Conservative Values - Practical Solutions
EDUCATION: I am a strong advocate for education in the Legislature. The Utah Constitution gives the State School Board authority to supervise and control public education. The State Board sets education policy and standards, while local school boards are free to implement policy and determine curriculum in consultation with educators, parents and community councils. The more local control the better. The Legislature should work with and follow the lead of the State School Board to avoid over-regulation of education. As a state, we should resist federal efforts to control our education policy. For example, the federal government has no business dictating school testing, school lunch menus, or directing cross-gender use of bathrooms and locker-rooms.
I will work for increased funding through economic development and alternative revenue sources. We must find additional funding to attract and retain professional teachers. I support efforts to reduce class size, provide teacher assistants, and implement innovations that will continue to enhance the quality of education. I oppose school grading as an inaccurate and incomplete assessment of school quality; it is based on shaming schools into improvement while providing no additional resources to make meaningful improvement. I will assist educators to implement performance evaluations that are fair and accurate. Finally, I will listen and respond to educators on issues important to them; they are the experts and the professionals and deserve our respect.
ECONOMIC DEVELOPMENT: I favor free markets, protection of property rights, and free enterprise. Economic freedom goes hand-in-hand with political freedom. I oppose government regulations that inhibit free enterprise and economic growth, including federal regulations that threaten water rights, power plants, close public lands to mining and resource development, and burden our agriculture industry.
HEALTHCARE: Access to quality health care is crucial for all our citizens. However, the federal Affordable Care Act has not achieved its stated goals, but has actually increased costs and restricted access. I will work for state solutions that are fair and financially sustainable. I support state efforts to operate our own health insurance exchange and to establish our own Medicaid eligibility standards. Moreover, I support religious entities and others opposed to federally-mandated insurance coverage for abortions and contraception.
Guest opinion: Thoughts on democracy and republic Utah Policy - Representative Merrill Nelson (October 14, 2020)
Sen. Mike Lee is, of course, technically correct that the United States is a Republic rather than a Democracy. The Constitution itself "guarantee[s] to every State in this Union a Republican Form of Government." (Art. IV, Sec. 4) We solemnly "pledge allegiance to the flag of the United States of America, and to the Republic for which it stands."
Our Founders never used "Democracy" and "Republic" interchangeably-they understood the difference and warned against the extremes of democracy.
In Federalist No. 10, Madison warned that a democracy, in which citizens assemble and administer the government in person, produces "turbulence and contention," while a republic provides a scheme of representation that tempers and refines the emotional and fleeting demands of public clamor and produces results "more consonant to the public good than if pronounced by the people themselves." (See also Federalist No. 14)
Jefferson observed that "democracy is nothing more than mob rule, where 51 percent of the people may take away the rights of the other 49."
So, why do some refer to our form of government as a "democracy"? Possibly because the dictionary defines "democracy" as "government by the people," which accurately describes how "[w]e the people" try to govern ourselves (remember Lincoln's Gettysburg Address).
To reconcile the two terms, we might view "democracy" as a more general description and "republic" as a more specific, refined, or higher form of democracy. We the people govern ourselves through elected representatives. Our Constitution reinforced this representative or "Republican" form of government by providing for the selection of senators by the state legislature and the selection of the President through the Electoral College.
The purpose was to prevent the rise of powerful and persuasive demagogues who could play on prejudices, false claims, and promises to sway the populace and obtain public office. Our Republic was weakened by the 17th Amendment, which altered the selection of senators, and would be further harmed by abolishing the Electoral College, as some demand today.
I do have one significant correction, though, for those who describe America, from the perspective of the federal government, as a mere "Republic." More accurately, we are, from the perspective of the States, a "Compound Republic," as described by Madison in Federalist No. 51: "In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people." Federalism, the division of powers between national and state governments, is thus essential to protection of individual rights.
While we govern ourselves through elected representatives, the people retain ultimate control of the government and laws through the power of their vote in the election process. That is the one right we must zealously protect and never minimize nor neglect. Our informed vote is essential to our Republic.
MEDICAL MARIJUANA:
Commentary: Anderson is Wrong About Medical Marijuana Compromise
Op-ed to Salt Lake Tribune – Representative Merrill Nelson (December 22, 2018)
In a recent commentary, attorney Rocky Anderson accused the Legislature of ignoring the will of the people in passing the compromise legislation on medical marijuana. In particular, he accused me of “hypocrisy” and “disdain for the people” by acknowledging that all government power originates with the people, and then voting against what he perceives as the “will of the people.” However, these claims are untrue and manifest a serious misunderstanding of the law.
Under the Utah Constitution, “[a]ll political power is inherent in the people” (Art. I, Sec. 2), meaning that the source of all government power is the people. However, in our Republican form of government, the people have delegated most of that power to the different branches of government. The purpose of that separation of powers is to provide “checks and balances” on government power to prevent tyranny and protect liberty.
Legislative power, the power to pass laws, is vested in both the Utah Legislature, as elected by the people, and in the people themselves. The Legislature enacts law through legislation; the people enact law through the initiative process--placing a proposed law on the ballot for majority vote of the people. (Art. VI, Sec. 1) As explained by the Utah Supreme Court, “Nothing in the text or structure of article VI suggests any differences in the power vested simultaneously in the ‘Legislature’ and ‘the people.’ The initiative power of the people is thus parallel and coextensive with the power of the legislature.” (Carter v. Lehi City, 2012 UT 2.)
Accordingly, the legislative powers of the Legislature and the people have equal legal status; neither is superior to the other—neither “trumps” the other, and both are subject to checks and balances. A law passed by the Legislature is subject to veto, judicial review, referendum approval by the people, and amendment or repeal by a future legislature. Likewise, an initiative law approved by the people is neither final nor unreviewable, but is subject to checks and balances. Laws passed by the people, just like legislative provisions, are subject to judicial review and to amendment or repeal by subsequent legislation or initiative. For example, it would be absurd to suppose that an initiative harmful to the public, such as a law removing all speed limits, or a law permitting child pornography, would be beyond judicial or legislative review just because it was passed by initiative of the people. In our dual legislative system, laws enacted by both the Legislature and the people are subject to revision by the other.
Contrary to attorney Anderson’s claims, the Legislature did not “disregard the will of the people” in passing the compromise medical marijuana law. Many of our people, including government and community leaders, healthcare providers, law enforcement, and even leading initiative organizers, recognized that the initiative was worded too broadly and lacked sufficient safeguards to prevent medical use of marijuana from crossing into recreational use. The initiative law was fraught with potential for abuse, thereby endangering the health and safety of the public—particularly our youth. The initiative represented the desire of the people for medical marijuana, and the people approved it, despite its shortcomings, because they had no alternative for a better plan—initiatives are presented on an all-or-nothing basis. By contrast, the Legislature had the choice to approve the compromise bill, providing medical marijuana with limits and safeguards, or leave the initiative in place. Accordingly, the Legislature did not ignore the “will of the people.” Both the initiative and the subsequent compromise bill manifest the “will of the people”--first by direct vote of the people, and second by vote of their elected representatives.
Attorney Anderson also argued that the compromise medical marijuana law passed by the Legislature violates federal law by establishing state controls over the production and distribution of medical marijuana. However, the federal Controlled Substances Act of 1970 prohibits any use of marijuana; therefore, the marijuana initiative as passed by the people also violated federal law. The Legislature was thus faced with the choice of which law is most likely to survive federal challenge: the uncontrolled production, trafficking, and recreational use of marijuana permitted by the initiative, or the state-monitored compromise legislation that strictly limits marijuana to its intended medical use. The U.S. Justice Department continues to prosecute production and trafficking of recreational marijuana, while permitting an increasing majority of states to authorize medical use. Accordingly, the Legislature concluded that, while waiting for a silent Congress to act, the compromise medical marijuana bill is more likely to survive federal challenge than the initiative.
In short, the Legislature has the highest regard and respect for the power of the people to pass laws through the initiative process, but those laws are subject to review and revision to the same extent as laws passed by the Legislature. Our legislative intent was not to supplant, but to improve, the medical marijuana law to render it more consistent with public policy of health and safety, as well as more defensible under federal law.
States Must Take Action to Save Federal Government
Rep. Merrill Nelson (Op-ed in Deseret News, Jan. 2019)
“Our federal government is broken.” A phrase once considered trite or cliché is now accepted as true. The current government shutdown is only the latest confirmation of that truth. Even if the current impasse over a border wall were resolved, the structural and operational problems with the federal government would persist and result in further shutdowns. This past week, Governor Gary Herbert, Senator Mike Lee, and political columnists Pignanelli and Webb all offered solutions to the problem, but all fall short of the required action.
Governor Herbert accurately observed that “the problem is deeper than a disagreement over immigration or health care or the debt ceiling.” The long-term solution is “the return to a robust federalism that leaves more policymaking power to the states.” He persuasively argued that state governments are more efficient, effective, and accountable. (Politico, Jan. 17, 2019)
Senator Lee admitted that “Congress is failing the American people. . . . [W]e are all just sitting around waiting for some game-changing event to set things in motion.” His solution for the shutdown is to “do the hard work of voting” to get both sides on record of where they stand. (Deseret News, Jan. 20, 2019) He offers no long-term solution for federal government dysfunction.
Pignanelli and Webb agree that “[o]ur national government is in chaos,” acknowledging that: “Congress is in gridlock”; “both parties are contributing to massive national debt”; “the federal government is a disaster”; and because of the Senate filibuster rule, Congress “can’t govern.” Their proposed solutions: more reliance on social media; “[e]liminate the filibuster”; “impose term limits”; and “restore balanced federalism” by “devolv[ing] much of what the federal government does to the states.” (Deseret News, Jan. 20, 2019)
All of these observations are correct, but none solves the problem of a broken, bloated, dysfunctional, and debt-ridden federal government. Despite all our wishful thinking and waiting and hopeful demands, the federal government will never fix itself, and it will never voluntarily relinquish power back to the states. As Hamilton observed in Federalist 28, the only solution for usurpation or misuse of government power is the constitutional check of a “rival power.” “State governments will . . . afford complete security against invasions of the public liberty by the national authority. . . . The legislatures . . . can discover the danger at a distance; and possessing all the organs of civil power . . . , they can at once adopt a regular plan of opposition . . . . They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.” Madison agreed that the ultimate power to control excesses or dysfunction of the federal government rests with the states. (Federalist 51)
Our Founders foresaw the risk of an oversized and over-powerful federal government that would be unwilling or unable to restrain or correct itself. They provided a remedy in Article V of the Constitution for the states to call a convention to “communicate with each other” and propose possible amendments to check federal power, correct federal dysfunction, and restore proper powers to the states. Such amendments could include: 1) budgetary constraints and procedures to ensure continued operation of the government under a balanced budget; 2) elimination of the Senate filibuster and other rules that produce congressional gridlock; 3) return of certain functions to the states, such as education and healthcare; 4) limitations on federal jurisdiction and regulation; 5) state authority, two-thirds concurring, to override unjust or unworkable federal laws; 6) limitation of terms for federal officials and judges; or 7) more equitable and efficient taxation; and so forth. Any amendment approved in a convention of states would still have to be ratified by three-fourths of the states before becoming law, as for amendments proposed by Congress. With this power available to the states, observed Hamilton in Federalist 85, “We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.”
The states created the federal government, with clearly defined powers and functions. Our compound republic has worked relatively well, with fits and starts, for over 230 years, but the federal government is now in dire need of repair and retrenchment. It is time for the states to come together to fulfill their constitutional function and duty to restore and steady the federal ship of state. The action plan is clear: The Utah Legislature in the coming session must adopt a resolution calling for a convention of states. Utah would become the thirteenth of the required thirty-four states to call for such a convention. We are not talking about a “constitutional convention” to replace the Constitution—we are calling for a convention of states to rescue the federal government. Nor is this a partisan or geographical concern—all Americans in every state have an interest in a strong, viable federal government functioning within its prescribed powers.
Next, we need the leadership of Governor Herbert and our federal delegation, as well as the support of the people of Utah, to encourage other states to join this call for a convention of states. In fact, Governor Herbert, with his positions of leadership among the nation’s governors, may be considered to lead our Utah delegation in a convention of states. The time to act is now. We must not neglect nor fear the constitutional remedy provided by our Founders for the very problem we now face, and which they foresaw. If we fail to act and use this remedy, our Founders—and our posterity—will hold us accountable.
ARTICLE V CONVENTION OF STATES:
House of Members Participate in First Convention of States Simulation
Working to protect liberties and restore checks and balances of government
SALT LAKE CITY – Representatives from every state across the country met together in Colonial Williamsburg, Virginia to hold a Convention of States simulation. Reps. Kim Coleman, Ken Ivory and Merrill Nelson represented Utah.
People, on both sides of the political aisle, are beginning to realize that the balance of power between state and federal government has become nearly nonexistent. Over time, the rights of the states have been so seriously eroded that states are today, for all intents and purposes, wholly subservient subdivisions of the federal government.
The framers ensured tools were available that would allow the states to take action to preserve or restore sovereignty. One of the solutions is included in Article V, which says if 2/3 of the states petition for a convention to propose amendments on the same subject, Congress must call a convention. The purpose of a convention in this context would be to amend the constitution in such a way as to correct the federal overreach that has brought us to this point. This simulation was meant to show how the process could potentially operate.
Rep. Ivory was elected to serve as president of the Convention.
“Utah can be proud of the work that was done by this nationwide assembly of state representatives to signal the path forward in restoring vitality to our ingenious governing system that requires constitutional balance between the states and the national government,” said Rep. Ivory. “Representatives closest to the people can exercise their constitutional power in a manner that will more fully secure the blessings of liberty not only for us but for generations to come."
During the Convention, many amendments were proposed and six passed, all with the intent of checking the power of the federal government and returning states to their proper role within our republic.
Rep. Nelson drafted and sponsored the proposed amendment that authorizes states to override a federal law.
“The federal government has expanded its authority far beyond its delegated powers in the Constitution,” said Rep. Nelson. “Our Founders provided a remedy in Article V to preserve our ‘government by the people’ and now is the time to use that remedy.”
The ratified amendments consisted of:
Requiring a super majority vote of Congress to approve any increase in the national debt.
Requiring a super majority [deleted] vote of Congress to increase federal taxes and a repeal the 16th Amendment.
Limiting federal overreach by returning the Commerce Clause to its original meaning.
Limiting the power of federal regulations by providing a simple congressional override.
Giving the states the power to overrule any federal law, regulation or executive order by a 3/5 vote.
Imposing term limits on Congress.
Notes:
Videos of the Convention:
Full video of the deliberations: https://www.youtube.com/watch?v=vqqOVV4oRqI
Opening remarks: https://www.youtube.com/watch?v=6cPM2vwtd5E
Closing remarks: https://www.youtube.com/watch?v=SW7Fd4EiI7w
Additional resources about the Convention of States can be found at conventionofstates.com
JUDICIAL SELECTION CRITERIA - ENFORCEMENT OF LEGISLATIVE INTENT:
Utah Constitution: Art. VIII, Section 8(4) mandates: “Selection of judges shall be based solely upon considerations of fitness for office . . . .”
Utah Code: Section 78A-10-103(1)-(2) directs the Commission on Criminal and Juvenile Justice (CCJJ) to establish “evaluation criteria” to determine “which of the applicants are the most qualified.” Subsection (2) directs that judicial nominating commissions “shall determine . . . which of the applicants best possess the ability, temperament, training, and experience that qualifies them for the office.” Subsection (3) reiterates that nominating commissions “shall certify to the governor a list of the . . . most qualified applicants.” Subsection (4) requires nominating commissions to “ensure that the list of applicants submitted to the governor meet the qualifications required by law.” Section 78A-10-105(4) specifically applies the constitutional mandate to all entities involved in the judicial selection process: “The judicial nominating commission, the governor, the chief justice, and the Senate shall nominate and select judges based solely upon consideration of their fitness for office . . . .”
Administrative Rule: CCJJ prescribes by rule the following evaluation criteria: (1) integrity; (2) legal knowledge and ability; (3) professional experience; (4) judicial temperament; (5) work ethic; (6) financial responsibility; (7) public service; (8) ability to perform the work of a judge; and (9) impartiality.
Judicial Application Form: The application form delivered to nominating commissions and applicants includes the foregoing list of evaluation criteria, but then includes the following “Additional Considerations”: “Diversity on the Bench. When deciding among applicants whose qualifications appear in all other respects to be equal, it is relevant to consider the background and experience of the applicants in relation to the current composition of the bench for which the appointment is being made.”
This diversity provision was added by the Judicial Council under the belief that the evaluation criteria passed by the Legislature “contain some bias” in that the criteria “may overlook qualified women and minorities.” Code of Judicial Administration, Manual of Procedures for Judicial Nominating Commissions, Appendix A (Repealed July 1, 2010). The Judicial Council added: “The idea is to promote a judiciary of sufficient diversity that it can most effectively serve the needs of the community.” Id.
Op-ed to Salt Lake Tribune - Representative Merrill Nelson (November 7, 2017)
(The Salt Lake Tribune refused to print this rebuttal and correction to the Gehrke article.)
In a recent column, Robert Gehrke lauded the Governor’s judicial appointments and highlighted in particular the racial and gender diversity of those appointments. I have no problem with those appointments or with the increasing diversity of the Utah bench. I take at face value the Governor’s assurance that he is “committed to appointing the best person for the job in every instance.” That’s all any of us can ask; we then rely on the Governor’s integrity and judgment to carry out that commitment.
I do take issue with Gehrke’s misrepresentation of my position regarding judicial diversity. House Bill 93, which I sponsored in the last legislative session, and which passed the House with a large majority, was not, as he claims, an “attack on diversity on the bench.” Rather, that bill was intended to prevent racial and gender discrimination in judicial appointments. The Equal Protection Clause of our Constitution prohibits race and gender discrimination. Does Mr. Gehrke agree with that provision? Always or only sometimes? Utah law, by constitution and statute, requires that judges be selected solely on the basis of fitness and qualification for office. Does Mr. Gehrke believe in the rule of law? Always or only sometimes? ("The Supreme Court has permitted limited reverse discrimination in college admissions, but not in the merit-selection of judges.")
The purpose of HB 93 was to override an administrative rule, adopted without legislative approval, which required judicial nominating commissions to consider race and gender diversity in nominating judicial candidates. That rule was an unauthorized deviation from our constitution and statutes. If race and gender consideration is wrong, it is always wrong. If we leave it to a government officer to decide whether and when it is okay to discriminate on the basis of race and gender, then we do injury not only to persons discriminated against, but to the rule of law. In the Senate committee, I amended the bill to include “diversity on the bench” as a consideration in judicial nominations. My argument was if, as a matter of public policy, we want to consider race and gender in judicial appointments, then we should put it into our statute, and not leave it to the unauthorized and arbitrary discretion of a government officer. The committee chose to leave “diversity on the bench” out of the statute.
I emphasize that I am not opposed to “judicial diversity” or to Utah’s judicial nomination process. My bill would have done no harm to either. I would have no problem if the entire judiciary were comprised of women and racial minorities—as long as they are the most qualified and, in the words of the Governor, “the best person for the job in every instance.” Selecting judges on the basis of race and gender, even if that is only one consideration of many, is not only unlawful, but would weaken our judiciary and be unfair to the candidates, who have no control over their race and gender. My intent with the bill was simply to prohibit unlawful discrimination and protect the rule of law. Given the increasing social strife in our country and worldwide, it is time we stopped classifying each other in terms of race and gender and, instead, treat each other as absolute equals under the law—judged solely on the basis of merit.
Legislative Intent: It is the intent of the Legislature that constitutional and statutory standards for judicial nominations be enforced as written, with no “additional considerations” included on the application form.
PRESERVING A MERIT-BASED JUDICIARY
Representative Merrill Nelson (February 21, 2017)
Last week, the Utah House of Representatives approved HB93, which confirms legislative control of the judicial selection process and removes race and gender from the selection criteria. The purpose of the bill is to maintain a judicial selection process based solely on merit, as required by the Utah Constitution. HB93 is not an anti-diversity bill, but rather an anti-discrimination bill.
In 1984, Utah changed from a system of selecting judges through contested public elections to the current system of merit-based selection. In supporting the change, Chief Justice Gordon Hall explained, “The curse of the elective system is that it turns every judge into a politician,” requiring judges to engage in political activities “that prejudice their judicial independence.” (Utah Bar Journal, Vol. 16, No. 7, p. 6.) Then-Justice Dallin Oaks observed that the new system would resolve controversies over separation of powers in the selection process and protect “the interest of the people of this state in qualified applicants.” (Id. p. 7.)
The Utah Constitution, Art. VIII, Sec. 8, requires the Legislature to establish a judicial nomination process, authorizes the Governor to select judges from a list of nominees, and requires the State Senate to approve the judicial selections. Each step of the process is guided by this mandate: “Selection of judges shall be based solely upon consideration of fitness for office without regard to any partisan political consideration.”
By statute, the Legislature established a judicial nominating procedure that requires nominating commissions to select only the “most qualified” candidates as determined by their “ability, temperament, training, and experience.” (78A-10-103(2).) Nominating commissions, the Governor, and the Senate are required to “select judges based solely upon consideration of their fitness for office.” (78A-10-103(3) and -105(4).)
From 1984 to 2010, the judicial nominating process was administered by the Administrative Office of the Courts under the direction of the Judicial Council, which is headed by the Chief Justice of the Utah Supreme Court. Originally, judicial applicants were evaluated on the basis of several criteria listed on the application: “integrity, impartiality, industry, legal knowledge and ability, judicial temperament, financial responsibility, health, and public service.” However, in 2002, the Judicial Council added “Diversity on the Bench” as a consideration in judicial applications. The Council commented that the “evaluation criteria contain some bias” that “may overlook qualified women and minorities.” (Code of Judicial Admin., Manual of Procedures for Judicial Nominating Commissions, App. A, repealed 2010.) The Council directed judicial nominating commissions to consider “diversity on the bench” when evaluating applicants “whose qualifications appear in all other respects to be equal.” The Commission on Criminal and Juvenile Justice (CCJJ) carried over this diversity requirement when it assumed administration of the judicial application process in 2010.
HB93 seeks to overturn this unauthorized policy and practice. This bill confirms the exclusive role of the Legislature in establishing judicial selection criteria and reaffirms the constitutional and statutory standards that selection must be based solely on merit—on fitness and qualifications for the office—nothing else.
The Utah Bar Association opposed the bill because of concern that removing CCJJ authority over selection criteria, including diversity, “impairs [the] judicial selection process.” It is troubling that this association of lawyers, as sworn guardians of our Constitution and laws, would assume a position directly contrary to their plain wording and intent. HB93 does nothing to diminish the quality of our judiciary. As Chief Justice Durrant observed in his 2017 State of the Judiciary speech, the excellence of Utah’s judiciary is based on “a process for the selection of judges that is focused on merit, a process that yields the best and the brightest from among the legal profession to serve as our judges.” (Page 6.) The notion that it’s okay to consider race and gender when all other qualifications “appear . . . equal” is false. First, all other qualifications are never truly equal, and nominating commissions make no such formal finding; rather, the equality provision merely provides a pretext for discrimination. Second, case law does not recognize diversity as a legal justification for discrimination. Judging people by their race and gender is never okay.
Race and gender discrimination demeans the judicial selection process for all concerned. For those excluded, race and gender pose immutable standards that can never be achieved—regardless of experience, effort, or ability. For those benefitted, selection carries a stigma that they were not good enough to qualify on their merits—without a finger on the scale. Race and gender preferences in fact perpetuate notions of inferiority and foster public hostility. In other public employment, it is the policy of this state to promote equal opportunity and to prohibit any discrimination based on race or gender. Why would we deviate from that policy in selection of our judges—those who stand as guardians of the rule of law and justice for all--regardless of race or gender? Our dream of social peace and justice will never be achieved while we continue to classify ourselves by race and gender.
Some argue that our judiciary cannot be effective unless it “reflects” the racial and gender composition of our society. However, under our Constitution, the judiciary is not intended to be a representative branch of government—that is the role of the Legislature. The judiciary is intended to interpret and apply the law—independently, impartially, and faithfully—without regard to public or political influence. No lawyer or litigant has a right to a judge of any particular race or gender. Others argue that we need a “diversity” of life experience on the bench, but every judge brings to the job a unique life experience. Diversity on the bench occurs naturally, over time, without artificial compulsion. Other states, like California, long ago barred race and gender preferences in judicial selection, and judicial diversity has not diminished. As a Legislature, our duty is to ensure a judiciary that is qualified and true to the law, regardless of race and gender. HB93 fulfills that duty.
PROPOSED REPEAL OF U.S. SENATE FILIBUSTER RULE
Op-ed to Deseret News - Representative Merrill Nelson (October 29, 2015)
Senator Orrin Hatch recently published a Senate speech extolling the perceived virtues of the Senate filibuster rule. By this rule, a supermajority of sixty senators is required to pass legislation or conduct other business. Stated otherwise, a minority of forty-one senators is empowered to block legislation indefinitely. Wikipedia defines “filibuster” as a “dilatory or obstructive tactic used to prevent a measure from coming to a vote.” Senator Hatch claims that “allow[ing] a minority of Senators to delay or block legislation is a good thing” because delay helps “refin[e] the popular will” and preserve the Senate’s “deliberative character.” While I have the utmost respect for Senator Hatch and honor his many years of devoted service to the State of Utah, I cannot agree that the filibuster rule is good for American government.
First, the Senate filibuster rule is not authorized or even contemplated by our Constitution. Article I, Section 5 states that “a Majority of [senators] shall constitute a Quorum to do Business,” not sixty. Article I, Section 3 gives a vote to the Vice President as President of the Senate when senators are “equally divided,” which can never happen with a sixty-vote minimum. If our Founders had intended to require a supermajority to pass legislation they would have expressly stated so, as they did for veto-overrides and impeachments.
Second, the Senate filibuster rule significantly alters the balance of separated powers under the Constitution. By hobbling itself with the filibuster rule, the Senate effectively prevents congressional action on matters of national importance, leaving the President unchecked to govern the nation by executive order and administrative rule. The most obvious example of congressional inaction is the federal budget. The House passes budget bills to limit or restructure federal spending, but Senate inaction results in a concurrent resolution that continues spending at current or higher levels advocated by the President and his unelected agency directors. The result is an $18 trillion national debt—and growing.
Other examples of administrative action unchecked by congress include federal regulation of immigration, education, environmental standards, government-funded healthcare, and lack of criminal law enforcement, such as for marijuana use. Senator Hatch argues that the Senate filibuster prevented passage of a cap-and-trade energy tax and public-option health insurance—but we now have essentially the same results by executive order and administrative rule. The President and administrative agencies simply ignore Congress and run the country as they choose. They are free to enforce, ignore, expand, or restrict enforcement of federal law because they know the Senate is neutralized by the filibuster rule. No wonder Congress’ approval rating hovers near the single digits.
Third, the filibuster rule weakens federalism by allowing the President and federal agencies to force their federal mandates on the State governments. The States created the federal government to perform limited national functions. The Founders intended that the Senate, with members selected by state legislatures, would constitute a bulwark against federal usurpation and encroachments on state sovereignty. (J. Madison, Federalist 39, 44, 62) Even with the popular election of senators, the role of the Senate remains to act as a buffer and shield between the two levels of government. However, the Senate has abdicated that role, paralyzing itself by the filibuster, and leaving federal agencies free to run roughshod over the states. Recent examples include federal rules to control western ground water and to regulate coal power plants out of existence. Congress, led by the Senate, should respond with legislation to rein in rogue federal agencies. Corrective legislation may be vetoed by the President, but at least he would then have to explain to the American people why he ignored their elected representatives. As Congress sits idly by, states are forced to seek relief in the federal courts, but relief is unlikely as many courts are now staffed with appointees of the President.
Finally, the filibuster rule damages the democratic process by denying the people the fruits of a successful election. When Republicans took majority control of the Senate in the last election, supporters hoped and assumed it would make a difference in public law and policy—but nothing has changed. Senator Hatch claims that is good, arguing that it is better to wait for “two or three successive victories at the polls to build a filibuster-proof majority.” I respectfully disagree. The people should not have to wait indefinitely—for a condition that may never occur—to see the results of their vote reflected in public policy. As Governor Bobby Jindal has observed in calling for an end to the filibuster rule, “If electoral mandates have no meaning, voting loses its efficacy and participation becomes less appealing. If voting doesn’t change anything, why bother?”
In ancient Rome it was said that “Nero fiddled while Rome burned.” In America today, the Senate filibusters while our nation drifts further from its constitutional moorings. The filibuster epitomizes Washington gridlock. It is time for the Senate to abolish its filibuster rule and return to its proper role—not merely to deliberate and delay, but to act as protector of the Constitution, the States, and the People.
ILLEGAL IMMIGRATION: Immigration policy and enforcement is a matter of federal law over which Congress has failed to reach agreement. My heart goes out to families in other countries racked by poverty, crime, and violence. I too would seek a better life in another country if necessary. Many of our agricultural industries require legal immigrant labor to continue operation. However, immigration must be legal and ordered. We must secure our borders and enforce the rule of law. Removing the incentives for illegal immigration, such as illegal employment and birth-right citizenship for illegal immigrants, may help. This is an issue of public security and safety, to prevent not only identity theft, but cultivation of marijuana on our public lands and expansion of violent drug cartels into our state. National borders still mean something; we have a right to know who is here and whether they present a threat to our citizens. As a sovereign state, we have the right and the duty to exercise our police power to protect our own citizens.
FREEDOM OF RELIGION: I will work to ensure protection of this God-given right. Religious rights are not confined to a church building one day a week. We have a right to religious expression and action in public and in our places of employment.
SECOND AMENDMENT: I fully support our constitutional right to bear arms and will resist any effort to erode that precious right.
THE CONSTITUTION AND GAY MARRIAGE
(Published in Deseret News 9/17/14)
On September 17, we commemorate the 227th anniversary of our Constitution, revered by all Americans as a limitation on government power and a guaranty of individual rights. The question that rages across the country today, far removed from the colonial era of its adoption, is whether the Constitution guarantees same-sex couples the right to “marry.” Lower federal courts, in their haste to follow the path of political correctness, have ignored not only Supreme Court precedent, but long-standing constitutional principles of federalism and separation of powers.
The Tenth Circuit Court of Appeals recently held that gay couples “possess a fundamental right to marry and to have their marriages recognized” through a state marriage license. The ruling thus acknowledges the distinction between “marriage” and a “marriage license.” Dictionaries and Supreme Court decisions define “marriage” as the legal or social union of a man and woman for the purpose of forming and rearing a family. Marriage, as a social union, pre-dates and may exist without governments or laws. Marriage is the natural human condition decreed by our creator for the conception and rearing of children and the propagation of our race. Thus, for most of human history, marriage has been regarded as the union of a man and woman. However, since Lawrence v. Texas was decided in 2003, recognizing a constitutional liberty interest in homosexual relationships, same-sex couples have been free to enter and maintain social unions that amount to “marriage.”
Accordingly, what gay couples are demanding today is not the right to maintain the social union of “marriage,” but the state’s endorsement of that social union through issuance of a marriage license. However, Lawrence made clear that its holding is limited to a liberty interest in the homosexual relationship; that case does not declare a “fundamental right” and “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”
Moreover, licensing and regulation of marriage is left by the Constitution to the states. As the Supreme Court repeatedly emphasized in U.S. v. Windsor, striking down the federal definition of marriage, states possess “full power over the subject of marriage.” Historically, federal courts do not adjudicate issues of marital status, but defer to state-law policy decisions. To do otherwise is a “federal intrusion on state power.”
Therefore, while Utah may not and does not prohibit same-sex unions, the state is free to exercise its licensing authority to encourage or endorse heterosexual unions as the form of marriage deemed most beneficial to children, parents, and society. This statutory distinction does not violate equal protection because, under established constitutional standards, the distinction must have only a “rational basis,” which it does: Heterosexual couples may naturally reproduce. This deferential standard protects legislative policy judgments from judicial encroachment by federal judges who may simply disagree. In short, a marriage license, which gay couples seek, is not a “fundamental right” or a constitutional right—it is a statutory right—granted only through compliance with state statute.
The Constitution does not require the state to ignore the wisdom of the ages in defining legal marriage. Gay couples argue that licensing their marriages would do no harm to traditional marriage; however, social standards follow legal standards, and traditional marriage would certainly be diminished and weakened over time with the message that fathers or mothers are dispensable or interchangeable. While statutory distinctions may be imperfect, the Constitution does not prohibit our pursuit of the ideal. We accord same-gender relationships respect and allow them to form unfettered, but the state is not constitutionally bound to sanction them as legal “marriage.” On this Constitution Day, we may still hope and expect that the Supreme Court will re-affirm these established principles of that inspired document.
STRENGTHENING CITIZENS:
- Elected officials: All political power originates with the people--not with the Legislature or government officials. As a legislator, I intend to listen to and do the will of the people to the best of my judgment. I support efforts to improve the reapportionment process and to increase voter participation.
- Initiative Power: The Utah Constitution retains for the people the power to pass laws--a power equal to that granted the Legislature. I agree that this power should not be used lightly; however, the Legislature has imposed so many obstacles to public initiatives that the process is almost impossible. I will work to remove those obstacles to make the process more fair.
- Constitutional Amendment: The Utah Constitution is a grant of power from the people to the state government; yet, it contains no provision for the people to initiate an amendment. I support restoring to the people the authority to amend their own founding document.
STATE SOVEREIGNTY AND PUBLIC LANDS: Our U.S. Constitution established a federal government with limited and enumerated powers. All other government power is retained by the people and the states. Our Constitution and our Republic are in jeopardy today because the federal government has exceeded its enumerated powers. I will work in the Utah Legislature by all legal means to challenge federal incursions into state matters and help restore the constitutional balance of power. This includes an inventory of all federally-controlled lands and steps to transfer to state control all public lands that do not have a national purpose.
TAXATION: "The power to tax is the power to destroy." Government holds public revenues in trust and must always seek the most efficient and beneficial use of those revenues to keep tax rates as low as possible. I favor a balanced source of tax revenues from income, property, and sales. I believe that all who benefit from government services should contribute fairly to the cost of those services, and that the burden of taxation should not fall disproportionately on any individual or segment of society. Tax policy must encourage private enterprise to flourish.
LEGISLATURE: I will work to improve legislative ethics, campaign finance laws, and the legislative process to better serve the real needs of the public.
PRISON RELOCATION
(Published in Deseret News 12/22/14)
Missing from the public debate on prison relocation is an acknowledgement of the vital purpose of the prison and the valuable service rendered by corrections employees. Residents and elected officials of communities near proposed sites each appear determined not to be outdone in their vociferous public disdain for the prison, which is portrayed as a cesspool of humanity that merely consumes our resources and threatens our property values. Inmates are characterized as refuse or garbage being “dumped” on a reluctant populace.
This attitude reminds me of Ebenezer Scrooge in Charles Dickens’ A Christmas Carol. When Scrooge was asked to donate to poor debtors he responded, “Are there no prisons?” When Scrooge protested that Jacob Marley’s chains were unfair because Marley had been “a good man of business,” Marley responded: “Mankind was my business. The common welfare was my business; charity, mercy, forbearance, and benevolence were, all, my business.” As the story goes, Scrooge was able to avoid his own chains “by an altered life.” The moral of the story is that even the most hardened individuals can change with the help of others, and that consideration of human needs is more important than the almighty dollar.
A prison is not a bad place, a dump or a sty; it is a necessary facility that serves a vital function in society. We are governed by laws to maintain our common safety and order. When we violate the laws, a punishment is affixed, which may include incarceration both to protect others and to reform the offender. Our prisons and jails are occupied by those who have violated the law and harmed others, but they are not refuse to be tossed out or set adrift—they are fellow human beings who need our assistance. With time and assistance from skilled professionals, inmates may learn and change—miracles can be wrought within the prison walls. Those who work in these correctional facilities as security officers, instructors, medical providers, mental health professionals or in other capacities provide a noble service deserving of our appreciation and respect.
I am not suggesting that a prison should be placed in our neighborhoods or in proximity to the general public. Public safety and peace of mind are paramount. The Prison Relocation Commission could have avoided much of the public outcry by proposing sufficiently remote sites in consultation with affected local residents and officials. I am suggesting that our dialogue should be tempered, and our perspective should be broadened to include the beneficent purposes of a prison and respect for those who reside or work there. Residents and officials concerned about potential prison sites should consider not just their own narrow interests, but the “common welfare” and the “business of mankind.” Our primary objective in relocating the prison should not necessarily be economic development of the chosen site, but achievement of the purposes of the prison: public safety and inmate reform. The state of course should be expected to carry the added costs to ameliorate the local impacts of a prison to the extent possible. However, opposition based on unfounded fears, potential stigma, or popular hysteria is unproductive.
Meanwhile, given the public opposition to prison relocation, I call on fellow legislators to reconsider possible renovation of the prison on its current site. Otherwise, let’s work openly with local residents and officials, without force, fear, or surprise, to find an acceptable site that meets the needs of the state and satisfies the concerns of the people for the location of this needful state institution.
Merrill Nelson
164 South 800 EastGrantsville, UT 84029
801-971-2172
mnelson@le.utah.gov
164 South 800 EastGrantsville, UT 84029
801-971-2172
mnelson@le.utah.gov
