Month: <span>February 2017</span>

Last May, I wrote about a report from the Wilderness Society contending that since statehood, 41 percent of the “endowment” lands Idaho originally received from the federal government had been sold.

A couple of weeks later, the Department of Lands wrote to take issue with the Society’s numbers, especially with the 41 percent figure – the correct figure would have been about a third. Since the reply was widely disseminated in news stories at the time, and since the numbers differ largely on the relatively technical basis of what you choose to include or not, I didn’t return to it in a later column because whether the amount was 41 percent or 33 percent, it still was a lot. The Society’s basic point, that a lot of land had been sold off, appeared to remain, though no fine point was put on its implications.

Last week, another shoe dropped, this one less about the numbers than about the meaning of the transactions. This came in the form of new research from the Society and the Idaho Conservation League that, in their words, “reveal what appear to be widespread violations of the Idaho constitutional limit on how much land the State Land Board can sell to private parties. The new findings further deflate claims by public land takeover advocates that Idaho citizens won’t be locked out of their forests and recreation lands if they are given to the state. The sales in question span nearly a century, from statehood in 1890 until sales in the 1980s.”

That makes them pertinent indeed. As the groups also pointed out, “The Idaho Legislature is also considering a measure (Senate Bill 1065) from Senator Steve Vick (R-Dalton Gardens) that requires all state agencies to prioritize privatization of state lands.”

And the response this time from the Department of Lands was a little different. Director Tom Schultz released a statement saying, “At this time I am not prepared to concur with or dispute the conclusions reached by the Wilderness Society. Even though no discrepancies have been identified over the past 30 years, I intend to hire an independent auditor to review IDL’s records and advise the Land Board on its findings. I understand that the analysis by the Wilderness Society may raise concerns about land sales, and want to assure Idahoans that there are measures in place today to ensure that individuals and businesses do not purchase lands exceeding constitutional limitations.”

(The department did point out that there appear to have been no instances of such sales in at least the last 30 years or so.)

Because it had to fulfill detailed information requests from the environmental groups some time ago, the department has been aware for a while this question has been pursued. If it had an easy response to the allegation, it would have offered it. By assigning the case to an independent auditor, the declaration of problematic sales (assuming the groups’ research is on track) would come from a non-state employee, which would be a little easier for everyone on the state side to swallow.

What this suggests is that the allegation, of regular extra-constitutional land sales to private parties across much of Idaho’s history, has a good chance of holding up.

What if anything will be done about it is another question, further down the road.

After describing in a recent column annoying cell phone service gaps in the Idaho Statehouse, the Lewiston Tribune’s William Spence remarked how that serves as a metaphor for this:

“I can’t count the number of hearings I’ve attended where the testimony is skewed entirely one way or the other and the committee votes the opposite way.”

In my days covering the legislature years ago, that happened seldom. If the testimony was strongly weighted in one direction, that ordinarily was how the committee would vote. Apparently not so much these days.

I crowdsourced the question of whether Spence was right. The crowd told me that he was.

The legislative examples cited most were guns on campus, Medicaid expansion and “add the words.” Large crowds showed in support of the the latter two and against the first; few people countered; the committees involved wasted little time siding with the few. (They did at least, it should be said, hear out the public first.)

Holli Woodings, a former state representative, offered: “Guns on campus. I listened to an entire day of testimony against it, and still was in the committee minority voting nay. There were two, maybe three folks who testified in favor, and dozens against, including law enforcement, educators, students, administration, and others who actually had a stake.” The proposal won approval.

Activist Donna Yule: “Happens all the time in the Idaho statehouse. It’s extremely frustrating to all the people who take the time to testify. I’ve come to the conclusion that most of the GOP Chairs of the committees already have their minds made up, and they care more about their base voters than the people of Idaho. But I still think the testimony matters. Even though they ignore the people testifying, it still makes them uncomfortable, and maybe eventually the people will get angry enough to rise up against them and vote in some new people who WILL listen.”

Do your representatives listen? Actually listen, or just sit there with minds made up?

Idaho’s United States senators have been barraged with comments and protesters in recent weeks, but there’s been little response from them.

After Senator Mike Crapo’s office rebuffed media requests to find out how Idahoans calling in on Education Secretary-designate Betsy DeVos stood, a staffer let slip to the Payette County commissioners: “DeVos is the one we’re hearing the most about … and I think 95 percent are against her.” Crapo, and fellow Idaho Senator Jim Risch, voted for DeVos’ confirmation, and said little or nothing about what they were hearing from back home.

Okay. It’s possible not every protesting call or visit came from a constituent (though I’d bet the great bulk of them did). It isn’t the job of a representative to vote in the popular direction every time. Yes, it’s those in opposition who usually are most motivated to step up, more than those in support. Sometimes the majority is wrong; it happens.

But when this kind of dissonance happens as often as it seems to (and yes, Idaho is not alone in this), something is wrong.

In saying this, I’m looking most directly at the voters. Are you not being listened to? Are your concerns not being met? Are your representatives not doing what you want them to do?

If you think so, then: Are you getting organized and out to the polls? That’s the message that will be heard without a doubt.

A century ago, Idaho was a legislative leader in passing a law that would be adopted not long after by almost half the states: The criminal syndicalism act. It’s a slice of history worth reviewing.

The background is this: In the teens the activist and relatively radical edge of the labor movement was the Industrial Workers of the World (members were called “wobblies”). Its success and scope was actually limited, but it was well known regionally and nationally: Anti-union forces talked them up a great deal in fearful tones. In Idaho they mostly were active in the northern lumber camps, and organizers appeared in southern Idaho farms. Their main tool was the strike (in some places, mostly outside Idaho, things sometimes went further), though they were accused of much more. Their demands were for such workers’ protections as an eight-hour day and more worker safety, but their rhetoric was strident enough that they conflicted with other union groups as much as they did businesses.

There was a genuine radical connection, and some IWW leaders really were close to then-emergent Communist Party organizations. As World War I approached, the organization was also accused of being in league with the kaiser. (You know, whoever was handy.) Most of the people in the field were simply active union members, but across much of the state, panic of the unknown and fear of the group was exploding. One academic study of the period noted that “the economic and social problem became an … IWW problem and led to an attack on unpopular doctrines and groups.”

With memories of Silver Valley mine worker violence then not quite a generation in the past, Idaho’s leaders were quick to line up against the wobblies. And in March 1917 the legislature passed a law intended to get at them. This was the syndicalism act, which sought to ban “the doctrine which advocates crime, sabotage, violence, or other unlawful methods of terrorism as a means of accomplishing industrial or political reform.”

You’ll notice how un-specific the language is. That was considered a feature, not a bug, because the broad-brush accusations could easily be thrown around, and were. The point here is that purpose of the law had little to do with concerns about overthrowing the government (which already was covered by laws against treason, sedition and the like); that was the fig leaf. The real point was in suppressing the IWW. (The organization, much smaller and less active than it once was, still exists and is based in Chicago.)

The cover came off a few years later when Idaho legislators passed anti-union legislation criminalizing such acts as “work done in an improper manner, slack work, waste of property, and loitering at work.” And the anti-syndicalism law was eventually weakened by court decisions and later legislation. But in 1917 the measure passed because a relatively small group that actually affected Idaho at the edges was blown up into a terrible threat to decent society. It was made to seem so terrible that freedom of speech took a battering. (That battering would get much worse on a national level at the nation went to war.) For its part, the IWW declined in the twenties for its own organizational reasons, and never recovered.

Doesn’t take much for us to react badly; people are more easily manipulated than they would ever like to believe.

That’s no less true today than it was a century ago. It’s as simple as this: When someone points a finger and blames “them” for our problems, ask first what agendas are really involved. In the politics of today no less than back then, it’s a critical piece of intelligent self-government.

It may come as a shock to Idaho (and many other state) legislators, but their purview is limited to the borders carved out at statehood. They have a great deal of authority inside, and very little out.

You can pick up the nature of some of these limits, and the narrow ways they can be expanded, in two new House bills, 59 and 65.

HB 65, from Representative Paul Shepherd, R-Riggins, got the bigger headline splash, because its reach would be so broad if it passes (wouldn’t bet against it) and survives a legal challenge (extremely unlikely).

Here’s the key language: “The Idaho Legislature hereby declares that the state of Idaho, on behalf of its citizens, is the final arbiter of whether an act of Congress, a federal regulation or a court decision is unconstitutional and may declare that the federal laws, regulations or court decisions are not authorized by the Constitution of the United States and violate its meaning and intent, and further, are null, void and of no effect regarding any Idaho citizen residing within the borders of the state of Idaho.”

The shorthand for this is “nullification” – a unilateral declaration by the state that if we here (well, actually, if the legislature here) don’t like it, it doesn’t apply to us. That’s just a half-step away from secession from the union, a question pretty much resolved a century and a half ago.

A brand new legislator, Representative Randy Armstrong, R-Inkom, inquired in the meeting where the bill was presented: “Do we have that right as legislators or as citizens, to be able to declare something unconstitutional? Isn’t that the area judges are supposed to rule on? How do we earn the position to declare something constitutional or unconstitutional?” Well, there you are. We do have courts whose job it is to rule on constitutionality; that’s a court function, not legislative. The courts also get to parse when federal rulings apply to the states (mostly, but not always). A legislature can declare it has super-powers, but they won’t last long in a real challenge.

Is the legislature completely confined to state boundaries in its impact? Not necessarily.

House Bill 59, proposed by Representatives Ilana Rubel and John McCrostie, both D-Boise, would have Idaho join an interstate compact in which – if all 50 joined – each state would commit that their electoral college representatives would vote for whoever won the national popular vote. Such a proposal coming in this season after last year’s presidential carries a partisan tinge, but the idea has been around for many years, has been adopted by some states and others are considering it this year. (You can see more about it at http://www.nationalpopularvote.com/). Both red and blue states have entered into it.

The odds for passage in Idaho are not good, and we can’t completely be sure what a court will make of the idea. But there’s a good case for why it may be upheld. The federal constitution (in Article II) says “Each state shall appoint, in such Manner as the Legislature thereof shall direct, a number of Electors,” and generally leaves the process in the hands of the legislatures. It would effect a change in an area where states seem to have full discretion to act.

For both bills, as a movie start once suggested, it’s a matter of knowing your limits.