Editorial: Anti-conversion therapy law tramples free speech rights

With the turning of a page of the calendar to a new year comes a host of new laws on the books in Nevada, among them is a law banning therapists from engaging in something dubbed conversion therapy.

The new law makes it illegal for any psychotherapist in Nevada to provide conversion therapy to anyone under the age of 18. That is defined as “any practice or treatment that seeks to change the sexual orientation or gender identity of a person.”

This therapy is barred “regardless of the willingness of the person or his or her parent or legal guardian to authorize such therapy.” The bill description justifies this usurpation of individual and parental rights by claiming the practice is ineffective and potentially harmful.

What is therapy? It is speech.

The bill specifically prohibits a professional health care provider from talking to an underage patient about whether their gender confusion is real or not, but just as specifically allows support or confirmation for “a person undergoing gender transition …” or provides “acceptance, support and understanding of a person or facilitates a person’s ability to cope, social support and identity exploration and development …”

One may not discourage a patient’s gender feelings but may encourage. Thus only speech that contains the government-approved content is permitted.

The courts have repeatedly ruled that laws that limit speech based solely on its content violates the First Amendment.

In a recent article, Michelle Cretella, president of the American College of Pediatricians, reported that she had a male patient who between the ages of 3 and 5 increasingly played with “girl toys” and said he was a girl. She referred the parents and the boy to a therapist, who discovered that the boy had a younger special needs sister who required a significant amount of attention from her parents. The boy perceived that his parents preferred girls and thus he would become one.

“With family therapy Andy got better,” Cretella wrote.

In Nevada, that therapist now could have his or her license revoked for engaging in conversion therapy.

Presumably under this law, a therapist could be punished for telling a patient that 80 to 95 percent of all children who express feelings of gender dysphoria abandon those feelings upon maturity and that more than 80 percent of youth claiming to experience same-sex attractions in late childhood and adolescence identified themselves as exclusively heterosexual upon becoming adults.

Would telling a minor to wait and let nature take its course violate the law?

In the waning days of the 2017 legislative session the bill that is now law was amended in an attempt to protect religious counselors from being punished under the law, but it is a contortion that adds only confusion.

That amendment stated “there is nothing in this bill that regulates or prohibits licensed health care professionals from engaging in expressive speech or religious counseling with such children if the licensed health care professionals: (1) are acting in their pastoral or religious capacity as members of the clergy or as religious counselors; and (2) do not hold themselves out as operating pursuant to their professional licenses when so acting in their pastoral or religious capacity.”

So, which hat is the professional licensee wearing when talking to a child about gender? The pastor hat or the doctor hat?

Unfortunately, the federal circuit courts have rejected arguments that a similar California law violates both the free exercise of religion and free speech aspects of the First Amendment and the Supreme Court has thus far declined to hear appeals.

Now that the law is on the books in Nevada and livelihoods are in jeopardy, someone should take another stab at challenging the constitutionality of this law in court.

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.

Gov. Sandoval signs anti-conversion therapy law.

Newspaper column: Gun law backers too wily for their own good

The backers of a 2016 ballot initiative to create a state law requiring criminal background checks for all private party gun sales — something not required by federal law — are asking the courts to fix a fatal flaw that they themselves created.

Failure to comply with the Background Check Act requirement would carry a penalty of up to a year in jail and a $2,000 fine — if it were enforceable.

The measure, Question 1 on the November ballot, passed with a mere 50.45 percent of the vote, failing in every county except Clark.

The initiative backers — in order to avoid having a fiscal note saying what the mandatory background checks would cost taxpayers, something that might cost votes — wrote the new law to say that those in involved in a private gun sale must contact a licensed gun dealer to conduct a background check and: “The licensed dealer must contact the National Instant Criminal Background Check System [NICS], as described in 18 U.S.C. § 922(t), and not the Central Repository, to determine whether the buyer or transferee is eligible to purchase and possess firearms under state and federal law …”

The Central Repository is handled by the Nevada Department of Public Safety and uses NICS data as well as state and local data to run background checks required by federal law and those sought voluntarily by private gun sellers.

After the initiative passed the FBI was twice asked if would conduct the private sale background checks for the state, but refused, saying state law “cannot dictate how federal resources are applied.”

Attorney General Adam Laxalt’s office issued an opinion saying the law is unenforceable since the state could not force the federal government to perform the background checks and the law specifically prohibits the state from doing so.

The lawsuit filed earlier this month on behalf of three individuals names Gov. Brian Sandoval and Laxalt as defendants. The suit asks the court to force Sandoval to enforce the background check law or, in the alternative, to sever any portion of the law that is invalid or unenforceable. In other words, rewrite the law that the voters so narrowly approved.

Like most laws the Background Check Act contains a severability clause that states if any portion of the law is found invalid or unconstitutional that should not affect the law as a whole because that part could be excised. But the section that the suit seeks to remove was placed there specifically to avoid incurring cost to the taxpaying voters. Without that section the election outcome might well have been different.

On the day the suit was filed Laxalt sent an opinion to the governor telling him that he has the authority to again ask the FBI to conduct private sale backgrounds, but that the request would be “unique and unprecedented” and might jeopardize the state’s current status in which it conducts all federally required and voluntary private sale background checks.

In the December opinion declaring the Background Check Act unenforceable, Bureau Chief Gregory Zunino pointed out that the state-run background checks are in fact superior to those run through just the federal database.

“Because background checks run through Nevada as the Point of Contact incorporate data from both NICS and Nevada’s own state records, the process as currently administered by the Department ensures that persons legally barred from firearms possession do not circumvent the bar simply because the FBI may lack records that Nevada possesses, like mental-health records, records of domestic violence, misdemeanor criminal records, arrest reports, and restraining orders,” Zunino noted. “By having Nevada serve as the Point of Contract, a wide net is cast. The FBI recently suggested, for instance, that the lack of Point of Contact program in South Carolina played a role in Dylan Roof acquiring a gun before murdering nine congregants at a church in Charleston, South Carolina.”

It should be noted that the gunman who fired into a country music concert from the 32-second floor of the Mandalay Bay killing 58 and injuring about 500, obtained his dozens of weapons legally, passing all required background checks in Nevada and several other states.

The initiative was a futile gesture at best, but the backers outsmarted themselves by trying to hide its true cost from the voters.

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.

Harry bounces off the walls in newspaper interview

Gov. Brian Sandoval should sue for slander.

During an editorial board meeting with the Reno Gazette-Journal, Harry Reid was bouncing off the walls like a rhetorical cue ball — calling Joe Heck the most fraudulent person he has seen in 50 years in politics, accusing the mother of a Benghazi victim of being crazy and praising Sandoval.

Harry Reid (RGJ photo)

“I wish we had more Republicans like Brian Sandoval, who you haven’t seen rushing to endorse this Republican nominee Donald Trump,” the paper quoted Reid as saying. “But Joe Heck, whoa, man, he loves this guy. He campaigns with him and thinks he’s the best. So, I like Brian Sandoval a lot. We need more Republicans like him.”

Sandoval should sue. For Harry Reid to praise anyone with an R after his name is defamation and libel per se.

The paper got a reaction from Heck but failed to give Sandoval a chance for a rejoinder.

“We all know Harry hasn’t been firing on all cylinders over the past couple years and this is just another example of how out of touch he is with Nevadans,” Heck said in a statement to the paper. “His retirement cannot come soon enough so that Nevada can have someone who truly represents them in this seat.”

The best laugh line of the meeting was: “I don’t accept anybody that criticizes me for being partisan, because I’m not. Only when I have to be, which is a lot lately.”

Economy of the West dodges a bullet as greater sage grouse not listed — or did it?

Male sage grouse (BLM photo)

Considering the propensity of federal bureaucrats to ignore the citizens and accumulate more and more power to themselves, I did not see this coming. Today the Secretary of the Interior Sally Jewell announced that the greater sage grouse will NOT be listed under the Endangered Species Act. She credited conservation efforts across the West.

“Our review of the best available scientific and commercial information indicates that the sage-grouse is not in danger of extinction nor likely to become endangered within the foreseeable future throughout all of its range,” the Fish and Wildlife Service concluded in its usual bureaucratic redundancy in a concise 341-page announcement. (Do they get paid by the word?) “Additionally, we determined that the sage-grouse is not in danger of extinction now or within the foreseeable future throughout either the Rocky Mountain or Great Basin portions of its range. Therefore, the sage-grouse is not in danger of extinction nor likely to become endangered within the foreseeable future throughout a significant portion of its range. Therefore, we find that listing the sage-grouse as an endangered or threatened species under the Act is not warranted at this time.”

This was immediately followed by a warning caveat that state and local officials should pay close heed to: “Our determination today is based on the best scientific and commercial data currently available. That determination, however, cannot guarantee that the sage-grouse (or other sagebrush ecosystem species) will not in the future warrant listing under the Act.”

With that in mind Gov. Brian Sandoval said, ““I am cautiously optimistic that this is good news for Nevada and I am pleased that U.S. Fish and Wildlife Service has come to this decision, but there is more work to be done. I am asking all local, state and federal leaders including the Sagebrush Ecosystem Council to stay at the table to resolve some key issues and continue their strong advocacy for implementation of Nevada’s plan. We will closely monitor the implementation of this decision so that every option remains available to our state.”

Of course the cactus huggers had a conniption. John Horning, executive director of WildEarth Guardians, spewed, “That is the great tragedy of the day, that this decision would be based on politics not science,” adding that his group will challenge the decision in federal court.

But Rep. Crescent Hardy’s office sent out a press release noting that the good news still comes with a some hard to swallow restrictions, such as the decision to finalize a land use plan to protect sage grouse, even though it is not to be listed.

“I was very disappointed to learn of the Department of Interior’s decision to aggressively advance an agenda that puts the interests of a small contingent of environmental extremists over those of rural Nevada’s hardworking families,” Hardy said. “Today’s announcement confirms this was never fully about protecting any particular species.

“This is yet another stark reminder of the challenges Western states like Nevada face when the federal government controls so much of the land within our borders. Despite controlling 84 percent of the greater-sage grouse’s range in our state, the federal government has chosen to punish our communities for its own mismanagement by severely restricting every Nevadan’s access to our public lands. Without access to traditional land uses in Nevada — mineral exploration, energy extraction, and ranching — states like Nevada wouldn’t be what they are today. This policy not only disregards our historic way of life, but it also threatens the local economies of some of the hardest hit areas from the Great Recession.”

Tesla opts for lithium from Mexico, not Nevada

It appears the Tesla decision to build a battery factory near Sparks was about the $1.3 billion in tax breaks and not the proximity to Nevada’s own lithium mines.

The Wall Street Journal is reporting that Tesla has contracted for lithium ore from two companies that have rights to land in northern Mexico.

Someone tell Gov. Sandoval.

Tesla battery factory (AP photo via WSJ)

Sandoval lashes out at criticism of tax without rebutting a single fact

Gov. Brian Sandoval engaged in the lowest of political treachery and deception, launching into an ad hominem attack on the Tax Foundation’s analysis of his business license fee (BLF) based on graduated gross receipts.

Sandoval said of the study commissioned by the Las Vegas Metro Chamber of Commerce:

“The report issued today by the Las Vegas Metro Chamber of Commerce’s Tax Foundation is utterly irresponsible, intellectually dishonest and built upon erroneous assumptions. I know I am not alone in expressing my disappointment in the Chamber’s judgment especially for an organization that repeatedly claims to want to help move Nevada forward. Moreover, this act sits in direct contradiction to what the Chamber’s leaders have expressed to me on several occasions privately in my office. The only good to come from this stunt is that for those of us who are working in good faith to solve Nevada’s education challenges, it removes all doubt about where the Las Vegas Chamber stands. I believe the Chamber’s leaders have done their membership a terrible disservice and have harmed the credibility of an organization that purports to stand for education.”

The statement is all bluster and void of facts. He names not a single erroneous assumption. He makes no cogent argument, instead resorting to salacious name calling.

On the other hand the Tax Foundation study was dripping with facts and figures.

Gov. Brian Sandoval (Reno Gazette-Journal photo)

It is Sandoval who is probably engaging in erroneous assumptions. Both the Tax Foundation and the Nevada Registered Agent Association both say Sandoval’s estimation that the BLF will eventually net $250 million a year in revenue is wildly inflated. The agents say it is overstated by $65 million a year and the Foundation says it may be as much as $100 million. Both say the governor overstates how many will pay the tax.

The Foundation notes the governor projects a growth in the number of business licenses from the present 308,000 to 340,000.

The Foundation cites the agents’ study that estimated a net drop of 124,000 registered businesses in the state and a 55 percent reduction in new filings.

Of course, the spineless Chamber immediately disavowed any knowledge of the study and apologized to the governor for the “tone and tenor” of the study.

The Foundation called the tax a “complex, arbitrary tax that will do long-term harm to Nevada’s economic growth.”

“It will be Nevada’s most complex tax for both taxpayers and tax administrators, with a multi-step method of rate calculation bordering on arbitrary, 67 rates plus cliffs and phase-ins for each one, and unclear guidance for multi-industry and interstate companies,” the study said. “It is also decidedly non-neutral, with stated tax rates deliberately varying widely by industry such that it exacerbates tax pyramiding and likely violates federal prohibitions against discriminatory taxation.”

It also violates the state Constitution’s dictate that taxes be uniform and equal.

To illustrate the unfairness of the tax, the Foundation quotes the Guinn Center as saying: “Under the revised Business License Fee structure, publishing, software, and data processing were grouped into one category and taxed at a rate of 0.276 percent, the fifth highest rate. However, the profitability rate for those industries varies significantly: publishing (12.81 percent), software (4.19 percent), and data processing (0.80 percent).”

That is downright arbitrary and capricious, as well as utterly irresponsible, intellectually dishonest and built upon erroneous assumptions.

In an email responding to the governor’s ad hominem attack, the Tax Foundation listed key facts:

• The proposal would convert the existing flat $200 Business License Fee into a tiered system of 67 revenue ranges for each of 27 industry categories. Additionally, foreign filers and non-employer businesses would pay a flat fee of $400, bringing the total to 29 categories of filers and 1,811 possible flat-dollar-amount tax liabilities.
• The proposal is targeted to generate $250 million per year once fully implemented and is projected to raise $438 million over the first biennium. However, these revenue estimates may be overstated by hundreds of millions of dollars.
• While attempting to mitigate the inherent flaws of gross receipts taxes, the designers of the BLF created a complex tax structure that violates the principles of simplicity and neutrality. The proposal requires significant additional administration costs and compliance burdens, and a quick implementation invites disaster.
• BLF rates are arbitrarily calculated using Texas data from a single year, despite the high likelihood that such data is not representative of Nevada’s economy. BLF rates do not correlate with profitability, resulting in punitive taxes for some and taxation of unprofitable firms.
• The BLF designers incorporated revenue cliffs that result in absurdly high marginal tax rates, reaching as high as 13 million percent. BLF designers concede pyramiding will be a problem, violating the principle of neutrality.
• BLF industry categories were arbitrarily selected and will result in tax arbitrage and economic distortions, as seen in states with similar taxes.
• Texas and Washington, while providing the model for the Nevada BLF proposal, are considering proposals to repeal their analogous taxes.
• The BLF proposal violates the principle of transparency by mislabeling an obvious tax.
• The BLF as proposed likely violates the interstate commerce clause and federal law.

How did the governor craft his business license fee based on gross receipts?

Jeremy Aguero of Applied Analysis addressed a joint meeting of the state Senate and Assembly taxation panels and explained how those drafting the governor’s business license fee based on gross receipts came up with 27 different tax tables for 27 different industries, despite the fact the state Constitution requires taxation to be uniform and equal.

My best guess, and it is truly a guess, is that he is saying the different tables modify the “gross receipts” aspect to account for differing levels of profitability in different industries. It all seems rather contorted:

A translation would be welcome if anyone has one.

 

Governor helpfully parades out a former governor who actually spent huge sums to improve education

It was mighty nice of Gov. Brian Sandoval to dredge up and drag onto stage a living, breathing illustration of just how effective his plan to spend nearly a billion dollars on educational improvements will be.

During Wednesday’s hours-long orgasmic paean to the perks of plucking $250 million a year in higher business license fees from the private sector, Gov. Brian Sandoval invited three former governors to testify for his Senate Bill 252, which is basically margin tax lite, a thinner version of the tax proposal rejected by voters in November by 80 percent to 20 percent. One of those formers was Bob Miller, who served as governor from 1987 through 1998.

Miller pushed for and the 1989 Legislature approved a class-size reduction in grades first through third.

“I along with many people in this room have been fighting to modernize our education system through both reforms and the creation of a stable broad-based funding source, and this session is the best opportunity we will likely ever have to reach this goal,” Miller testified before a joint meeting of the state Senate and Assembly taxation panels. “In the 1990s our focus, mine and the Legislature, was on class-size reduction and early childhood programs like family to family and family resource centers, enhancing technology in our classrooms and a study on standards assessment accountability, but here we are today, and as most of you know, the statistics are depressing about our state’s education system.”

He went on to cite the facts that students are reading below grade level and 30 percent aren’t graduating from high school.

Since 1990 the state has spent close to $2.5 billion on Miller’s class-size reduction — which like Sandoval’s plans for all-day kindergarten, early childhood education and various special million-dollar programs was a no-brainer at the time — but the results have been nil. In fact, in some cases the results have run counter to what was expected.

A 2001 report by the Legislative Counsel Bureau found that, while principals, teachers, and parents were very positive in their attitudes toward class-size reduction, achievement data did not produce exceptional results. Students in larger classes outperformed those in the smaller classes.

Twenty-five years and billions of dollars later Miller is back and saying the system is broken and we need to spend billions of dollars more on special programs.

Two ideas Sandoval has put forward, but without much specificity, might improve things: stop promoting third graders who cannot read and provide incentive pay to teachers whose students show improvement on assessment tests. Neither costs anything more than is currently being spent.

Test scores for reading (blue) and math (red) for Washoe and rural schools by class size

Test scores for reading (yellow) and math (green) by class size in Clark County

 

James Guthrie, who served as Nevada’s  State Superintendent of Public Instruction from 2013 to 2014, said in an article posted on Nevada Policy Research Institute’s website:

The governor’s budget would spend additional millions on timid reforms such as expanded preschool, English language learning, opportunities for gifted students, staff for low performing schools, opposing cyber bullying, facility construction and more personnel for the State Education Department.

These proposals appear to be guided more by political expediency — greasing squeaky wheels  — than a goal of effective education. Moreover, by proposing to spend public dollars in less than fully productive ways, the governor’s plan risks the future of tens of thousands of students now trapped in underperforming schools.

The absence of a clear focus on a few high-return strategies wastes money, hurts students and squanders opportunity.

To counter low academic achievement, Nevada must recruit and retain larger numbers of effective teachers, place them where they are most needed and reward them for high performance. No new technology, textbook, class-size reduction, professional development or physical facility can substitute for effective teachers.

By identifying the most effective 10 percent of Nevada’s teachers and offering to pay them $200,000 a year in exchange for additional teaching and mentoring responsibilities, Nevada could become a magnet for teaching talent. As a state, we would have our pick of the nation’s best teachers. This entire plan can be accomplished with existing financial resources by repurposing dollars currently wasted on class-size reduction.

Nevada’s public schools lack accountability. No adults feel pain when children persistently fail.

 

 

 

 

 

A modest proposal to compromise on two competing business license fee bills

If you disliked Gov. Brian Sandoval’s business license fee scheme that is little more than a margin tax lite, you’ll like Assemblyman Jim Wheeler’s Assembly Bill 323.

The Republican rural assemblyman’s bill, unlike Sandoval’s bill which ties business license fees to gross receipts and cost anywhere from $400 to $4 million a year, would eliminate the current $100 fee altogether.

How about this compromise: Eliminate state business licensing completely. Close that part of the Secretary of State’s office and let the counties and cities handle it, or not, as they see fit.

Sandoval’s plan raises revenue, mine cuts expenses.

Jim Wheeler

 

 

Sandoval’s business license scheme is just margin tax lite

First of all, don’t call it a business license fee. It is a tax.

A fee is something you pay to cover the cost of a service. Getting a license requires a fee to cover the cost of the service.

Generating revenue for the general fund to pay for public education is a tax. Pure and simple. As such it will require a two-thirds approval by both houses of the Nevada Legislature.

Gov. Brian Sandoval proposed his business license fee scheme in his State of the State speech and is scheduled to outline it for legislative tax committees this week.

He insists the fee is different from the margin tax rejected by voters in November by four-to-one. The Nevada State Education Association managed to gather enough signatures to have its Nevada Education Initiative go before the voters. The initiative proposed a 2 percent margins tax on all Nevada businesses that gross more than $1 million a year.

Sandoval’s plan doubles the business license fee on all businesses from $200 to $400 and also imposes a tax on gross receipts, but it is less than 1 percent and starts at much lower levels of gross receipts. The law, introduced as Senate Bill 252, is a 130-page behemoth with 27 separate tax tables for different industries. For some industries the tax kicks in at about $125,000 a year and more others it doesn’t apply until nearly $200,000 a year.

While the margin tax allowed businesses to take one of three deductions: A. A straight 30 percent of revenues, leaving the tax due on 70 percent of revenue. B. The cost of goods sold. C. Employee compensation up to $300,000 per employee — Sandoval’s tax has no such deductions, except for gaming revenues.

The margin tax was estimated to hit private industry with $800 million a year in taxes, while Sandoval has said his tax will rake in $250 million. The lowest tax would be $400 and the highest would be $4 million.

Like the margin tax, it pays no heed to whether a business is profitable. It hits the gross receipts no matter the cost of doing business.

According to a fact sheet posted on the governor’s website, there are more than 300,000 businesses that currently pay the licensing fee. The fact sheet insists the license fee is “significantly” different from the margin tax. In fact, it will ding far more businesses than the one pushed by the teachers’ union.

For all its flaws, the margin tax was uniform. Sandoval’s is a contortion. Those 27 different tax tables arguably defy the state constitutional mandate that: “The Legislature shall provide by law for a uniform and equal rate of assessment and taxation …” How can this possibly pass constitutional muster?

According to that fact sheet, the tax rates varies from a low of 0.056 percent for mining to a high of 0.362 percent for rail transportation.

A study conducted for Nevada Policy Research Institute estimated the margin tax would kill 3,600 private sector jobs. Will the Sandoval tax kill only 1,000?

Introduction to SB252

 

 

Tax table for newspapers, magazines, books and other publications.