Goldwater Institute

Some legislators in the Arizona House seem strangely determined to block consideration of bills aimed at reforming government unions. Last year, efforts to reform government union collective bargaining stalled because of such opposition. This year, a number of other union reform bills were blocked by one state representative, Bob Robson, despite having been co-sponsored by 11 of his colleagues. HB 2330, which would require transparency in government union collective bargaining, was one of those bills.

The bill simply recognizes that when secrecy in negotiations is combined with laws forcing the government to engage in collective bargaining, government unions are free to deploy maximum leverage in negotiations. In many Arizona cities even elected city council members aren’t allowed to monitor collective bargaining negotiations, even though they are the ones accountable to the public for how the city spends their money. Elected officials and the public simply cannot meaningfully assess the outcome of the negotiations when they do not oversee them and the law keeps them blind, deaf and dumb during the negotiating process.

To protect public accountability and our pocketbooks, the public and elected officials should know precisely what is being demanded by government union officials and offered by government employers in any negotiation over employment terms and conditions. All phases of collective bargaining should be conducted transparently and all documents generated in the process should be deemed public records. After all, government employees, city managers and elected officials work for the public; and the public is entitled to know what their employees are doing on their dime.

There is no good reason to keep collective bargaining negotiations—and HB 2330—behind closed doors.

Learn more:

Arizona State Legislature: HB 2330

Goldwater Institute: Airing Out the Smoke-Filled Rooms

In a recent unanimous decision, the Arizona Court of Appeals held that school districts can't spend bond money on unapproved purposes when voters authorized that money for specific projects. This decision protects the state constitutionally-guaranteed rights of taxpayers and ensures that governments can't renege on their bond agreements with the voters.

In 2000, Cave Creek voters approved a $41.6 million bond agreement specifically to build new schools, buy school buses, and improve school grounds. Ten years later, school board officials decided to spend $13 million on projects they preferred, not what voters approved. Rather than asking voters for permission to use the money for other purposes, the district asked the state legislature for a special law to give the district legal cover.

But Arizona law requires school districts to use voter-approved bond money only on voter-approved projects, and the Arizona Constitution says that the voters, not politicians, must authorize bond measures. The Goldwater Institute sued on behalf of taxpayers, arguing that the school district can’t substitute its own preferences for a voter-approved contract, and the legislature can’t grant special permission to violate the Constitution. An Arizona trial court agreed that school districts may not use bond money in ways voters have not approved, because it “strikes a blow to the election process.”

The Court of Appeals affirmed this ruling. The Arizona Constitution gives voters a voice in how government spends their money, the Court said, and the purpose of a bond is “an essential consideration in voting for or against a bond measure.” Governments can’t induce voters to approve a bond measure for one purpose only to spend the money on another, unapproved purpose. “To hold otherwise,” declared the Court, “makes this constitutional guarantee illusory.”

Learn more:

The Arizona Republic: Ruling leaves Cave Creek’s $10 million for schools in limbo

Goldwater Institute: Friedman v. CCUSD lawsuit

Goldwater Institute: Trial court press release

Listening to the Obama Administration’s recent claims about how the sequester is going to affect the Department of Health and Human Services, you might be tempted to think that this sequester threatens your personal health. Warnings from the administration assert that the looming sequestration cuts to the agency will do everything from setting medical science back a generation, to leaving Americans at risk of consuming tainted food, to blocking access to vaccinations, cancer screenings, and HIV tests.

While the administration may call the sequester cuts draconian, the truth of the matter is that the reduction to the Department of Health and Human Services’ annual budget of 7.8 percent will take the agency back to roughly its 2009 funding level. Does anyone recall 2009 as being a year in which food-borne illness ravaged the nation (there were fewer foodborne illness outbreaks in ’09 than in ’10, ’11, or ’12), when cancer and HIV rates skyrocketed due to lack of adequate testing, and medical advancement halted in its tracks? Of course not. Because none of that happened then; and the doomsday scenario depicted by the Obama Administration will not happen now either.

The budget of the Department of Health and Human Services has more than doubled over the last decade, as the table below indicates. Even in 2001 when the department was operating on a budget of less than half of its budget today, science was advancing, food was safe to consume, and patients were being screened for various diseases.

The fear mongering related to these reductions is coming from those who have a vested interest in government subsidies, special interest groups who champion expanding government at every turn, and a president opposed to virtually any cuts to the size and scope of government. An agency budget that has more than doubled in a decade can easily absorb a cut of less than 10 percent. These cuts are not bad for your health; they are in fact healthy for a government department that has become bloated over the past several years.

Learn more:

The White House: Fact Sheet on the Effects of Sequestration

The White House: Historical Budgets of U.S. Agencies 

Center for Disease Control: Foodborn Illness Outbreaks by Year

The Montana Firearms Freedom Act came under fire before the Ninth Circuit this past Monday. Appellants Gary Marbut, the Montana Shooting Sports Association, and their attorney Quentin Rhoades advanced the unusual strategy of declaring they should lose under current Supreme Court precedent. Victory for them would consist of nothing short of overturning the decades-old case law underpinning the federal firearms regulatory regime that conflicts with the Montana Firearms Freedom Act’s declaration that firearms may be freely manufactured and sold within the state primarily from components that originate from the state. They wanted to force a loss in the Ninth Circuit so that they would be able to petition the Supreme Court for certiorari to reconsider and overturn its expansive post-New Deal Commerce Clause precedent, including Gonzales vs. Raich and the infamous Wickard vs. Filburn.

Appellants’ argument—if it can be called that—was quite a gamble; and an admirable one if only for its Western State gutsiness. But it is debatable whether the gamble was a wise one. The panel consisting of two conservative jurists and one liberal jurist—a rare composition for the Ninth Circuit—looked perplexed when Attorney Rhoades repeatedly confirmed that their courtroom was merely a way station on the road to the Supreme Court.

The Goldwater Institute and the Cato Institute took a different approach as amici curiae. In an unusual move, the Ninth Circuit allowed the amici 10 minutes of additional time to argue in support of the constitutionality of the Montana Firearms Freedom Act. We seized the opportunity.

Our argument opened with the observation that the case presented a question of first impression and one that should prevail under current Supreme Court precedent—especially in view of the Court’s emphasis in NFIB vs. Sebelius that the “letter and spirit” of the Constitution limits claims of implied power under the Commerce Clause, as confirmed by the Necessary and Proper Clause. Based on Federalist Nos. 28, 31, 33 and 51, we contended that the Ninth and Tenth Amendments were meant to work in tandem to confirm that the states may exercise their reserved powers to secure constitutional liberty against federal overreach. In other words, the Founders fully intended for the people to resist federal usurpation by passing laws such as the Montana Firearms Freedom Act to protect freedoms guaranteed by the Second and Ninth Amendments. Consequently, the “letter and spirit” of the Constitution prohibited preemption of the Montana Firearms Freedom Act to the very extent that such preemption was premised on implied power under the Commerce Clause.

We also argued that any exercise of implied power under the Commerce Clause should be subjected to heightened judicial scrutiny. Relying on Fourteenth Amendment enforcement clause precedent, such as Horne vs. Flores, we contended that the scrutiny should ask whether the claimed exercise of power is proportionate to and congruent with regulating actual interstate commerce to ensure that the exercise of power did not exceed the principal Commerce Clause power to which it was supposed to be merely incidental. In other words, the case should be allowed to proceed through discovery to assess whether the manufacturing of firearms under the Montana Firearms Freedom Act would, in fact, have a trivial or substantial effect on interstate commerce.

In response, the ever-ironically-named Department of Justice ably presented the standard defense offered by the federal government to just about any constitutional challenge—the argument that Appellants did not have standing to bring their case. Eventually, however, the DOJ urged the Court to rule on the merits and affirm the dismissal of the lawsuit, arguing that comprehensive federal firearms regulations should preempt the Montana Firearms Freedom Act for the same reasons that comprehensive federal drug regulations preempted medical marijuana laws in Raich.

Although dancing away from the question implies a nimbleness that was absent from its argument, the federal government pointedly never grappled with our key argument that Congress’ implied power under the Commerce Clause is limited by state laws that protect constitutional liberties guaranteed by the Second and Ninth Amendments. Nor did the DOJ address the need for heightened scrutiny to ensure that any claim of implied power under the Commerce Clause truly is incidental to the main power of regulating actual interstate commerce. Hopefully, the unusual majority-conservative panel will address these issues—even if the Ninth Circuit does prove to be a way station to the Supreme Court after all.

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Audio Recording of Oral Arguments