Month: <span>July 2017</span>

People who want to use the power of government as a hammer – in action or in political talk – often talk about all those regulations, which both federal and state agencies have, intrusive or not, in abundance.

But they remain mysterious for many people, so it seems reasonable to take a moment to look at what they are, how they happen, and where to find them.

Federal first.

There is a compilation called the Code of Federal Regulations, but it’s cumbersome to go through. The place to go to find out what’s happening in the federal rules is the Federal Register, a daily (on weekdays) publication that includes all sorts of notices, rules and regulations prominent among them. The whole thing is almost a daily diary of what the federal government does, and it’s more than most people could read. I have an e-mail subscription to the daily table of contents (free at https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new) and use it to scan through what the agencies are up to. Links to the full text of all of it is included.

A lot of it is unexciting maintenance stuff, and meeting notices, funding awards, findings of fact and other material is mixed in. But if a rule is being created or amended or repealed, it has to – by law – show up in the Federal Register. Anyone interested in tracking what the federal agencies actually do could do worse than to start there – and it is searchable.

The states all set up rules and regulations that accompany the state laws; laws are passed by the legislature to set the outlines and general policies, and the rules and regulations are developed through the agencies, often to fill in the gaps left by the laws, often with participation – or at the request – of various interests involved with them. Business and environmental groups, for two examples, often pay close attention when rules are being crafted, and often get their message into the mix.

The states report on their regulations in different ways. Until a couple of decades ago, Idaho had no comprehensive catalogue, or publication of changes, to its rules. Now it does, via the state Department of Administration, in the office of the rules coordinator (that’s a state job). You can find it online at adminrules.idaho.gov.

That office puts out a monthly publication called the Idaho Administrative Bulletin, which includes all the changes either being made or under review. It expands and contracts in size through the year like an accordion, because the Idaho Legislature reviews all the rule changes each session, and during the legislative season rulemaking activity comes to a near halt. Other months, there’s a good deal more, especially not long after and not long before the session. In the July edition (it publishes the first Wednesday of each month), the Bulletin runs 117 pages, reflecting a mid-cycle stretch. In certain months it can become much larger; the edition from last October ran 863 pages.

That’s a lot of Idaho rule-making, but not especially unusual. The legislature’s job, when it passes laws, isn’t to try to work out every detail of how a law is supposed to work; but by the time state employees have to make it work, they have to know what to do and how to do it, in a practical and consistent way. Hence the rules.

The regulations are in other words where you really get down into the weeds, into the details of how things work. It’s not the most exciting place to prowl around, as a general rule. But if you want some real insight into how governments, federal or state (or local too, for that matter) work, this is where you can most readily get some solid insight.

Our justice system is going through a quiet revolution, away from what you often see on TV.

There you see disputes – from murder cases to divorces to civil money-claims lawsuits – hashed out in trials, in open court. You can’t blame the drama writers: It’s the entertaining way.

But if you go to watch the action at your local courthouse, you won’t see much of it, at least not out in the open. Compared to a generation ago, far more cases are settled away from trials, away from the courts, as a part of a deal-making process.

This comes to mind as I think about a new book (which – disclosure here – I helped publish), called Mediation Mechanisms, by Duff McKee, a retired fourth district judge who has mediated a couple of thousand or so cases. (The book is available at ridenbaughpress.com, at Amazon.com and elsewhere.) His book is about how mediation works, on a practical level.

He also writes, “When I began practicing law in the mid-1960s, it was a concession of weakness to be the first one to bring up the subject of settlement. This meant that the other lawyer had to raise the subject first if the case was to get settled. This led to bizarre communications between lawyers dying to discuss settlement without either one appearing to be the first one to utter the question, ‘Can’t we settle this?’”

Now things have changed, most especially the ballooning cost of litigation and crowded court calendars which led to more judges imploring lawyers to settle the dispute out of court, and to clients who can’t afford the public show. The costs, especially for such things as discovery, document research, expert assistance and more, can put the cost of civil action out of reach for most people.

These days, McKee said, “the settlement process is now primary in the minds of most litigators and most judges. Trial calendars with multiple settings are a fact of life, with cases stacked four to six deep, in the full expectation that five out of six scheduled cases will settle before trial.”

A few weeks ago I talked this over with a couple of long-established Boise lawyers, and they strongly agreed. One said that two or three decades ago lawyers at his firm would spend much of their time at or preparing for trial; so far this year, by contrast, only about one in ten attorneys there have undertaken even a single trial.

Another attorney I’ve known for several decades shifted several years ago from work in litigation and trials to almost exclusively working in mediation and arbitration.

As McKee said, “the civil case mediation has come of age in our system.”

That has its good points and some not so good. On the good side, settlements can lead to more compromises and to resolutions that can be fairer all around; many legal cases really aren’t all black and white, and many cry out for some answer that encourages each side to give a little. Many people may come out of the system less damaged.

The downside is that not all cases are like that, and our legal system should have a practical way to come to grips with right and wrong. Sometimes someone really should be put in the position of having to pay, and someone ought to be clearly vindicated.

Ironically, or maybe not, as we’ve moved into ever-sharper “win-lose” divisions in our politics and policy, we seem to be moving into a legal system edging toward thoughtful discussion and compromise.

In a state legislature of 105 people, the shift or departure of only a few key people can make a big difference. And with a couple of recent announcements, the Idaho Legislature may change in the next couple of years more than it has in upwards of a decade.

The majority leadership of the Senate and House of Representatives has been remarkably stable – static? – for a long time; the players hardly ever change. In this millennium, the Senate has had but two top leaders (pro tems) – longevity unprecedented in the Idaho Senate’s history. The position of Senate majority leader has been even more stable: Since 2003, that job has been held by Idaho Falls Senator Bart Davis. Next session, assuming his (highly likely) confirmation by the U.S. Senate, he will leave to become Idaho’s U.S. attorney.

That means a shift in Senate leadership, and depending on how that goes the majority caucus could wind up sounding more ideological than it has. Davis has been a cooler personality, and has been something of a cooling factor in the Senate. With his departure, that governor may be gone, or at least be diminished.

Last week came another major change in a legislative long-timer when Senator Shawn Keough of Sandpoint announced her legislative retirement. She is co-chair of the legislature’s budget-writing panel (the Joint Finance-Appropriations Committee), and while she’s relatively new to the chairmanship, she was co-chair for a long time before. (Keough is in her 11th term in the Senate.) With the prospective retirement next year as well of the veteran House co-chair, Maxine Bell of Jerome, the budget committee will see some significant leadership shifts in the 2019 session.

The budget panel long has been a place for the ideological and the pragmatic to do battle – there’s never a place better to do that than on a field of money. For years, and for most of its history, JFAC has been run primarily by pragmatists. (Dean Cameron, now the state director of the Department of Insurance, was for many years Keough’s predecessor at Senate Finance.) But while the chairmanship of JFAC usually goes to the next most senior member, you can never be entirely sure of that.

And chairmanships, like other committee memberships, are determined by the Senate and House leaders. The departure of Davis in the Senate could unleash some pent-up agitation and frustration, and the possibility of serious leadership contests after the next election, of a sort more intense than the Statehouse has seen in quite a few years, is a live possibility.

And there’s one more change coming around the bend: A new Idaho governor, after a dozen years.

Probably a Brad Little governorship would not in itself lead to drastic changes at the Legislature. However, a win by U.S. Representative Raul Labrador (himself a former Idaho House member) or businessman Tommy Ahlquist could have all kinds of impacts. If one of them wins the Republican nomination many Republicans, including many legislative Republicans, are likely to read that as an overturning of the GOP establishment. And that in turn could accelerate leadership challenges and contests unlike any Idaho has seen for a while.

Things are shaking up.

Not always are federal requests spooky overreaches with eerie implications for actual Americans. But this new one sure was.

That is the request from the Presidential Advisory Commission on Election Integrity, the task force established by President Donald Trump and headed by contentious Kansas Secretary of State Kris Kobach.

The commission’s formal purpose is to “study the registration and voting processes used in Federal elections,” which on its face seems peculiar, since these are state processes, not federal, and in general they have been in use for many years, operating successfully. Idaho, which with the rarest exceptions has had smoothly-run elections for generations, generally is a typical example. Where problems have arisen, they’ve been very small one-off situations.

The more exact purpose was in looking for “those vulnerabilities in voting systems and practices used for Federal elections that could lead to improper voter registrations and improper voting, including fraudulent voter registrations and fraudulent voting.” Since the levels of voter fraud reported in this entire country over the last several generations have been microscopic, you have to wonder where this would be headed.

The task force has asked for a vast array of data, down to partial Social Security numbers and criminal records, about the voters in all 50 states. Officials from nearly all of the states have, to a partial or fuller degree, told the commission to jump in a lake.

Idaho Secretary of State Lawerence Denney was more genteel than that, but his response was in line with what you might expect from any state official, much less an official in a state where the top elected honchos have made careers out of talking about federal overreach.

Some information asked for, he pointed out in a statement, is explicitly public record and often is distributed to political parties and others as a matter of course. There would be no basis for denying it to the commission (or to you or me), if it put in a public records request.

But his office’s statement goes on: “While additional information is requested in the letter (such as driver’s license and the last 4 of a voter’s social security number), that information is NOT considered public and Secretary Denney could not be compelled, outside of a specific court order detailing the need for and intended use of such data, to provide that information under Idaho Public Records statutes.”

The voter information being asked for includes dates of birth, part of the Social Security numbers, active or inactive status, felony convictions and voter registration elsewhere.

How exactly would all that (and more, if used in conjunction with the immense corporate and other databases now available) be used? What sort of massive national database of voters would be compiled – and for what purpose?

State Representative John Gannon raised some of the followup questions in an opinion piece last week: “What are they going to do with this data? How are they going to track those who move, and what right does the federal government have to even do that? Are federal investigators going to contact landlords, look at assessor records and interrogate voters regarding residences in order to determine ‘vulnerabilities’”?

If you’re among the many Idahoans who’ve thought about federal intrusiveness in the past, think about that.