence should be our nominee effective immediately.”

Fox reports that Senate Majority Leader Mitch McConnell and House Speaker Paul Ryan have chastised Trump for his lewd comments.

Even Pence slapped Trump. “As a husband and father, I was offended by the words and actions described by Donald Trump in the eleven-year-old video released yesterday,” he said in a statement. “I do not condone his remarks and cannot defend them.”

The 70-year-old Trump apologized, but could not unring the bell.

After Heck criticized Trump’s taped language, his Democratic opponent, Catherine Cortez Masto, former state attorney general, was quoted by the AP as saying condemnations ring hollow if Heck is still voting for Trump.

The AP quoted Danny Tarkanian, who is running for Congress against Democrat Jacky Rosen, as saying, “As the father of three girls, I find these comments disgusting. No man should ever talk about women like that.”

Republican Rep. Cresent Hardy, seeking re-election to Congress, said “no woman should ever be treated or described this way. There is no place for this kind of rhetoric in our society.”

Here is the full comment from Heck today:

“I’ve spent much of my life serving in the military where I stood beside some of the bravest men and women this country has to offer — willing to put themselves in harm’s way to protect the freedoms upon which this country was founded. They live by a code of honor, of decency and of respect. 

“As a husband and a father, I strive to bring that same code of honor into my personal life.

“I believe any candidate for President of the United States should campaign with common ethical and moral values and decency. I accept that none of us are perfect. However, I can no longer look past this pattern of behavior and inappropriate comments from Donald Trump. Therefore, I cannot, in good conscience, continue to support him nor can I vote for Hillary Clinton.

“My wife, my daughters, my mother, my sister and all women deserve better. The American people deserve better.

“Our campaign will move forward, and continue to be based on the core principles of the Republican Party, the need for conservative leadership and the requirement that all people be treated with respect and dignity.

“My hope is that this will not divide us and that we can unite behind Republican principles. We deserve a candidate who can ask him or herself at the end of the day, ‘Did I live my life with honor and do I deserve to be elected president of the United States.’

“I believe our only option is to formally ask Mr. Trump to step down and allow Republicans the opportunity to elect someone who will provide us with the strong leadership so desperately needed and one that Americans deserve.

“Today, I stand here disappointed in our choices for president but more committed than ever to bringing that same code of honor, decency and respect to the United States Senate.”

The Republican Party never should have nominated this reprobate in the first place. His track record was well known. He is not now nor has he ever been a Republican.


Editorial: Rural residents being harmed by health care changes

From the beginning under ObamaCare rural residents throughout the nation have had fewer choices for health care coverage and have been charged considerably higher premiums than those in urban areas.

As insurers flee the ObamaCare market there is even less competition and still higher rates.

It has reached the point that in 2017 a majority of Nevada counties — Esmeralda, Mineral, Humboldt, Pershing, Churchill, Lincoln, White Pine, Eureka, Lander, and Elko — will have only one firm offering coverage under the ObamaCare program.

To ameliorate the blow to residents of single-provider counties nationwide, Nevada Republican Reps. Joe Heck, Mark Amodei and Cresent Hardy a couple of weeks ago introduced a bill that amends the Internal Revenue Code to exempt those residents from the requirement to pay a tax penalty if they fail to maintain minimum health coverage under ObamaCare, or as it is laughably titled, the Affordable Care Act.

Heck is running for the Senate seat being vacated by the retirement of Harry Reid, who rammed through ObamaCare — using deals such as the Cornhusker Kickback and the Louisiana Purchase — without obtaining the vote of a single Republican.

The bill is called Protection from Insurance Exchange Monopolies Act, H.R. 6049. It has been referred to the House Ways and Means Committee.

In the coming year there will be only three companies offering ObamaCare coverage in Nevada — Anthem, Health Plan of Nevada, and Prominence Health Plan (formerly St. Mary’s). In the 10 counties listed above the only carrier option is Anthem.

All three congressmen commented on the necessity of their bill in a press release.

“The better way to solve rural Nevada’s access to health care is to replace Obamacare with a fairer and more patient-centered approach,” Hardy said. “But as long as ObamaCare is the law, Nevadans shouldn’t be forced to pay a tax on a monopoly caused by a government mandate that forced out other competition. All Nevadans, and particularly those in our rural communities, deserve access to more health care choices and lower health care costs.”

“The Affordable Care Act promised Nevadans more healthcare choices and lower costs but, as expected, we now know those promises were empty” Heck said. “Nevadans in 10 counties will be living under an ObamaCare insurance monopoly in 2017 and it is unfair to inflict a penalty tax on residents in counties with only one carrier option. This is yet another example of the failures of the ACA and highlights the urgent need to replace the broken parts of the law with healthcare reforms that actually expand access to quality, affordable care.”

“President Obama promised his healthcare law would bring Americans ‘more choice’, ‘more competition’, and ‘real health care security,’” Amodei said.  “Despite the president’s assurances, ObamaCare has delivered nothing more than higher premiums and less choices – with millions of Americans having even fewer choices in 2017. In Nevada, ObamaCare will soon be leaving residents in 10 counties with only one choice – choose what Washington says is right for them – or pay the penalty. By allowing people who reside in areas with less than two provider options to be exempt from the individual mandate, our bill provides much needed relief to those who have been left with no alternative.”

Repealing ObamaCare is the preferred solution, but this is a worthy patch in the meantime.

Adding further problems for rural communities, in January the Centers for Medicare and Medicaid Services changed the reimbursement process for medical suppliers. CMS is now using bids from metro areas to start cutting reimbursement rates in rural areas.

But providing care in rural areas can be more expensive due to distances between patients and providers and the time and expense it takes to cover those distances. The Medicare reimbursement rate has been cut by more than 50 percent for many items.

Health care providers are hoping Congress remedies the devastating cuts to Medicare reimbursement rates that are impacting medical suppliers throughout the country. Many providers are cutting services or refusing to take new patients. Some are even closing their doors.

Congress needs to act on both of these problems for rural America.

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.

Where is the nearest doctor?

Where is the nearest doctor?

Newspaper column: Education savings accounts not yet saved

Though the Nevada Supreme Court this past week jettisoned most of the arguments that somehow the state’s education savings account (ESA) law is unconstitutional, it still barred enforcement of the law, saying lawmakers failed to properly appropriate money for the ESAs.

It is now up to lawmakers to fix that flaw.

The justices found that Senate Bill 515, which sets aside per pupil funding in the Distributive School Account (DSA), did not even mention ESAs and Senate Bill 302, setting up ESAs, did not “appropriate” funds, even though both bills amend the education financing section of state law (NRS 387) and SB302 added to the already lengthy list of DSA deductions “all the funds deposited in education savings accounts.”

A niggling technicality.

Until the court derailed it, SB302 outlined a program under which the state treasurer was directed to establish an education savings account for any eligible child enrolled in a public school for the previous 100 consecutive days — when the clock now starts is anyone’s guess — and for most the account would be equal to 90 percent of the statewide average per pupil funding, or currently $5,139. There is no limit on the number of accounts.

In a ludicrous aside in the opinion, the court noted the education statute has a hold-harmless clause to protect against wild gyrations in enrollment and suggested that “if all the students left the public school system, the State must fund both the school district’s per pupil amount based on 95 percent of the prior year’s enrollment and the education savings accounts for all students, an amount potentially double the $2 billion appropriated in SB515 for just the public schools. Given that scenario, surely the Legislature would have specified a number of education savings accounts or set a maximum sum of money …”

What would a district with no students spend the money on?

At least a couple of major constitutional hurdles for ESAs have been cleared.

The court dismissed the contention that SB302 violates the state Constitution’s prohibition against using public funds for sectarian purposes. “We disagree. Once the public funds are deposited into an education savings account, the funds are no longer ‘public funds’ but are instead private funds of the individual parent who established the account,” the court opined. “The parent decides where to spend the money for the child’s education and may choose from a variety of participating entities, including religious and non-religious schools.”

The court also dismissed the notion that the state may only expend funds for public schools, noting repeatedly that the state Constitution instructs the Legislature to support education “by all suitable means” and noted that the drafters of the founding document “rejected the notion of making public school attendance compulsory, and acknowledged the need to vest the Legislature with discretion over education in the future.”

So, ESAs are now on the fast track to legislative approval at some future date before the 8,000 children who have applied for them have children of their own, right?

Attorney General Adam Laxalt, whose office defended the law in court, said, “The Court ruled against the State on a small funding issue that was not even debated or contentious when this bill was passed. Fortunately, the Supreme Court has made crystal clear that ESAs are constitutional and that the Legislature can fix this funding technicality and allow for the implementation of ESAs statewide.”

Gov. Brian Sandoval put out a statement after the high court ruling indicating he does not plan to call lawmakers into a special session and will leave the fixing of the appropriation up to the 2017 legislative session, which opens in February.

“Although the court found the current funding mechanism for Education Savings Accounts unconstitutional, there may be a path for a legislative solution,” Sandoval said in that statement. “However, such a solution is complex and must be well thought-out to meet constitutional muster. … I also believe it is important to consult with legislative leadership on this issue as we approach the 2017 legislative session.”

The fly in that ointment is that there is an election in November and it is entirely possible Democrats, with the backing of their teacher unions, just might gain a majority in either the state Senate or Assembly — in which case, ESAs are dead for the foreseeable future, because not a single Democrat voted for ESAs in 2015.

On Wednesday, Sandoval called a special session for Monday but did not put ESAs on the agenda.

 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: Time to cut occupational licensing requirements in Nevada

With Nevada still clinging to its ignominious ranking of second worst in the nation in joblessness, more needs to be done to clear away the hurdles for those seeking to earn a decent living.

One place where the deadwood can be cleared is in the area of professional licensing requirements. Too often such licensing is little more than a protection racket for those in certain professions who don’t want any more competition.

According to the Virginia-based Institute for Justice, which litigates to advance liberty by challenging government encroachment and restrictions, Nevada has the fourth most onerous professional licensing scheme in the country.

An Institute for Justice analysis from a couple of years ago — nothing has really changed in the interim — noted that Nevada requires licensing for 55 out of 102 moderate-income occupations. We’re not talking about doctors and lawyers. We’re talking about bricklayers, makeup artists, bus drivers, painters, manicurists and animal trainers.

“Nevada is the most expensive state in which to work in a licensed lower- and moderate-income occupation, with average fees of $505. It also requires an average of 601 days of education and experience and two exams,” IJ found.

Often the excuse for requiring occupational licensing started out as a concern for public safety. No one wants a barber who trims more ear than hair. No one wants a cinder block wall to fall on them. No one wants a pest control worker who doesn’t know to not use too much pesticide.

But IJ points out that Nevada’s education and experience requirements don’t seem to align with public safety concerns. “Emergency medical technicians can earn a license with just about 26 days of training. This is far less training than required of barbers, mobile home installers, cosmetologists, makeup artists, skin care specialists, manicurists and massage therapists,” IJ relates.

In fact, to become an interior designer in Nevada requires 2,190 days of experience and/or education. Only three states and the District of Columbia require licenses for interior designers. Various construction jobs require 1,460 days, while a travel guide requires 733 days and a makeup artist 210 days. To become an athletic trainer takes 1,460 days.

Then there is the cost for licensing fees.

“In many occupations, Nevada has by far the most expensive licensing fees,” according to IJ. “For example, to become an alarm installer requires $1,036 in fees, whereas the national average is $230 for fire and $213 for security alarm installers. A license costs animal trainers $770 in fees, compared to the national average of only $93. Aspiring mobile home installers must pay $566 in fees; the average is only $336.”

That travel guide license costs $1,500 in Nevada. While security and fire alarm licenses cost more than $1,000, you can obtain a security guard license and a child care worker license at no cost with only two days of training.

To chip away at that unemployment ranking, licensing just might be a place to start. Slash fees and reduce the amount of experience and education required in many occupations. Better yet eliminate the licensing requirements entirely for many occupations where employers are the better judge of employee qualifications and skills.

“All Americans deserve the opportunity to earn an honest living. Yet occupational licenses, which are essentially permission slips from the government, routinely stand in the way of honest enterprise,” IJ argues. “Without these licenses, workers can face stiff fines or even risk jail time. The requirements for licensure, though, can be an enormous burden and often force entrepreneurs to waste their valuable time and money to become licensed. Additionally, these burdens too often have no connection at all to public health or safety. Instead, they are imposed simply to protect established businesses from economic competition.”

We agree.

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.