Mike Kueber's Blog

June 26, 2012

Arizona v. United States

Filed under: Issues,Law/justice,Politics — Mike Kueber @ 4:11 am
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Earlier today, the Supreme Court handed down a long-awaited decision regarding Arizona’s immigration law known as S.B. 1070.  In a 5-3 decision (with Roberts and Kennedy voting with three liberals and Sotomayor recusing herself), the court struck down three of the four major provisions in the law, but sustained the most controversial one – 2.b. – which requires police officers to make a “reasonable attempt . . . to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.”

The three provisions that were struck down are the following:

1.         Section 3 makes failure to comply with federal alien-registration requirements a state misdemeanor.

2.         Section 5(C) makes it a misdemeanor for an unauthorized alien to seek or engage in work in the State.

3.         Section 6 authorizes state and local officers to arrest without a warrant a person “the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States.

In sustaining Section 2.b., the Supreme Court Three noted that there are three significant limitations built into the law:

  1. First, a detainee is presumed not to be an alien unlawfully present in the United States if he or she provides a valid Arizona driver’s license or similar identification.
  2. Second, officers “may not consider race, color or national origin . . . except to the extent permitted by the United States [and] Arizona Constitution[s].”
  3. Third, the provisions must be “implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens

The second limitation above has always been the most problematic, and I have yet to see any credible discussion on how to separate “reasonable suspicion” from racial profiling.  Unfortunately, the Supreme Court decision failed to address this concern, so we will have to continue struggling with it.  Like the producer in The Newsroom last night who, when asked to describe a worker who had helped him, felt it would be inappropriate to describe him as “Indian” even though that would have been quickly effective.  Or like me today, when the black physical-therapy receptionist asked me to identify the therapist who previously handled my knee therapy.  I felt uncomfortable describing him as a black guy, and after some hesitation, I said he looked just like Cuba Gooding.

Although political correctness is becoming a cliche, I don’t know how else to characterize our floundering with this issue.

March 14, 2011

For a politician, it’s always about me

Filed under: Issues,People,Politics — Mike Kueber @ 1:34 pm
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I’ve always suspected the sincerity of politicians who claim to be serving the public.  If you examine their actions, you will see that they rarely do anything that is contrary to their self-interest – whether adopting their pension plan or gerrymandering their district boundary or limiting their financial shenanigans.    

This morning’s paper contained another example of this political narcissism.  The San Antonio Express-News had an article reporting of the activities of three federal legislators who are attempting to cover for Arizona Congresswoman Gabby Giffords as she attempts to recuperate.    The legislators’ activities included asking questions at hearings and even raising money for her 2012 election.  Although their attempts are perfectly appropriate gestures for a friend, I think that people should remember that Congresswoman Giffords’ House seat is not about her, it’s about the people in her congressional district.  They deserve more than a rudderless staff and few token questions at congressional hearings. 

I previously blogged about an Arizona law that provided for incapacitated legislators to be replaced if they are unable to return to service for 90 days.  At the time, there were rumblings in Arizona about circumventing the law, but I haven’t read anything further about that issue.  Circumventing the law would not be a good idea.  As an author on investing advised in his book, dispassionate decision-making is almost always better than emotional decision-making.  It doesn’t make sense to develop a strategy for dealing with a situation and then abandon that strategy later in the heat of the moment.  That is what Arizona would be doing if it were to circumvent its rational plan for dealing with 90-day incapacitation. 

This is about Gabby’s constituents; it’s not about her.

October 29, 2010

Arizona’s Proposition 200 and the Halloween haunting by Sandra Day O’Connor

It is fitting that during Halloween week, Supreme Court justice Sandra Day O’Connor has decided to haunt again America’s conservatives.  As you may recall, in one of her most monumental decisions – 2003’s Grutter v. Bollinger – she ruled that affirmative action in higher-education admissions was an evil that America should try to phase out in the next 25 years or so.  Until then, she concluded that the benefit of classroom diversity outweighed the evil of reverse discrimination.

Full-blooded conservatives may have felt relief when moderate conservative O’Connor retired and was replaced by stalwart conservative Alito.  In her retirement, however, O’Connor would occasionally serve as a guest judge on the Ninth Circuit Court of Appeals, and as luck would have it, she was guesting as part of the three-judge Ninth Circuit panel that earlier this week overturned a critical part of Arizona’s Proposition 200.  Gonzalez v. State of Arizona, 08-17094 (Ninth Circuit, October 26, 2010). 

Proposition 200 was passed by the people of Arizona in 2004.  The critical part of the proposition requires people who are registering to vote to show proof of their citizenship – e.g., driver’s license or birth certificate.  That seems like a reasonable requirement, especially in a state like Arizona with a huge number of non-citizens.  After all, citizenship is still a requirement to vote in America.

Advocates for Mexican-Americans didn’t think Proposition 200 was reasonable.  In fact, they thought it stifled Mexican-American participation in the electoral process and, more importantly, was void because it conflicted violated the National Voter Registration Act (NVRA), which only required that voter applicants give their word about their citizenship.  As Ronald Reagan didn’t say, “Trust, but don’t bother verifying.”

On October 26, 2010, a three-judge panel for the Ninth Circuit agreed 2-1 with the Mexican-American advocates, and Sandra Day O’Connor was part of the “2.”  Although she didn’t write the opinion, she concurred in Judge Ukuta’s opinion that the NVRA superseded Proposition 200.

Although I was skeptical as I started reading the Judge Ukuta opinion, I came away thinking that the decision was correctly made.  The first important point in the opinion was that the matter was controlled, not by the Supremacy Clause in the Constitution, but rather by the Elections Clause:

“’The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time by Law make or alter such Regulations, except as to the Place of chusing Senators.’  U.S. Const. art, I, § 4, cl. 1. In a nutshell, the Elections Clause gives state governments initial responsibility to regulate the mechanics of national elections, but only so far as Congress declines to preempt state legislative choices.”

This is an important distinction because a court’s analysis under the Supremacy Clause attempts to maintain a delicate balance between state and federal governments and to preserve state authority where possible.  By way of contrast, a court’s analysis under the Elections Clause does not involve two competing sovereigns, but rather one dominant sovereign (the feds), with the states having delegated, not reserved, authority. 

After deciding that this matter would be controlled by the Elections Clause, it was only a short jump for the court to decide that requiring proof-of-citizenship conflicted with the easy-to-register procedures established by the 1973 NVRA.  As the court noted, the NVRA was a comprehensive law that included the infamous “motor voter” provision and even forbade states from requiring that any registrant statements be notarized.  (The law was obviously the brainchild of the same type of Congress that contributed to the financial crisis of 2007-2008 by pushing for everyone in America to own a home, including the $14,000 strawberry picker in California who obtained a government-backed home mortgage for $700,000.)

An interesting nuance to the Gonzalez decision is that it applies only to registration for federal elections.  State and local jurisdictions are free to establish different requirements for their non-federal elections.  In fact, I read last week that there are several northeastern jurisdictions in the process of enabling legal non-residents to vote in local elections.  If the federal government refuses to amend the NVRA, perhaps Arizona should consider limiting Proposition 200 to non-federal elections.

Personally, I have always believed that increased voting should be an objective and a benchmark of America’s civic-mindedness.  But I don’t believe in artificially increasing participation by dumbing-down the process.  Instead of making it easy to vote, let’s make it something that people care about, at least as much as football.

October 10, 2010

An epiphany on the Arizona law against illegal immigration, racial profiling, and political correctness

During my bike ride today, I was ruminating on the continuing controversy over Arizona’s law against illegal immigration.  Like many controversies, this one is polarizing, and I have been drawn to pole of the law’s supporters.  Although America has traditionally said, “Give me your tired, your poor, your huddled masses yearning to breathe free,” we can’t accept unlimited numbers of immigrants.  And as a practical matter, we can’t fully control immigration by putting up walls and fences.  Rather, we need to improve border security and then supplement it by policing the interior.  How can you expect to stop illegal immigration by allowing the entire interior of the American to become a sanctuary? 

While opponents of the Arizona law hyperbolically claim that the law will require Hispanics to “show your papers,” supporters of the law counter that all Americans are routinely required to prove their identity, usually with a driver’s license.  My epiphany on my bike ride was that we could eliminate racial-profiling arguments by simply requiring that all people stopped by the police must prove their identity, not just those who are “reasonably suspected” of being illegal immigrants.  But as I cogitated on this epiphany, I started thinking of practical problems, such as how to deal with the people (e.g., homeless or very old people) who don’t have driver’s licenses.  The two options that come to mind are both problematic – (1) give officers the discretion to let such people go, but that revives the possibility of racial profiling, and (2) require everyone to have an ID card, but that raises libertarian concerns.

Personally, I think the best course of action is to have a national discussion on what forms of racial and ethnic profiling are acceptable.  Liberals argue that all such profiling is illegal, but conservatives respond that political correctness shouldn’t force us to tie the hands of law enforcement when profiling makes them more effective.  Alternatively,  I think most people would be comfortable with a national ID card.  Such a card would not be any more invasive that the periodic census.

July 20, 2010

Is San Antonio ready for public financing of political campaigns?

Several weeks ago, there was a column in the SA Express-News endorsing the Fair Elections Now Act (FENA), a bill in Congress that provides for public financing of congressional campaigns.  The premise of the FENA is that the corrupting influence of money in politics will be reduced by public financing of campaigns.  Because I agree wholeheartedly with this premise, I wrote to my congressman Ciro Rodriguez urging him to support the bill.  Rodriguez responded with a lengthy description of the bill, but failed to indicate whether he would support it.  (See his response attached below.)

The issue of public financing of campaigns was fading from my radar until I saw an article in the NYTimes about NYC’s Campaign Finance Program.  The article prompted an obvious question – why not adopt public financing of campaigns for local elections in San Antonio?  Voters in San Antonio are so cynical about corruption in city government that they have adopted a draconian term-limits ordinance.  Although this has helped some, there is still a prevailing view that people with money have too much influence in San Antonio government.  Public financing of political campaigns would potentially minimize that influence.

How does the NYC program differ from the federal proposal?  Qualifying in NYC is much less onerous.  Whereas the federal proposal requires 1,500 in-state contributions of no more than $100 each for a total of at least $50k, the NYC program requires only 75 in-district contributors of no more than $175 for a total of at least $5,000.  The federal payout to the campaign is also much larger – $360k for a primary, $540k for a general election, plus $4 for every dollar raised above $50k.  By comparison, the NYC program pays candidates $6 for every $1 of qualifying contributions, up to a maximum of $92.4k in public financing and $168k total campaign spending.  Both programs allow non-qualifying contributions above the $100/$175 qualifying caps.  The NYC program seems clearly preferable for two reasons:

  1. Accessibility.  The qualification requirements of the NYC program enable candidates without broad-based, well-organized campaigns to benefit from public financing.  Because of the onerous requirements in the federal proposal, the rich will get richer and the poor will be marginalized even more. 
  2. Controlling spending.  The NYC program attempts to control the costs of campaigns by limiting participating candidates to absolute maximums, whereas the federal proposal merely sweetens the pot without placing any absolute maximums.   

While researching the NYC program, I learned that two states – Maine and Arizona – have more than a decade of experience with public financing of campaigns and that two cities – Albuquerque, NM and Portland, OR – have experience with public financing since 2005.  All four of these jurisdictions have adopted what is generally called “Clean Elections” systems.  Under a generic Clean Elections system, candidates wishing to receive public financing must collect a certain number of small qualifying contributions, usually $5, from registered voters. In return, the candidates are paid a flat sum by the government to run their campaigns, and they agree not to raise money from private sources.  The following is a thumbnail description of each jurisdiction:

  • Maine adopted its Maine Clean Election Act via voter initiative in 1996.  Legislative candidates qualify for public financing if they obtain $5 contributions from 60 voters in a state rep’s district and 175 for a senator.  The total payout to the campaign equals the average campaign costs in the two previous elections.  The qualifying period is more than three months and there is a $100-contribution limit on seed money to assist in collecting contributions, up to a total of $500 for state reps and $1,500 for senators. 
  • Arizona adopted its Citizen’s Clean Election Act via a voter initiative in 1998.  Legislative candidates qualify for public financing if they obtain $5 contributions from 220 voters.  A qualified candidate is entitled to $14,319 in the primary and $21,479 in the general election – approx. 20×1.  Seed money is limited to a total of $3,580, with $140 per contribution and $640 for a personal contribution.
  • Albuquerque, NM adopted its Open and Ethical Election system in 2005.  Candidates qualify for public financing if they obtain $5 contributions from 1% of the registered voters in their district during a 45-day window.  In the mayoral contest, a candidate would need to obtain $5 contributions from 3,280 registered voters and then would receive $328,000 for the campaign.  Essentially the public financing is 20×1. 
  • Portland, OR adopted its Voter-Owned Elections system in 2005.  Candidates qualify for public financing if they obtain $5 contributions from 1,000 registered voters.  They are also allowed to collect seed money of up to $100 ($20k total).  Qualified candidates receive $200,000 (less their seed money and qualifying contributions) for their campaign – 40×1.  The qualifying period is over four months long.

From the four jurisdictions with Clean Election laws, we can glean that qualifying contributions of $5 seems to be a good number.  For some reason, the two cities require a relatively high number of qualifying contributions (around 1% of the voters), whereas the two states require a more attainable number.  All the systems place an absolute cap on the total amount of spending allowed, and private money plays no role except as “seed money.”  The amount of the cap seems to depend on the cost of communications in the jurisdiction.

How would public financing work in San Antonio.  Currently, the only campaign restrictions in SA are contribution limits of $500 for council positions and $1,000 for mayor.  The municipal code provides the following objective for these limits:

  • “It is essential in a democratic system that the public has confidence in the integrity, independence, and impartiality of those who are elected to act on their behalf in government. There is a public perception that a relationship exists between substantial contributions and access to elected officials. To diminish the perceived or actual connection between contributions and influence, the City adopts this Campaign Finance Code to promote public confidence and, it is hoped, a greater degree of citizen participation in the electoral process.”

Although the $500 limit on contributions to council elections avoids the most egregious forms of political corruption, there can be no question that lowering the contribution limit to $5 would truly level the playing field.  The main issue is whether the number of required contributions should be set (a) high so that only broad-based, well-organized campaigns can qualify for public financing or (b) low so that new, unknown candidates are encouraged to enter the arena.  Because the latter is clearly preferable, I suggest a threshold of only .5% of the registered voters, which would be about 300 contributors for a council district in San Antonio.  (I collected 600 signatures in 60 days to get on the 23rd Congressional district ballot, and that was no mean feat even without a $5 contribution.) 

The second most important issue is to establish a maximum amount that a campaign is authorized to spend.  According to 18-month campaign finance filings by SA’s current council members, their campaign spending varies significantly from district to district – from a low of $16k in District 5 to a high of $58k in District 1, with an average of about $40k.  From this we can conclude that $45k is enough to run an adequate campaign.  If we were to allow candidates to collect up to 600 $5 contributions, and then match each contribution with public financing of $70, a campaign could have a total of $45k when combining public financing and $5 contributions.        

This is a winning plan that I will present to the Council for their consideration.  I will also need to follow-up with Ciro to suggest that, although public financing is a good idea, the federal Fair Elections Now Act is seriously flawed.

Ciro’s responsive email

Ciro provided me with the following lengthy response, but didn’t really take a position:

Dear Mr. Kueber:

Thank you for your support of H.R. 1826, the Fair Elections Now Act. I appreciate your comments and I am pleased to respond to your inquiry.

The Fair Elections Now Act was introduced by Rep John B. Larson (D-CT) on March 31, 2009. This legislation amends the Federal Election Campaign Act of 1971 (FECA). The purpose of H.R.1826 is to encourage federal candidates to run for office without depending on big donors for contribution. This will limit influence on elected officials as well as limit “political paybacks.” Furthermore, this will encourage candidates to seek support from their communities, and pay attention to the needs of their community.

In brief, the bill would create a Fair Election Fund to match small contributions of less than $100 from individuals in their state.  Qualified candidates would receive Fair Elections funding in the primary, and if they win, in their general election at a level to run a competitive campaign.

Please be assured that I understand the importance of curbing campaign contributions from corporations, which may lead to an unfair election process. It is imperative to hold lawmakers accountable to the American people. The citizens of this country should be able to trust the integrity of the Houses of Representatives and their elected officials.  This act attempts to address these concerns. 

H.R. 1826 has been referred to the House Committees on Energy & Commerce, Administration, and Ways & Means of which several committee hearings have been held. Although I do not sit on those committees, should the H.R. 1826 come up in the House for a vote, I will keep your concerns in mind. Again, thank you for your comments regarding this issue. If you have any further questions or concerns, please feel free to contact my office.    


Ciro D. Rodriguez

Member of Congress