BLOG
Oklahoma Elections: For Insiders Only?
When is election day? Most people probably assume it’s the first Tuesday in November. That makes sense, since that’s the date for statewide elections, and, in even numbered years, federal elections as well. Would it surprise you to learn that there is an election scheduled in Oklahoma every single month in 2019? That is not to say that every district has an election every month. That would be a hassle - the well-engaged citizen would have to make it to his local precinct every 4 weeks to make sure his views are adequately expressed. The slipshod way local elections are scheduled is far more shocking and less predictable than that. One would be forgiven for thinking, on first glance, that Oklahoma allows government bodies to change lawmakers and raise taxes through oddly scheduled, poorly noticed elections on (almost) whichever Tuesday they want. However, in reality there are “only” 15 days per year when local elections can be scheduled. Still, this means that the party in power gets to set the date of their election. School boards and local governments can set elections in any month they choose. This could be a Tuesday in July when people are on vacation, or in December when the...
School Choice: I Have Erred
I should point out, before the reader gets into this piece, that these are my personal thoughts. Right around last Labor Day, I suddenly had a thought. I quickly made a calculation and realized that, as of the day after Labor Day, I’ve worked full-time in public policy for 25 years – a quarter of a century. While there really is nothing fundamentally more special about a 25th anniversary than a 24th or 26th one, it is a widely-recognized demarcation point. Therefore, it seems worthwhile to take time and write down reflections on my career. My work has touched on several policy areas, but I’ve been thinking a lot about public education lately. That’s the area I practically swam in when I started my career, so here are my thoughts. On the day after Labor Day in 1994 I started work for a member of the Texas House of Representatives. He was the member who always carried a voucher bill, an issue for which I was thrilled to work. By that time, my wife had homeschooled our daughter, who was seven, for several years. At first, it was because of my daughter’s early desire to learn to read and then warnings that she would be ahead, and bored, in public school. But as time went on, we...
Perfusionist (What’s That?) Licensing: Making Heart Surgery More Dangerous
Do you know what a perfusionist is? I didn’t, either, but it’s one of the many occupations that are licensed in the State of Oklahoma. However, we at the 1889 Institute are gradually looking into each licensed occupation to learn if there is justification for forcing people to ask the government’s permission to earn money doing it. So, we got curious about these perfusionists, about which we knew nothing, and why they are licensed (our report). It came as no surprise that perfusionists use their skills in medicine. Nearly every occupation involved in medicine, other than custodians, especially in Oklahoma, is licensed. Yet, the majority of states do not license perfusionists. Perfusionists do perform an important service. They monitor and operate the machines that regulate blood and air flow of patients having heart surgery. And perfusionists have accidentally killed people, sometimes due to something as simple as failing to notice a kinked hose. We have previously reviewed 11 other occupations licensed in Oklahoma, asking two simple questions. First, is it likely people will be significantly harmed if the occupation is not practiced properly? Second, is there some reason markets...
Protecting Your Rights: Interpreting Law by Its Plain Meaning
When deciding whether people have broken laws, should judges consider the intent of the legislators who wrote the law? Or simply consider the plain language of the law as written? Legal scholars have debated this question for decades. However, there is only one answer that protects We The People. The Declaration of Independence states, “Governments are instituted among Men, deriving their just powers from the consent of the governed.” This means, among other things, that only laws actually voted on by the people (or their validly elected representatives) can be legitimately enforced. Any purpose not written into the law was not voted on, and so should not be imposed. What does this have to do with interpreting laws? In the republican form of government, the citizens speak through their elected representatives. These representatives pass laws collectively, almost always through two legislative bodies (House and Senate) and an executive (President or Governor) signs off. Even in relatively small states, that’s a considerable number of people who have to agree for an idea to become a law. Odds are that there are several purposes at work to enact a single law. Judges making guesses...
Lack of Action from Oklahoma’s Occupational Licensing Advisory Commission
Apparently, if you’re a legislator in Oklahoma and want to look like you’re doing something about an issue while not actually doing anything at all, you pass a bill to create a commission to study the issue. At least, that’s how the Oklahoma Occupational Licensing Advisory Commission (LAC) has operated so far. According to a study I did while at the Goldwater Institute, Oklahoma ranked as the 24th most-licensed state. A study by the Institute for Justice ranked Oklahoma 35th in how broadly and onerous its licensing laws are. But these, and similar studies, are really just counts of how many occupations states license, so they leave out a lot of nuance. The Institute for Justice’s report does add some nuance, reporting that by its standard of measure, Oklahoma ranks 18th in how burdensome are its licensing laws. That is an important piece of information. On the one hand, according to the Institute for Justice, Oklahoma’s licensing laws cover fewer occupations than in many states, but on the other hand, those laws are so egregious that Oklahoma still ranks worse than 32 states in how burdensome its licensing laws are. And that is exactly what six different analysts at the 1889...
Legislating through Litigation
Oklahoma’s Attorney General and trial courts appear to now be in the business of taxing industries and appropriating funds to state agencies. These are powers that the Oklahoma Constitution explicitly grants to the legislature. They are certainly not given to the Attorney General or the courts. But in the name of mitigating a “public nuisance,” these legislative powers have effectively been misappropriated. The $572 million judgment recently handed down in Oklahoma’s opioid litigation looks an awful lot like a piece of legislation. It purports to tackle a broad societal problem by taxing a company alleged to have contributed to it and using the money to fund government agencies and programs aimed at ameliorating the problem. The Court and Attorney General justified this approach by claiming an “abatement plan” was needed to counter the so-called public nuisance of prescription drug abuse. Besides stretching the public nuisance theory far beyond its historical application, the ruling closely resembles the type of public policy that is normally (and properly) implemented through legislation. For example, the Court's Order: Creates and funds programs (well in excess of $100...
Our Black-Robed Legislators on the Oklahoma Supreme Court
When the nine lawyers on the Oklahoma Supreme Court meet to hear a case, no legislation is safe. That's because the justices on the Supreme Court regularly act as though they are lawmakers instead of judges. My most recent paper, Legislators in Black Robes: Unelected Lawmaking by the Oklahoma Supreme Court, explains how the justices achieve this lawmaking. When the justices decide their mission is to take out a law, they weaponize otherwise mundane provisions of the state constitution (the single subject rule and the ban on special laws, for example) to strike the law down. If that tool is too blunt of an instrument for their purpose, they declare a law “ambiguous” and go about re-writing it from the bench. They justify the re-writing as an attempt to conjure the “intent” of the statute, regardless of what the actual words on the page say. If the law the justices want to strike down isn’t ripe for review, no problem. The Court has invented a concept called “public interest standing,” which allows the justices to hear virtually any case they desire so long as it concerns a “matter of great importance.” These are not the actions of a properly functioning judicial branch. These are...
The Horrifying Idea that Health Care Is a Right
It’s not uncommon to hear people declare health care a fundamental human right. At least two candidates for U.S. President, Sanders and Warren, would create the obligation for us all to provide health care for everyone through “Medicare for all.” The most common response is to ask how we would pay the tremendous price tag of such a plan. But, while that is a very good question, there is a fundamental moral issue at stake. Every good and service must be produced by someone. Even with automated production, in some way a human hand is integral to creating all we consume. That most definitely includes health care. Therefore, to claim a fundamental human right to anything that must be produced by someone else, especially if it is to be had for free, is to claim a right to another human’s labor. There is a word for this. It’s “slavery.” Scoffing at this fact is easy. After all, doctors in nations that provide free health care to all are paid for their services. They hardly look like slaves. But a gilded cage does not change the moral calculus. Nor does the fact that no one outside of convicted criminals in these nations is in chains. Mutual enslavement disperses the terrible costs of...
Massage Therapy Licensing: Violating the Pursuit of Happiness
In a way, America at least partly owes its independence to the conviction that granting exclusive market privileges is an illegitimate function of government. In a free country, no-one has an exclusive right to a market over anyone else. Yet, two and a half centuries after the American Revolution, the old-fashioned kind of monopoly, wherein government grants exclusive privileges, is experiencing something of a revival. In Oklahoma, legally bestowed market advantages are commonplace, and take many forms such as Tax Increment Finance Districts, various special tax credits unrelated to core government functions, and occupational licensing. Today, people use the word “monopoly” to refer to a business that has achieved total domination in a market as the result of laissez-faire processes, but not so long ago, a “monopoly” was a business that was bestowed with artificial market-domination and insulated from competition by a monarch. That’s the kind of monopoly conferred on the East India Company for most of its history. It is perhaps best known for its legal monopoly on tea, which backfired with the Tea Act of 1773 and precipitated the Boston Tea Party, an early skirmish in the...
Why Oklahoma’s Method for Selecting Judges Is a Bad Idea
The state of Oklahoma selects supreme court justices using a system known as the Missouri Plan, which is a form of merit selection. Advocates paint a rosy picture of the plan, claiming that it is a more sophisticated system than the federal model or the election model and that it strikes the perfect balance between the other two systems. Unfortunately, that is simply not the case. Here is how the plan works: the Judicial Nominating Commission (JNC), a board of individuals who review candidates for vacancies on the supreme court, selects three candidates to present to the governor. The governor must select one of these candidates. If he does not, after 60 days, the Chief Justice selects one of the candidates to fill the vacancy. Once on the court, justices face an uncontested “retention election” every six years; however, not one justice has been voted off the court in the half century that this system has been in place. On its face this system might seem like a good idea, but a closer look reveals some serious problems. First, the makeup of the JNC is problematic. The JNC is composed of fifteen commissioners, six of whom are selected by the Oklahoma Bar Association (OBA) from its...
Higher Home Prices, Brought to You by Oklahoma’s Occupational Licensing Machine
In order to get a mortgage loan, you need title insurance. This protects both the buyer and the lender against clouded title - claims by people other than the seller that they own part or all of the property. Typically title insurers do some level of research on the ownership history of the property. This eliminates some of their risk - any viable claim against the property will be based on pre-existing ownership rights. In many states insurers can determine how much risk is efficient - that is, when the extra research to further reduce their risk costs them more than the insurance payouts they are likely to make. In Oklahoma, title insurers are not allowed to make any such risk determination. They are required by law to have a licensed abstractor gather all the recorded documents relevant to the parcel’s ownership history, back to when it was owned by a government entity. Then they are required by law to have a licensed attorney examine the documents and write an opinion of title. Five regulations in particular inflate the cost of buying and selling real estate with no benefit to consumers. You are paying the price for these regulations, whether you own property or not:...
Let’s Stop Allowing Special Interests to Pull Up the Ladder of Opportunity
"People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices." -Adam Smith, The Wealth of Nations A legislator I know once told me that he heard a lobbyist for a trade group describe his job as helping those already on top of the building pull up the ladder so that no one else would be able to climb to the top. What he meant was that he helped this trade association get the legislature to pass laws that made it ever more difficult to become licensed in the field, thus limiting competition for his paying clients. For the incumbents in the field, this seems like an easy trade: the fee to hire the lobbyist is relatively small compared to the windfall produced by using the law to eliminate future competition. To the lobbyist’s credit, at least he was forthright about what he was being paid to do (rather than pretending that he was out to protect “public health and safety”). But pause for a moment and contemplate what this portends for society at large. The practical effect of this mentality is that many people are legally prohibited—or at least substantially...
Why Does Oklahoma License Polygraph Examiners?
In Oklahoma, a license is required to work as a polygraph examiner (a professional who applies lie-detector tests), and it is not at all obvious why. Generally, an occupation is licensed if it is obviously in the public’s interest to prevent potential bad actors from practicing. So, for example, it is argued that doctors must be licensed because, otherwise, some idiot might open a hospital in his garage and really hurt someone. And it is argued that accountants must be licensed because, otherwise, some college-dropout might offer to do accounting for an unsuspecting mom-and-pop shop, tell them their numbers look great (when, in fact, they don’t), and cause them to go bankrupt. In short, occupational licensing is supposed to either (1) prevent real, tangible harm, or (2) assure customers that their service-provider is trustworthy. However, interestingly, licensing polygraph examiners does not accomplish either of those goals because polygraph examiners do not do anything remotely dangerous (they don’t use chemicals, break the skin, or subject anyone to discomfort or uncleanliness), nor is their practice very complicated (a short YouTube video can explain how to apply a...
The Real Reason Health Care Prices Keep Rising
Much has been made of the healthcare crisis of late, but very little of it addresses two of the biggest financial problems with the system: the third party payer problem and the reality that health insurance bears no resemblance to true insurance. Insurance is a pooling of risk. The odds are that just over one in every 250 people will contract cancer in the next year. Cancer is an incredibly expensive disease to treat. So if 250 people got together and put aside enough savings to cover one case of cancer between them, they have effectively pooled their risk, and, on average, they should have enough to cover the statistical cancer they as a group are likely to incur. This risk pooling works better in larger numbers. A statistician would be unsurprised if one group of 250 had four cases of cancer while three others had none. But a single group of 10,000 people is much more likely to remain near the nationwide average, and if each of the 10,000 people pays just a little extra, they should be able to cover an extra case or two. Because the risk of cancer is so remote, risk-pooling works. The current health “insurance” isn’t insuring against risk - a remote possibility that something...
Medicaid Expansion: A Raw Deal
For the sake of most Oklahomans, our state legislature should continue to hold out against the unrelenting pressure of monied interests and refuse to expand the state’s Medicaid program under Obamacare. Why? It’s simple, really, if someone is robbing my house, moving from room to room and taking my valuables, I’m not going to point out a room they missed and invite them to steal even more. Expanding Medicaid will just allow the health industry to take even more from us than they already do. That’s the fundamental, underlying message of my most recent paper, Medicaid Expansion in Colorado: An Exercise in Futility. In addition to providing some context about just how rich the health industry is in this country, I use plain language to restate the conclusions of an official study from a Colorado state agency to point out that Medicaid expansion advocates (mostly from the health care industry) are selling us a false bill of goods. The false claim is that if we expand Medicaid, currently uninsured patients who do not pay their bills will have their bills paid by Medicaid. This will allow hospitals to lower prices for the rest of us since prices are high at least partly to make up...
Penmanship Fit for a King, Words Fit for a Free People
We all know that Thomas Jefferson authored the Declaration of Independence, but who wrote the Declaration? Who took pen to paper—actually, quill to parchment—and inscribed the words on the document displayed at the National Archives in Washington, D.C.? The name Timothy Matlack has largely been lost to history, but in addition to having exceptional penmanship, Matlack actually played a significant role in the events we celebrate on the Fourth of July. More importantly, the words Matlack transcribed set into motion a conception of government completely new in world history. While Matlack’s elegant calligraphy appears fit for a king, Jefferson’s elegant prose—directed at a king—had far more lasting consequences. So what of these consequential words? We’ve all read them at some point, or perhaps been required to memorize them in school. Was the Declaration just a flowery way of saying “no taxation without representation!” Hardly. As Abraham Lincoln later consistently argued, the Declaration of Independence represented “the Father of all moral principle” among Americans and the animating spirit of our laws. Accordingly, the Declaration can rightly be called our organic law. To put it...