Investors Business Daily has a pro-Hatch propaganda piece up that deserves a few tweaks.

First, the headline says that republicans must gain control of Congress for the economy to recover. Do we really need to remind everyone that Republicans had almost uninterrupted control of Congress from 1995 to 2007. Had Republicans retained control of Congress beyond 2007 does anyone really believe the economy would not still have gone into the great recession?

Second, IBD claims that re-electing Orrin Hatch is crucial if Republicans regain control because “Orrin Hatch will be the first genuine free-market conservative to {become chairman of the Senate Finance Committee}.” Yes, the same Orrin Hatch who cosponsored PIPA until it was politically untenable and wanted to blow up the computers of anyone with pirated software while his own website was powered by an unlicensed copy of software is now “a genuine free-market conservative.” The author, Ernest Christian, claims that all the prior chairmen of the committee whom he had worked with were either liberals or moderates. I’ll take him at his word on that but his description of moderates as “too often … unwilling to make a clear-cut choice between the free-market principles of conservatives and the big-government desires of liberals” is perfectly descriptive of Hatch. The fact that Mr. Christian has been working with every SFC chair since 1970 shows what is really going on here – it’s one old political dog going to bat for another.

For those who want to see the economy truly recover there is only one answer – we need a new generation of conservatives in Washington and we need enough of them there to change the way the rest of the Republicans act in office. As soon as we say “new generation” you know that Orrin Hatch will never fit that bill – he’s as entrenched an incumbent as you’ll ever find.

The other day I was sitting on a bus with time to let my mind wander. I was thinking about our presidential campaign season and the ideas being promoted by our current candidates – including our current president – when I found myself considering what kind of a president I think our nation needs – specifically I began to formulate what ideas he would offer in seeking the presidency. I decided to write up the platform ideas that came to mind. I’d love to hear what others think of this. I have written this in the first person not because I claim to be this candidate but because I would expect a candidate to articulate the platform from a first-person perspective.

1. Any budget proposal that I submit will not exceed actual tax revenues for the previous year. Any budget bill that I sign will be paid for, either because Congress has passed a budget that does not exceed the tax revenues for the previous year or because they have clearly raised the necessary taxes as part of the bill to pay for any spending over the amount of taxes collected in the preceding fiscal year.
2. I will not attempt to expand the powers of the presidency. I will stick to my constitutional duties. I will refrain from using the extra-constitutional powers that have previously been granted to the president, such as the ability to indefinitely detain American citizens without trial, and request that Congress officially revoke those powers from me and future presidents.
3. I will insist that Congress fulfill their constitutional duties. One major part of Congress fulfilling their duties is that I will order all regulatory agencies to enforce only those things that Congress has passed into law and not to enforce regulations created by regulatory agencies based laws passed by congress where those regulations were not specified in the bill. I will not sign bills in which Congress leaves the authority to specify particular regulations to other bodies such as regulatory agencies.
4. I will not sign any bill into law, nor allow any bill to become law without my signature, unless it has been made available for public review and comment for a total of no less than seven days prior to becoming law. The seven days counts only the time after the final version of the bill is made available. That time may include any combination of time before the bill is passed by Congress and time after the bill has been passed by Congress. In other words, Congress may choose to pass bills without allowing seven days for public input but the only way I would act on a bill without seven days of public input would be to veto the bill. I will also not sign any bill into law unless I have had time to read the bill in full.
5. As commander-in-chief of our military I will seek to maximize our national defense. The emphasis there is on the words “national” and “defense” – all military spending and activity will be focused on defending our nation in the most effective ways possible. We will seek to improve our defensive abilities wherever possible. If the use of military force ever becomes necessary under my watch I will act decisively with the intent to end the conflict as quickly and effectively as possible.
6. I will not run a campaign for a second term. I will simply do my job as President. My campaigning will not exceed participation in scheduled debates and defending myself against any false accusations that are made by those who hope to replace me. If that is not enough to win me a second term then I do not deserve a second term.

As I considered the ideas that I wrote I asked myself whether any of the current candidates would ever articulate a platform like this. My conclusion was that none of them would. I suspect that some Ron Paul supporters would argue that Dr. Paul runs a platform not unlike this. I’ll admit that he comes the closest but I am still not sure that what he would do fully correlates to what I think we need in a president – which may indicate that I have not fully fleshed it out above. Either way – I’d love to hear thoughts on the platform I have outlined.

Adam Brown had an interesting post about possible causes for low voter turnout in Utah. Adam suggests three possible causes for low voter turnout but essentially dismisses the relative youth of our state as being a cause not supported by the data (and he knows data analysis). That leaves us with two possibilities (according to his post):

Second, maybe it’s because general elections have become much less competitive over the years. … If people believe that their votes are less likely to sway the outcome (either way), then they might not bother to show up.

Third, maybe it’s because Utah strengthened its caucus-convention system in the 1990s, making it harder to force a primary and easier to win in convention.

I won’t pretend to have any insights into which of those two options might be a driving factor. What I thought was interesting was that in suggesting potential solutions to the three possible causes he listed non-partisan runoffs as a potential way to address each of the two plausible causes of the problem.

This was interesting to me four a couple of reasons. First, back when I was doing a lot more political writing than I have been recently, the issue of increasing participation in the political process was one that I was vocal about addressing. I suggested that increasing levels of citizen participation would be akin to our nation experiencing a new birth of freedom. Second, because in lamenting the voter turnout in 2008 – where we actually had fewer people voting than in 2004 despite a larger population of eligible voters – I suggested an idea that was very much like non-partisan runoffs (a term I had not heard before today). My suggestion was that in voting districts where one party received more than 60% of the votes that party would be required to field two candidates on the ballot. That idea really would work best in a runoff system where the top two candidates, regardless of party (assuming neither got over 50% initially), then had a runoff (I would suggest the Saturday after the election). In areas where the dominant party managed to get both of their candidates in the top two it would be the equivalent of an open primary between those two candidates (after the party delegates had weighed in on which two candidates should carry the banner at their conventions).

A chart from an earlier post by Adam shows that prior to me becoming old enough to vote, Utah always had at least 60% participation or more in presidential election years and 40% participation or more  in non-presidential election years. Since that time we have never hit either of those benchmarks and our participation has gone from above average to below average (measured against the rest of the nation). That leaves me with two questions:

1. Is this a generational issue?
   • Did people starting about my age an younger lower our participation levels by not stepping up to the plate when they came of age?
2. What effect would an idea like non-partisan runoffs have?
   • What would it take to implement such a systemic change?
   • How could we make such a system work in conjunction with the rest of the nation where federal elections are concerned?

I would love to hear what others think about those questions because if I really thought it would make a difference and that it was possible to make such a change I would start finding ways to get the issue on our legislative agenda (not this year of course – that would be impossible).

As a followup to last night’s special election to fill Dan Liljenquist’s term as State Senator, I noticed some interesting things based on my interactions with other delegates and my review of the actual results (round-by-round, not just the final tally).

First let me provide some metrics that some people might be interested in – we had 264 delegates eligible to vote in this election. Of those, 258 showed up and received credentials but only 257 cast ballots.

At the meeting there was discussion about the practice in IRV voting of still only choosing one candidate – more generally that can be applied to choosing anything less than all the candidates. We can’t really know for sure how many people put less than all 8 candidates on their ballots but in the last round 7 ballots were discarded because they did not include either of the remaining candidates – Todd Weiler and Randy Shumway. This means that the election was finally counted with 250 out of 264 possible votes.

Now on to the issue of perceived electability.

I had the sense before the voting that this would come down to a two-way contest between Todd Weiler and Randy Shumway. That was based on what I had observed of the campaigns and what I had seen and heard from various delegates. The interesting side note to that was how many people I heard speaking favorably about Tim Hawkes but wondering whether he could win.

When the results were announced my instinct that it was a two-man race was confirmed as evidenced by who the last two candidates were. When I saw the full results from all seven rounds I discovered that my impression of Tim’s widespread appeal showed up strongly in the voting. From the very first round it was actually a three-man race. Todd had the lead in every round (in fact, until the final round Randy did not receive more votes than Todd received in the first round) but the top three were always Todd, Randy, and Tim in that order. Tim had 58 votes and the fourth place candidate had 16 votes. All the candidates below Tim combined for 43 votes in the first round. The fact that many of those who liked Tim questioned whether he could get elected bore out in the phenomenon that in the first 6 rounds – until he was eliminated – Tim  gained more votes than any other candidate. By the time he was eliminated, Tim was only 4 votes shy of Randy.

Tim and Todd seemed more similar than Tim and Randy as shown by the fact that most of Tim’s votes went to Todd. That leaves me to wonder whether there were 5 of those who supported Todd as their first choice who chose Tim second based on the perception that he could not win. If so and they took that perception out of their calculations Tim would have beaten Randy for second place.

My best guess is that this phenomenon is based on widespread misunderstanding of how IRV voting works. Based on how I have heard people talk about it, it seems that many people think that their vote is counted less if it is not their top vote – they think their vote is wasted if they do not guess correctly who is going to win. They seem to instinctively feel that having a second choice vote hurts their first choice candidate rather than recognizing that their second choice candidate can never receive their support unless their first choice candidate is already eliminated which only happens if their first choice candidate was viewed less favorably than their second choice candidate.

I suspect that the voting patterns would be different if people understood that IRV gives them the opportunity to rank all the candidates rather than being dependent on how all the other voters vote if the person they first voted for is not one of the top two vote-getters. They don’t need to see how others voted in the first round before deciding where to throw their support in the second round.

Tonight is the night that county delegates will vote on who should finish the term for Dan Liljenquist. I have noticed over the weeks of campaigning – especially in the last few days – that many of the good ideas that have been promised by one candidate or another are being adopted by other candidates. These adopted positions may be talking points or they may be candidates recognizing a good idea and deciding that they are willing to adopt it on its merits (I think it is usually the latter). Regardless of their reasons there is one idea that I have decided to hold the eventual winner of this special election accountable for. Those who have made this promise already are going to be higher on my ballot than those who have not made or adopted this position.

This one key promise is that  a recognition that representation is a two-way street. Whoever wins this special election must demonstrate their understanding of that fact by proactively maintaining open lines of communication with their constituents. I wrote about this a couple of years ago and have been very happy to see multiple candidates speaking to this aspect of holding office. This must include them communicating to constituents in asynchronous ways (websites being the most widespread method for this currently) and regularly being available for synchronous public communication (open houses or townhall meetings being the methods I have seen used for this by others).

Just as those who have made this promise already will be higher on my ballot than those who do not, the first and most crucial step that the winner can do to earn my support for future terms – whether I supported him or not and whether he made this promise or not – it to keep this promise that has been made by multiple candidates in this campaign.

It’s not exactly the message you would expect to hear on election day. For those who know me it’s not a message they would ever expect to hear from me. As I drove to work this morning after casting my vote I got thinking about how destructive an uninformed vote can be. I won’t claim that there is a definable standard of what constitutes being informed. I think that is a decision that must be left to each potential voter, but for those who know they are not informed (those that can’t even see past the party label enough to recognize the party platform for example) not voting just might be your patriotic duty.

To the Voter

First, if you do not feel informed your task should be to get informed. Even if today is the election day you might be able to get informed enough to vote if you are have time to cram for the election. If you have no understanding of what the issues are it might be pretty hard but if you generally know the issues you should be able to get a feel for the candidates enough to decide if anyone deserves your support.

Second, if you do not get informed you cannot complain about what is happening – even if you voted. If you do get informed you can lobby for what you see as right but you can’t complain about who is actually making the decisions if you did not vote when they were elected.

Third, do not be afraid of a blank ballot. In other words, if none of the candidates merit your support for a particular office don’t feel that your time was wasted. In the case of municipal elections where you have the chance to vote for multiple candidates it is okay to not vote for a full suite. For example, in my area today I had the opportunity to vote for three candidates. If I had felt that there were only two candidates who had earned my support I could cast a ballot for only those two. Worst case scenario, write someone in for the final slot.

To the Activist

First, encouraging people to vote is wonderful but do not be satisfied with telling them to vote or worse, with telling them who to vote for. It’s fine to advocate for candidates that you support but always give some reason why you support them. (“Because they belong to my favored party” does not count as a reason!) Whenever you encourage people to vote always encourage them to become informed. Feel free to offer information but don’t stop encouraging them to vote if they disagree with you.

Second, encourage people to be informed before there is voting to do. Better yet, encourage them to participate. Promote attendance at caucus meetings and candidate events, not just the ballot box.

Third, for those who believe that a caucus system is subject to being overrun by fringe elements, dismantling the caucus system is not the solution to that problem. Caucuses favor those who show up. People who show up tend to be informed already or else they get informed quickly (sometimes by adopting the view of those who were already informed and sometimes by gathering information to counter the prevailing view of attendees). Primaries tend to favor those with money. That money is as likely to come from fringe elements as it is to come from mainstream voters – actually, it is more likely to come from fringe elements.

The solution to caucuses being dominated by fringe elements is to increase participation in the caucuses. There may be other tweaks worth considering, but the point is that ending the caucus system does not fix the problem.

Conclusion

Voting is our opportunity as citizens but simply casting a vote is not enough. We must take the time to become informed and to be involved. And we should encourage others to do the same – even if they disagree with us.

I have been watching the redistricting process with interest although I have not been able to be as vocal in the discussions as I might have wished. This late in the process we can see the forces at work and the concerns being raised. On top of that, I have been asked how I think the lines should be drawn (not what my map would look like so much as how I would go about drawing it). It time now to no longer be silent. Before the final vote on the maps is completed by the special legislative session I need to speak up – and so should everyone else who has not already been heard in this process.

I have been pleased with the process at times and disappointed with the results at other times. I am going to talk about what has happened in the redistricting process so far, good and bad, and also answer the question of what I think is the appropriate process for completing this decennial task.

Redistricting 2012

The redisctricting process started off on a positive note this time as the census granted us a fourth seat. That was expected but it was nice to have it official. The next positive step came as the legislature vowed to conduct the process in a transparent and participatory way. This included the fact that they made a tool available online where anyone could submit a map for consideration. Some people may complain that the promise of transparency was an illusion but if we are honest we must admit that generally speaking the process has been very open to inspection even if the development of specific maps was done without discussion.

Personally I was also excited when the House District base map was adopted because it placed me in a house district that was not straddling a county line – meaning that the county delegates in my precinct now have a say in selecting the nominee for their state representative rather than being forced to leave that responsibility with a lower number of state delegates from the precinct.

Everybody knew when this process started that the most maneuvering would come in connection with the Congressional District map. This has proven clearly to be the case. The problems associated with this map are not unique but people tend to care more about the outcome of this map than they do about some of the others. Most of the disappointing aspects of our redistricting process this year have centered on this map.

Right from the beginning while the maps for state house, senate, and school board were being developed the maneuvering for the congressional district map was already commencing. Democrats were preemptively accusing Republicans of planning to gerrymander the districts to oust Congressman Matheson. Coupled with that assertion they were vocally calling for the committee to carve out a safe democratic district in Salt Lake County so that the urban Democrats there would not feel disenfranchised by being lumped into districts with Republican dominated suburban and/or rural regions.

Despite such an ominous beginning on that important map I was very pleased when the six finalists were announced from the committee. Among the six maps were pizza slices as the Republicans tended to favor and doughnuts as the Democrats advocated for. There was one map among the finalists that was drawn by a citizen and even one map that bore no resemblance to either pizza or doughnuts.

The saddest part of the process came a few days later when the committee took one of the more political of the six finalists and incorporated the worst of both Democrat and Republican wishes to a horrid combination pizza/doughnut where half of the city of Bountiful is in the same district as St. George while carving out a safe Republican district in Utah County that is nearly surrounded by the convoluted South Davis to St. George district.

My Vantage Point

In order to put my description of the ideal redistricting process in context I feel I should share my political persuasion for any who are not already familiar with it. I am decidedly conservative. Of the two major parties I definitely identify most closely with the Republicans and would love to see Republicans in all four of our congressional seats – especially if they were serious about a sustainable fiscal policy (just being “Republican” is not good enough for me). I have been unimpressed by all the “Fair Boundaries” posturing which really amounts to an anti-Republican position despite the rhetoric of fairness. That being said I believe in the principle that everyone should get a fair say in the representation. I don’t believe that we should have four Republicans in Congress simply on the basis of a cleverly drawn map. Likewise I do not believe that we should create districts based on the current incumbents (either to protect or to oust them).

Redistricting Ideal

The ideal way to do redistricting would be to ignore any political considerations. It should be done by a trained cartographer/statistician who has no connection to the area being mapped. They should have access to the census data on population but no record of voting history or incumbency. When the number of districts is not changing the lines should follow the existing district boundaries as much as possible to maintain continuity for voters (especially if the lines had previously been determined according to these criteria). If the number of districts is changing there should be no reference to existing boundaries except possibly if one of the existing districts correlates closely to the ideal population for the new districts.

The problems in the current process are all political considerations such as how to protect or oust incumbents and what defines a community of interest.

The ideal process would be so politically agnostic that if citizens were randomly reassigned to new places of residence so that the population density was unchanged and demographics were completely altered the map would make as much sense before the reassignment as it did after. It makes sense to keep a county or city within one political subdivision where possible and to split it between as few as possible when necessary.

If we followed those criteria the best map of the six finalists was the one by David Garber. The second best of the six was the one by Steve Clark. Both of these were far and away better than the map by Rep. Sumsion that was tweaked to form the adopted base map. I am confident that the reason the Sumsion map was chosen instead was because of the other thing that those two maps have in common, they were both drawn by citizens (another political consideration) and therefore did not have a champion on the committee with as much emotional investment as Rep. Sumsion had for his map. In saying this I am not accusing Rep. Sumsion of anything nefarious or sinister. I fully expect that the author of each finalist map would consider their own map to be the best of the bunch. The problem is that these two maps, which were the best of the bunch, did not have a government official behind them to push for their adoption. I suspect that they were the first two dropped by the committee and that the Harper and Sumsion maps were the last two standing because they each incorporated the doughnut concept that the Democrats favored.

I’m a big fan of the CATO Institute and their perspective on constitutional government but no matter how much I may generally agree with them, that cannot give them a free pass to use use absolutely terrible logic to promote a position. You’ll have to take my word for it that I would dislike the use of terrible logic to promote a position I agree with but in this case Robert Levy uses this terrible logic in support of one of the worst ideas ever promoted in this nation (in my opinion – I recognize that is very subjective). With that introduction – lets break down the flawed logic in Marriage equality: religious freedom, federalism, and judicial activism.

Levy addresses what he calls “three jurisprudential issues that are central to the debate over same-sex marriage: religious freedom, federalism, and judicial activism.” Unfortunately those three jurisprudential issues are not the core of the debate over same-sex marriage. They are one step removed from the core of the debate but they are the focus of the legal wrangling because the proponents of same-sex marriage have declared the debate of the core issue, namely whether same-sex marriage is beneficial for society, to be resolved in the affirmative. This is a critical re-framing of the issue because if that core issue were truly resolved in the affirmative it becomes much easier to make the arguments in these satellite issues and thus produce the intended legal outcome for proponents.

In addressing the issue of religious freedom Levy makes his first major logical mistake with his statement that “the right to same-sex marriage is not a constraint on religious beliefs or practices.” The mistake is that this statement assumes that there is a right to same-sex marriage – an assumption that he has never even attempted to justify. The logically correct statement, in the absence of a justification for the assumption, would have been “a right to same-sex marriage would not be a constraint on religious beliefs or practices.” That statement is logically correct and would make the rest of his argument stand (waiting for some valid proof that such a right actually exists). It is true that a right to same-sex marriage need not constrain religious belief or practices but just because that is true does not provide evidence that such a right actually exists. He makes the same mistake again in his final statement that “Proposition 8, because it violates the Equal Protection Clause, cannot be allowed to stand regardless how large the majority that voted in favor.” Proposition 8 only violates the Equal Protection Clause if there is a fundamental right to marriage – which he obviously believes. The fact is that there is no right to same-sex marriage. In fact there is no right to heterosexual marriage. The fact that government recognizes any marriages is strictly extra-Constitutional. It could be argued that government should not recognize any marriages just as well as it could be argued that government should recognize any form of marriage, but it cannot be argued that there is a fundamental right to marriage.

Levy’s next logical mistake is in his argument on federalism. He correctly states that “States may not discriminate, without justification, by recognizing heterosexual but not homosexual marriages.” When he then attempts to prove that  they have no justification for this discrimination between heterosexual and homosexual relationships he makes the mistake of arguing based on the margins of the statistical norms.

No justification has been shown.  How about procreation?  No.  Infertile persons are permitted to marry even though they cannot procreate.  Child rearing?  No.  Studies show that children do just as well when raised by same-sex parents.  Promoting traditional marriage?  No.  Allowing gay marriages does not deter heterosexual marriages.  Conserving government resources?  No.  The Congressional Budget Office found that recognizing same-sex marriages would save money.  We’ll have fewer children in state institutions, lower divorce rates, and less promiscuity.

All of those statements sound true. Of course we do recognize the marriages of those who are infertile but it masks a fundamental difference between heterosexual and homosexual unions. I don’t have the statistics but I would be surprised if anything less than 80% of heterosexual unions included the raising of children as a central facet of the relationship at one time or another. Either they are raising children, or they have, or they intend to. Few heterosexual couples choose to get married unless they expect to raise children together as part of that relationship On the other hand, I would be even more surprised if more than 5% of homosexual couples ever expect that raising children will be a central feature of their relationship.

The unnamed studies he refers to showing that children raised by homosexual couples do just as well necessarily have a very small sample size and can hardly be considered a sound basis for making widespread social alterations through public policy.

While it is theoretically true that allowing same-sex marriages does not deter heterosexual marriages there are studies showing that the marriage rate in societies that allow homosexual marriage fall much further than the marriage rates in societies that recognize only heterosexual marriages.

Finally, the argument that “{t}he Congressional Budget Office found that recognizing same-sex marriages would save money.  We’ll have fewer children in state institutions, lower divorce rates, and less promiscuity” is complete hot air. Not that the Congressional Budget Office has no such finding – I have no doubt that they have exactly such a finding. The problem is again that there is no reasonable sample size to draw such a conclusion. The conclusion is based on assumptions which are nothing more than conjecture and, like some of the critical assumptions under-girding the apocalyptic fantasies that are promoted by global warming evangelists, those assumptions would doubtless prove fatally flawed if truly tested in the laboratory of reality.

The central questions are what reason we have to recognize and support marriage in society and whether recognizing same-sex marriage would be similarly beneficial to society. If recognizing marriages is only a matter of convention then it should be done away. If there are benefits then the only reason that we should provide any recognition or support for same-sex unions is if they provide like benefits to society. If we really want to lean on the Equal Protection Clause here the way to do it would be to remove benefits or add penalties for those who claim marriage (heterosexual or otherwise) and then avoid those aspects of marriage that we have deemed beneficial. For example, if we deem stability to be one of the benefits of marriage that deserve government support we could penalize those who seek divorce within a specified time frame. That would be a good step backward.

Those who worry about eroding heterosexual marriage recognize that what passes for marriage today is only a shadow of the institution that has formed the foundation of civil society for all of recorded history. Those who have done their homework generally recognize that the erosion of marriage to today’s 50% divorce rates really took off when we removed the barriers to the dissolution of marriages. If proponents of same-sex marriage would like to use sound logic, or would like to argue in favor of granting benefits to same-sex couples that do participate in the benefits (such as social stability and child-rearing) that give us reason to support heterosexual marriage, or even if they would like to argue in favor of penalizing heterosexual married couples who do not provide any benefits more than the average same-sex couple we should be happy to entertain their perspectives and try to ensure that all citizens are treated equally before the law. So long as they insist on trying to change the law simply because there are some exceptions, or simply because we have already badly damaged the institution of marriage there is no reason to budge from our unequivocal support for only the union of man and woman.

I’ve been thinking about the massive disconnect between the abysmal ratings that Congress enjoys (8% approval I recently read) and the virtual invincibility of Congressional incumbents (incumbents consistently win 90% of the elections where they seek reelection).

I realized that the apparent disconnect was not as stark as it first appeared (11 out of 12 disapproving of Congress while 9 of 10 chose to reelect their Congressional representatives). The reality is that eleven out of twelve people people disapprove of Congress but only five out of twelve vote for someone new when given their current member of Congress as an option.

The fact that six out of twelve voters disapprove of Congress and yet they consistently vote the same people back to represent them over and over again is evidence of a colossal failure on the part of the voters of this nation. They fail to recognize that Congress is working exactly as designed given the input they provide at the polls in November of each even year.

I really appreciated the 36 questions that came out of the first meeting of the GRAMA working group and wanted to offer one perspective on a first pass at answering those questions. I will say upfront that the answers provided here are subject to modification or revision based upon more detailed information. Consider this the legislative intent or deliberative process version of any final answers. Before answering the questions I wanted to make one related comment.

When I saw that Common Cause was running a full page ad in the Salt Lake Tribune today calling for the repeal of HB 477 I worried that they were positioning themselves to take some credit after it gets repealed tomorrow (and it will). As citizens we need to be careful in our consumption of information. We need to make sure that we are not fooled by the claims of any interest group. Common Cause appears to be using this situation to help them jump start the reopening of their Utah chapter. I don’t know whether that will be a good thing in the long run or not – I don’t know much about the group – but we should not confuse their core advocacy for open government with any significant work to get this repealed. It was the uproar by the citizens of Utah that brought about this legislative reversal, not the political astuteness of some interest group.

Now, on to the questions:

1. Is there any reasonable expectation of privacy for an elected official? If yes, what should be private? What should be public? Not unless the person was elected against their will. They chose to be a public figure and should expect that their actions are under public scrutiny because they have the opportunity to make public policy.
2. Does it make a difference if an elected official uses a publicly funded or a privately funded device? Not at all.
3. When are the personal notes of a government official public records? Anytime they have any connection to their office or to anything voters might consider relevant in deciding whether to continue supporting them as an officeholder.
4. What personal records of an elected official should be protected, and what should be public? Should a government official be required to release personal notes created solely for his or her own use? If so, what constitutes a personal note? Does the form matter (handwritten, diaries, appointment books, computer files)? Does it matter if those notes are or are not related to policy or government duties? This gets to the heart of this issue. I’m not sure there is a clearcut or lasting answer to this question. Some things are clear though, any record created for their personal use and not shared with others or related to policy or government duties ought to be considered private. The form of those notes only matters insofar as the form may be used to help define of the note was considered to have been shared.
5. Is there a difference between a digital conversation and a digital record? How should channels of communication like text messages, IMs, Email, video chat, Twitter DMs, Facebook Messages and voice mail be considered under the GRAMA statute? The difference between a digital conversation and a digital record is whether the medium is designed to be preserved or discarded. Digital records such as blog posts are designed to be preserved while digital conversations such as twitter are not (just see how easy it is to retrieve or search old tweets, it’s not nearly as reliable as old blog posts). The default assumption on the part of government should be to preserve where possible. Holders of government office need to realize that the more information people have the more likely they are to agree with their elected officials. Those in favor of open government already realize that officeholders tend to make reasonable official positions in direct proportion to the amount of information they share with the public.
6. How should we categorize the increasing new channels of electronic communication as they arise? Categorizing is not as important as retaining the default assumption of “preserve where possible.”
7. Who owns the records? The elected official, the elected body, or the company that provides the electronic forum? I.e. Facebook, Twitter? Who should archive these records? For formal meetings and conversations the elected body owns the record. For informal settings the elected official owns the conversation. In all cases the owner is responsible for archiving records where possible. The better they do the more prepared they will be to respond to watchdog groups who already archive anything they feel they can use.
8. Who should pay the real costs for searching and producing these records? the owner of the information should pay the costs of archiving the record while the person requesting access should pay the costs of searching and reproducing the records.
9. Does a citizen have an expectation of privacy when they contact their elected official? Only if their contact is unrelated to policy or government function.
10. Should records that contain information about a person’s health be protected? Generally yes.
11. Should personal Email addresses be classified as protected records?Yes.
12. Should a lobbyist have any expectation of privacy when they contact an elected official? No.
13. The more complicated the rules for privacy become, the more complex and expensive the legal review in responding to records requests will be. Who should pay these costs? First, the rules should be simplified as much as possible. Second, the requestor of the information should generally pay those costs of compliance.
14. Should the GRAMA statute contain intent language? If so, should the intent language be allowed to trump the actual text of the code? Intent language only opens the door for inconsistency of interpretation. If the text of the code alone produces results different than the intent of the legislature then the code should be altered. The intent should be included in the discussion when creating and debating the text of the code.
15. Currently, GRAMA does not address which party has the burden of proof on an appeal to show that the public interest in disclosing a record outweighs the record’s private or protected status. Who should bear this burden of proof? If the legislature feels that information disclosure is in the public interest they should proactively make it available. The burden of proof when someone wants protected information made public should reside with the requestor.
16. What protections should be afforded to the internal and deliberative processes in the three different branches of government? With the possible exception of judicial deliberations, the common sense of office holders should be such that their deliberations should be able to withstand public scrutiny. Likewise the public should be astute enough to figure out how much credence to give to anything that occurs during the deliberative process.
17. Is there any situation in which a deliberative process should be protected? Should private creative brainstorming play any role in the policy-making process? In the legislative and executive branches at least creative brainstorming should be part of the process but it need not be private.
18. Should the governor & legislature be allowed to discuss policy issues with staff in private before they take a public policy position? After a bill is passed or policy is made public, does this protection remain or open up retroactively? Yes, they should be allowed to have private discussions with staff before taking a public position but those discussions should be made available to public scrutiny once the position has been taken.
19. Should elected officials’ discussions with their staff be presumed to be protected or presumed to be open? Under what conditions should elected officials’ communications with staff be presumed to be private? They might have a temporary protected status while choosing a public position. The only time they should be presumed private is when those communications are related to the staffing itself rather than any government function (in other words communications about people joining or leaving the staff may be presumed to be private).
20. Is there a time-frame equation that could be useful in making information public? I.e. records presumed protected for a certain amount of time, then presumed public. it would be perfectly reasonable for a record to be presumed protected for the length of time it takes to review the record and correct any obvious mistakes.
21. Should any person or organization be given a special exemption from fees associated with a GRAMA request? No.
22. If the request requires the review or search of a large number of records, extensive redacting or other work, legal review, or technical expertise, who should be required to cover the cost of the request? The requestor.
23. Should we revise the current GRAMA policy of not charging for the first 15 minutes spent to fulfill a request? Not unless there is some agreement on a longer period for free initial effort.
24. Should the wise use of taxpayers’ funds be part of the assessment equation when assessing fees? In other words, should governments have the ability to waive fees if it is in the public’s best interest? Yes.
25. Should the audit records of the State Auditor and Legislative Auditor General be protected if their disclosure would interfere with an audit, investigation, or internal procedures? Yes.
26. Should attorneys representing a taxpayer-funded government entity have the same protections as attorneys representing private entities when creating documents or having communication about reasonably anticipated litigation? Probably.
27. Should records relating to fiscal notes on legislation be protected until the legislation has passed or the session has ended? How about protected until the legislation reaches the floor for debate or the session ends – whichever comes first.
28. What role does private communication among elected officials, constituents, and interested parties play in formulating good policy? What effect would classifying a record public or private records have on the legislative process? Private communication has no advantages in forming good policy, only in forming bad policy. When records are classified as public it serves as a deterrent to foot in mouth disease.
29. What role should our legislature’s part time status play in the classification of information? Their part time status means that whatever they do in their employment outside the legislature should receive the same protections as any other employee unless it has some connection to government function or policy.
30. Looking forward, how can we automate the legislative process of archiving records and properly making them available? That is a technical question and a technical answer is outside the scope of what I would try to address here even if I were qualified to do so.
31. How does the decentralized and geographically dispersed structure of the legislative branch affect record production and storage of records? It has little bearing in our digital age.
32. Is there a defining line or equation we could use to discern between the private life and public life of a elected official? Is there a same or similar line that would also work for a governor, citizen, activist, lobbyist, media representative or a government employee? The simple line is that before they declare their intent to run is their private life and after they are no longer a candidate or officeholder is also private life. Everything else is public life. For all others their life is public to the degree that they affect or seek to affect public policy.
33. Is there a role for confidential discussions in the deliberative process in the different branches of the government? I don’t see how this question differs from questions 16, 17, & 18.
34. Given recent advances in technology we have experienced an exponential increase in the volume of potential records available, and a concurrent increase in demand for those records. Given the reality of limited government resources, how should this workload be managed? Along with the volume and demand for records brought on by technology we also have an increase in the capacity of technology to help manage the records and consequently the workload. Is there actually a greater demand on resources or has technology already compensated for the theoretical extra burden of extra records and extra demand? If there is more burden on government resources the demand will be managed if the cost of record retrieval is paid by the requestor.
35. What technological advances do you foresee over the next 10 years that will effect how we might archive and access public records? The ability to archive and access records will probably improve at least as fast as the number and type of records increases but I can’t guess what changes the next 10 years will bring. Perhaps the legislature should be required to periodically review GRAMA and determine if changes have become warranted.
36. What further policy questions should we consider as we bring GRAMA into the next century? No further questions your honor.