Tag Archives: Indiana legislature

Under Cover Of Jargon

The Indiana Statehouse is confusing. Often, that confusion is intentional. Lengthy bills are written in turgid “legalese,” and go on for pages. I’m a (recovered) lawyer and my eyes frequently glaze over.

And very often, you don’t have to be a hard-core libertarian to wonder: is this law really needed?

That was my first question when I received an email asking about Senate Bill 471, described as follows:

Would heighten the penalties for protests near oil and gas pipelines and other infrastructure by creating the offenses of “criminal infrastructure facility trespass” and “critical infrastructure facility mischief.” The bill provides that an individual who knowingly enters critical infrastructure facility without permission commits critical infrastructure facility trespass, a Level 6 felony punishable by up to 30 months in prison. Under the bill, recklessly or knowingly defacing such a facility constitutes critical infrastructure facility mischief, punishable by up to six years in prison as a Level 5 felony. In either case, the individual may additionally be liable to the property owner for damages, costs, and attorney’s fees. An organization found to have conspired with an individual who commits either offense may also be liable for a fine of $100,000. The bill newly defines “critical infrastructure facility” under Indiana law to include a range of oil, gas, electric, water, telecommunications, and railroad facilities, as well as any “facility that is substantially similar” to one of the listed facilities.

No one wants to see a “critical infrastructure” damaged. But a bit of digging suggests that more is going on with this bill–being pushed in several states by ALEC, evidently in reaction to Dakota pipeline protests– than the protection of “critical” utilities.

As my correspondent notes,

This description is accurate, but to get into more specifics one of the most troubling provisions is Ch. 10, Sec. 4 that says if an organization is found to be a conspirator with a person convicted of either trespassing or committing criminal mischief on “critical infrastructure” the organization can be fined up to $100,000. Sec. 5(a) could also potentially be interpreted as creating a cause of action by someone who has suffered damages not only against the person who caused the damage, but an organization found to be a conspirator with that person, to recover those damages. If that was the case the organization could be liable for more than a $100,000.

A Sierra Club officer explains the effect:

A couple of years ago the Hoosier Chapter was in discussions with some Northwest Indiana groups about a protest at the BP Whiting Refinery to oppose its expansion to allow it to process tar sands petroleum. When it became clear that some of the groups were contemplating civil disobedience, the chapter withdrew from the discussions, since the Sierra Club forbids illegal activities. In the event, about 40 people sat in front of an access to the refinery and were arrested for trespassing. I believe that most were let go without a fine. Under the proposed law, could we be found to have participated in the protest even though we withdrew? Could we be found liable for informing the public about the protest via our website, FB, and twitter, even though we didn’t support the civil disobedience? Certainly we would have to think long and hard about even participating in such discussions under this bill.

And that, I think, illustrates the actual purpose of the bill: to stifle dissent.

Indiana already has laws against trespassing and damaging property. S.B.471 ramps up the severity of the potential charges–from misdemeanors to felonies–and greatly increases the penalties. Although the bill contains a recitation that it is not intended to apply to “constitutionally-protected activities” (a provision added to mollify opponents of the measure), the question from the Sierra Club officer illustrates the chilling effect.

If one or two people at a protest inflict damage that was unintended and unforeseen by others, those others–including not-for-profits and civic organizations–run the risk of being hit with enormous fines. Of course they would “think long and hard.” That’s the whole point.

I am aware of no evidence that existing measures against trespass and property damage are inadequate or ineffective. But unnecessary and chilling as it may be, S.B. 471 is apparently moving “under the radar” toward passage.

This is how it’s done by the big “players” who understand how the system works.

While public attention and media coverage (such as it is) are focused on high-profile measures like bias crimes and teachers pay, troubling laws get a pass–in both senses of that word.

 

 

The Inmates Running Indiana’s Asylum

Meanwhile, on the local front….

As I was busy avoiding last Friday’s Inauguration, a reader sent me the digest of an bill introduced in the Indiana legislature, demonstrating that insanity isn’t confined to Washington, D.C.

The official synopsis of House Bill 1127 reads as follows:

Nullification of EPA regulations in Indiana. Nullifies all regulations imposed in Indiana by the United States Environmental Protection Agency (EPA). Provides that the department of environmental management shall provide environmental protection for the citizens of Indiana. Effective: July 1, 2017.

The fiscal analysis of the measure (which evidently assumes that there is no such thing as the Supremacy Clause of the U.S. Constitution) is blunt: According to the Legislative Services Agency’s Office of Fiscal and Management Analysis,

the bill nullifies all regulations imposed in Indiana by the United States Environmental Protection Agency (EPA). It provides that the Department of Environmental Management shall provide environmental protection for the citizens of Indiana… The Indiana Department of Environmental Management (IDEM) would be solely responsible for providing environmental protection for the state due to the nullification of U.S. EPA regulations provided in this bill. The impact to IDEM would be the loss of federal funds from the U.S. EPA that are used to run programs and provide funding for the staff assigned to those programs. This would also result in a reduction of the amount of state matching funds (about $11 M in dedicated funds annually) that the state would have to provide to receive the federal funds. If IDEM continues the programs, the costs would be funded only through state appropriations.

This bill could result in the loss of about $22.5 M annually in federal funding from the U.S. EPA. Of this amount, about $2.2 M was disbursed to local units in FY 2016…. Local units receiving funding from U.S. EPA grants through IDEM could experience a decline in funding. For FY 2016, local units received about $2.2 M in grant funding through U.S. EPA funds received by IDEM.

The operative phrase, of course, is “If IDEM continues the programs…” It is fairly obvious that the purpose of this legislation is to allow Indiana to discontinue programs that protect the state’s air and water.

I have no idea whether this retrograde effort will get a hearing, nor do I know anything about Representative Judy, who introduced it. We can hope that legislative leadership recognizes both the unconstitutionality of the measure–after all, states cannot simply “nullify” federal regulations with which they disagree, no matter how much they might want to–and the considerable political capital it would cost them.

Despite the rejection of climate science by Republican ideologues and Trump cabinet nominees, survey research confirms that large majorities of both Republicans and Democrats accept settled science and strongly favor environmental protections.

Bills like this raise the question–perennial in Indiana–WHO ELECTS THESE PEOPLE??

Thankfully, a Lot of People Don’t Find Redistricting Boring….

The second meeting of Indiana’s Interim Study Committee on Redistricting, of which I am a lay member, was held yesterday. Despite the fact that it was a Thursday afternoon, and the meeting started at 1:00, there were well over 100 citizens present; they filled the House Chamber and from where I was sitting, it looked like they filled the balcony too.

The purpose of this meeting was to hear expert testimony. (Discussion leading to the committee’s recommendations will come at the next two meetings. I’ll blog the dates and times when I know them.)

There were two presentations; one from a lawyer with the Brennan Center for Justice, affiliated with New York University Law School, and the second from the Senior Legal Counsel to the Iowa LSA–the person responsible for directing Iowa’s redistricting process.

The Iowa presentation was a description of that state’s use of an independent commission to draw district lines–from all reports, a very successful effort to draw districts in a fair, transparent and nonpartisan way, and one that has earned the strong approval of most Iowa voters.

The first presentation, by Michael Li of the Brennan Center, focused upon the negative consequences of gerrymandering, and the current efforts of several states to reform their processes. He included a couple of interesting points that tend to get lost in discussions about gerrymandering’s more obvious effects.

Li pointed out that the redistricting “nitty-gritty”–the drawing of the lines–isn’t handled by local politicians; instead, the national parties send in teams of “experts” whose expertise is in manipulating data and computer programs, and who know little about the politics or culture of whatever state they are carving up. This dependence on national party operatives facilitates the contemporary shift of power and influence from state policymakers to national ones– further nationalizing America’s political parties.

Li also noted that although redistricting reform might not effect much change to the partisan composition of a state’s legislature, especially in very Red or Blue states, it does tend to change the nature of the partisans who hold those seats. (Social science research supports that observation; in states using independent commissions, Representatives of both parties tend to be less rigidly ideological and more willing to work across the aisle.)

This last observation is particularly important, because one of the arguments used by defenders of the current system (like Senator Hershman today) is to claim there are states where redistricting reform has changed a very minimal number of seats, and that shows the current system isn’t really a problem.

As Li quite properly responded, partisan shift is not the metric we should apply. In Republican states like Indiana, redistricting reform is unlikely to change control of the Senate, for example. If fewer elections are decided in the primaries, if fewer general elections are uncontested, if new people emerge to challenge incumbents, and –when those incumbents die or retire–if there is genuine competition for the open seat, then reform has worked.

When Senator Pat Miller challenged the notion of “nonpartisan” commission members–making the point that everyone has political opinions–Li agreed that most people have what we might call “political orientation,” although he noted that there is a difference between redistricting done by people who are deeply involved in the political process and that done by people who are not politically active. He compared the process to the composition and operation of juries; people serving on juries have prejudices and opinions, but most who serve take their responsibilities very seriously, evaluating the evidence and following the judges’ instructions.  ( I found the comparison compelling because when I was a practicing lawyer, I saw juries in operation, and saw the same seriousness of purpose.)

The one thing that seemed clear in the wake of the meeting was that Senators Hershman and Miller are not going to be voting for reform of any kind. But I have high hopes for the rest of us.

Indiana Legislative Folly….Rinse and Repeat…

Remember House Bill 1082? The “No Stricter Than” measure that would prohibit Indiana’s environmental agency from acting to combat local environmental threats if the proposed action was “stricter” than EPA standards?

I am not the only observer pointing to the real dangers--not to mention absurdity– of that measure, which has been moving inexorably through the legislative process.

The utter hypocrisy of the GOP on the EPA and environmental regulation was on vivid display last week in a Congressional hearing called to address the water crisis in Flint, Michigan:

In a House hearing last week, GOP lawmakers focused their outrage on the weakness of EPA regulations and actions that contributed to the Flint disaster. However, The New Republic has detailed their consistent opposition to its regulatory actions.

Republicans in Washington and Indianapolis constantly complain about EPA “overreach.” In one of the recent GOP debates, Jeb Bush called for sending EPA authority back to the states, and he is hardly alone. Indiana Governor Pence has been an ardent foe of virtually all environmental efforts, and has made the EPA a special target, despite the fact that Indiana’s air and water rank among the country’s most polluted.

For years, at the urging of well-heeled industry lobbyists and donors, Republicans have done everything they can to neuter the EPA and eviscerate its regulatory power— and now, when faced with an environmental crisis, Congressional Republicans have the gall–the chutzpah–to blame that crisis on “weak” EPA regulations.

At the very same time, back home in Indiana, Republican state legislators —still singing the lobbyists’ song—are insisting that EPA regulations are so strong that we shouldn’t allow state government to supplement them. Ever. No matter what.

You really can’t make this shit up.

 

Guns, Gays and Greenhouse Gases…Welcome to Indiana’s Legislature

I don’t know about the rest of you, but when Indiana’s (mercifully part-time) legislature is in session, I tend to break out in hives. Thanks to our massively gerrymandered election map, a number of people who get elected to that august body tend to advocate measures that don’t reflect the opinions of most Hoosiers.

It’s hard to escape the conclusion that, in many cases, Indiana’s lawmakers’ actual constituencies are the special interests–the NRA and gun manufacturers, the Christian Right, Big Agriculture….

A quick look at some of the bills being considered this year may illustrate the point:

Let’s start with guns. Every year, guns kill some 33,000 Americans. The Indiana General Assembly isn’t deterred by that number, or by repeated massacres of children and innocents. No siree. This year, bills have been introduced 1) to get rid of Indiana’s requirement of a license to carry a handgun, 2) to allow guns at public universities and state office buildings, and 3) to make it easier for repeat alcohol offenders to get a handgun license.

What could possibly go wrong?

I’ve posted previously about the reluctance of our lawmakers to just bite the bullet and admit that LGBT folks are citizens and taxpayers entitled to the same civil rights protections that apply to women, racial minorities and religious folks. (Although it has been sort of enjoyable to watch the discomfort of legislators who are used to doing the bidding of both the Religious Right and business interests—constituencies that are on opposite sides of this issue.)

Survey research has uniformly found a solid majority of Hoosiers favor adding “four words and a comma” to the state civil rights statute. Employers large and small are lobbying for that approach, and significant numbers of clergy and other representatives of faith communities have come out to support it–but our lawmakers have thus far been reluctant to incur the wrath of the small (but shrill and intensely homophobic) Christian Right.

Then there’s HB 1082, authored by Representative David Wolkins. Dubbed the “no more stringent than” bill, it would forbid Indiana agencies from making or enforcing any environmental rule that is more stringent than those established by the federal government. As the Palladium-Item noted

Indiana consistently ranks near the bottom of the states regarding environmental quality. If State Rep. David Wolkins, R-Winona Lake, has his way, Indiana will stay there.

As the Hoosier Environmental Council points out, the situation in Flint illustrates precisely those gaps in federal regulation that Indiana would be prevented from addressing under HB 1082: For example, under federal regulations, drinking water systems can continue to deliver lead-tainted water to households and businesses for up to 24 months while a variety of fixes are attempted. In 24 months, children’s health and cognitive abilities can be permanently damaged.

In fact, there are a number of areas where EPA regulations are considered weak, among them pollution from fracking, factory farm manure pits, and outdoor wood boilers. There are probably others.

Why would we want to prevent Indiana from addressing areas where federal regulations may prove to be inadequate for our needs? It isn’t as if the absence of a “no more stringent” bill would require the state to act. Why tie the hands of those charged with citizens’ public health and safety?

I’m sure a closer examination of the bills that have been introduced would uncover still others belonging to the category that I call “good god, what were they thinking?”

Maybe I should just drink until they go home….