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Bill Britt

Finding States Rights in the Constitution

Bill Britt

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By Bill Britt
Alabama Political Reporter

MONTGOMERY – In the next session of the Alabama Legislature expect to hear a great deal about state’s rights and Alabama values. In late summer, House Speaker Mike Hubbard (R-Auburn) commissioned a state’s rights and Alabama values commission to study conservative social issues and 10th Amendment guarantees.

It has been said that the commission was in part a result of dissatisfaction expressed by freshmen GOP who met after the 2012 session at Lake Guntersville to discuss the need for a more conservative agenda in the state legislature.

According to a report by Dana Beyerle, the commission is tasked with listening to “typical Alabamians” to ensure that conservative social issues and 10th Amendment guarantees are given prominent attention in the 2013 legislative session, which begins in February.

Those issues include illegal immigration, the Affordable Care Act, religious liberties, anti-abortion initiatives, taxpayer rights and Second Amendment protections. These are issues that will be presented to our (GOP) caucus for consideration, Hubbard said.

Most Alabamians embrace a more conservative agenda than many outside its borders, but the mostly male, all white makeup of the Speaker’s commission has caused some worries.

Likewise, the use of the words state’s rights, at least for black Alabamians, is reminiscent of the racist past. Speaker Hubbard has said it doesn’t have anything to do with the old connotation. Words do have meanings but sometimes a phrase does change meaning over time.

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The rights of states has been argued many times dating back to the founding of our republic, but the idea at least in words that the states have rights was never entered into the nation’s constitution.

Those who prefer the original language of the US Constitution would be hard pressed to find the words right or rights ever used in connection with government. A careful reading to the US Constitution reveals no mention of the words rights as referring to the Federal government or the states themselves. The words “right” or “rights” do appear in the Constitution and Amendments a total of 15 times, but never in association with “state.” The words “right” or “rights” are used 13 times to guarantee rights of the people while restricting power of government to infringe them.

Governments, state and federal, do not have rights according to the constitution what they have is power. Individuals have rights, the government has powers that are granted by the consent of the people.
The 10th Amendment contains one of 36 mentions in the Constitution of “power” or “powers,” reserved to the states or to the people but those are not explicitly enumerated. In simple terms, whatever power the federal government does not have is left in the hands of the state.

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A good example of such powers is that of immigration.  Federal courts have ruled the the states have no rights concerning immigration, because they don’t exist. However, the federal government has power over all immigration. This was a costly lesson learned by Alabama over the last several years, when HB56 and its successor was struck down by the federal courts. Many supporters of HB56 claimed victory but it wasn’t a victory but a talking point thought up by communications specialist and repeated by their bosses.  The “Ihre papiere bitte” portion of the law was not a win for state’s rights. This is not to say that there is not a need for immigration enforcement neither is this an endorsement of the federal government’s lack of enforcement of its own policies, it simply shows states to do not have power over immigration.

Alabama with a 4 percent Hispanic population was never under the pressure that a state like Arizona faced but it was a good political point during the 2010 elections and so it became a rallying cry to gin-up the GOP base, especially those in the Tea Party.

Mr. Hubbard, says that the Affordable Care Act is an issue for his state’s rights and Alabama values commission, but with the Supreme Court ruling and the reelection of Obama even John Boehner has declared ACA as the law of the land.

Alabama recently passed an amendment to block ACA but this too is just political posturing. The only power the states have is how they will implement portions of ACA, not if.

According to a post by Blaine Galliher, Governor Bentley has appointed a tribunal of lawyers with expertise in constitutional law and this health care bill to advise him on the options our state has as it relates to this legislation.

So, the governor is calling on a cadre of lawyers to continue the fight against the ACA. According to Galliher’s meme Governor Bentley with 20 other governors are going to do what, defy federal law? One has to wonder what the governors are thinking, a law passed by the two houses of Congress signed by the President and upheld by the Supreme Court in this universe means it is a law.

It is logical to ask, what is a state that is hovering on the brink of bankruptcy doing by spending state dollars the fight the law of the land. Very few avenues seem open but perhaps the governor’s coalition could try to pass an amendment to the US Constitution. Secession is not an option with a very successful track record.

Governor Bentley may despise the ACA overall but he has been wanting to move forward with the health exchange portion for well over a year. Just this summer the Governor held a meeting at which he proposed spending over $50 million in federal dollars to build the exchange and its infrastructure.

Utah built its healthcare exchange for under a million dollars, but Alabama wants to use the maximum in federal dollars because it will allow the state to modernize it technology infrastructure using federally-supplied funds.

The hunger for federal dollars is certainly one of the many ways that states have surrendered power to Washington, DC. In the case of the ACA, Chief Justice John Roberts, said that holding a gun to the states was a no, no, but Alabama will happily except the federal money, while cursing the giver.

Another big discussion on the horizon will be the expansion of Medicaid something that the state’s rights commission and many Alabamians will be allied against. However, the expansion of Medicaid will happen in Alabama because of state’s desire for federal dollars and the special interest that will benefit from the growth of the program.

Hubbard said he chose to include the term state’s rights because he says conservative states are battling Washington. We are the last line of defense against the federal government.

I would like to see a day when states have more sovereignty over their own affairs. I would be in favor of a loose confederacy of states but for over a century, states have kowtowed to Washington for money.
The battle then would seem lost until the core reason as to why the states have so little power against the federal government is addressed. To find the answer, the commission needs to look no further than the state’s willingness to spend every dime the federal government is willing to give.

It is also important to address situations with the true firepower of the Constitution. Individuals have rights, not governments and the government should only have the power that is given by the consent of the governed.

Sadly, many in our state follow slogans and not well thought out policies. The state needs more than commissions with catchy names, it need sound policy thinkers whose agenda is good government not politics.

House Majority Leader Micky Hammon (R-Decatur) serves as chairman of the States Rights and Alabama Values Commission, according to the report by Beyerle, Hammon said, “We wanted to get input from the Tea Party and other people who are interested. We’re just looking for input from the people out there who are our base and typical Alabamians, instead of us deciding what this is going to be.”

With a population of around 70 percent white and 26 percent black, 4 percent Hispanic and with almost a million people living below the poverty level one has to wonder who is a typical Alabamian.

When addressing state’s powers it is important to recognize that those powers cut both ways. If Alabama wants its so-called rights, then it should also expect those state’s that want gun control, gay marriage and abortion-on-demanded to have their rights as well.

It is a slippery slope because one man’s state’s rights is another one’s abomination. Words do have meaning, the word “fair” used to mean to be just or equal, today it is used in a phrases like “That is not fair” to mean “I don’t like that.”

Perhaps that is now the new meaning of state’s rights.

Bill Britt is editor-in-chief at the Alabama Political Reporter and host of The Voice of Alabama Politics. You can email him at [email protected] or follow him on Twitter.

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Bill Britt

Opinion | Deception, subtlety and the wholesale destruction of current ethics laws mark proposed rewrite

Bill Britt

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Legislation proposed by Rep. Mike Ball, R-Madison, would radically alter the existing State Ethics Act rendering it useless as an effective tool to regulate the behavior of public officials, much less prosecute a rouge lawmaker.

Testifying at a pre-trial hearing in the criminal case against then-Speaker of the House Mike Hubbard in April 2015, Ball said the ethics laws needed amending to avoid prosecutions like Hubbard’s in the future.

If HB179 becomes law, Ball will have fulfilled the words he spoke at the Lee County Court House, where Hubbard was tried and convicted.

As House Ethics Committee Chair, Ball has sought to change the State’s Act since Hubbard was indicted.

Ball’s bill is subtly written from an enforcement and trial perspective to neuter the law.

Words are added, deleted, and meanings changed in ways that might look harmless but actually open the door for the kind of corruption Republicans vowed to change in 2010, when they passed the toughness in the nation’s ethics laws.

Beyond changes that would allow for general corruption to go unpunished, Ball’s legislation would strip the Attorney General and district attorneys of their power to prosecute anyone who violates the ethics laws without first securing approval from the State Ethics Commission.

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All prosecution of any public official would first have to be approved by the Ethics Commission, a group that has repeatedly shown that it bends its decisions according to the prevailing political winds.

HB179 reads in part, “This bill would prohibit the Attorney General or a district attorney from presenting a suspected ethics violation by an individual subject to the code of ethics, other than a member or employee of the commission, to a grand jury without a referral by the commission.”

In other words, Ball would have a politically-appointed commission decide if law-enforcement agencies can seek indictments against wrongdoers.

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Neither the Attorney General or a county district attorney can even impanel a grand jury in an ethics probe without the commission first finding probable cause.

Some of Ball’s alterations come in the form of removing whole sections of the law under the guise of redefining words, like “a thing of value” or “widely attended event.”

An example of how Ball’s legislation plays with the law is under the section of code, which defines a family member of a public official. Currently, a family member is “[t]he spouse, a dependent, an adult child and his or her spouse, a parent, a spouse’s parents, a sibling and his or her spouse, of the public official.” Ball changes it so it only includes a spouse and a dependent. That means that a public official may act to enrich his adult children, a parent, an in-law a brother, or a sister. These small but destructive alterations to the law are at the heart of Ball’s legislation.

Some loopholes are so extensive that a sitting legislator could be paid by a city or county governmental economic development entity and still seat in the Legislature voting on bills that might directly affect his consulting client.

Out-of-state junkets make a comeback as do several other goodies lawmakers have been desiring.

It seems Republicans want to cash in on the rewards of office like Democrats did once upon a time.

One thing is clear, Ball didn’t write the bill, but whoever did knew precisely what they were doing and were probably paid handsomely for their efforts.

There are so many cunningly deceptive changes to the ethics laws in Ball’s bill as to make it impossible to catch them all without days of intense study—and perhaps a team of lawyers.

Ball, one of Hubbard’s most an ardent defenders has said Hubbard’s indictment and conviction was a political witch hunt. He has said he wants to rewrite the ethics laws to save future Hubbards; it now looks as if he has.

 

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Bill Britt

Opinion | PCI’s billion dollar plan raises questions

Bill Britt

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Over the last few months, the Poarch Band of Creek Indians has flooded the state with an advertising campaign touting a billion-dollar package labeled “Winning for Alabama.”

How the plan benefits Alabama is a fuzzy moving target, but there are many advantages for the tribe.

Beyond giving PCI a monopoly over Las Vegas-style gaming, it also cements PCI’s tribal status.

Since 2009, PCI and other tribes federally recognized after 1934, have lobbied Congress for a “Carcieri fix,” to guarantee they are safe from losing federal recognition and with it the right to operate tribal gaming.

In Carcieri v. Salazar, 555 U.S. 379 (2009), the Supreme Court of the United States ruled that the phrase of tribes “now under Federal jurisdiction” in the Indian Reorganization Act of 1934, referred only to those tribes that were federally recognized when the act was passed. PCI wasn’t recognized until 1984.

A compact with the state would end the threat  that hangs over PCI and its billion-dollar casino empire in Alabama.

Over the past several years, U.S. Congressman Bradley Byrne—who is now running for Senate—has pushed legislation in the U.S. House of Representatives to protect the tribe from any challenges under the Carcieri ruling. Byrne’s efforts have been unsuccessful due to resistance from Alabama’s senior U.S. Senator Richard Shelby.

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Poarch Band of Creek Indians face uncertainty

Byrne saw his 2018 legislation falter when Shelby made it known the bill would not get a hearing in the Senate.

At the time, APR contacted Shelby’s office for comment, “Senator Shelby does not support the bill and has no plans to do so in the future,” wrote Shelby’s communications director, Blair Taylor. Likewise, APR reached out to Gov. Kay Ivey’s office where then-spokesperson, Daniel Sparkman, told APR, “Governor Ivey has no plans to write such a letter,” encouraging Senator Shelby to support a Land Reaffirmation Act.

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A compact with the state would likely end any further concerns over a Carcieri fix.

While PCI is courting voters and lawmakers, ultimately, it is Gov. Ivey, who has the authority to negotiate a compact with the tribe. At this juncture, Ivey’s thinking isn’t known, but given her history, she will look hard and long at any gaming plan that requires her signature to enter into a compact with PCI.

PCI’s proposal raises several questions, not the least of which are “can the state give the tribe a monopoly over table gaming, and how much money will the state actually receive from PCI’s plan?”

The proposal is vague in specifics and the math is hazy  at best, but according to PCI’s website and promotional materials, the plan includes: “$725 Million in combined license and compact fees from existing properties and two new locations, PLUS $350 Million in projected tax revenue and revenue share from gaming, including sportsbook and table games, PLUS.”

For the one-time payment and projected future tax revenue, PCI wants the state to enter into a compact with the tribe and also give them exclusive rights over table gaming throughout the state. That is giving a lot for little return when in fact a state lottery with all the bells and whistles could produce around $400 million in tax revenue for the state without giving anyone a monopoly.

Opinion | There’s a better gambling deal to be made

All tribal gaming falls under the Indian Gaming Regulatory Act of 1988, which lists the different categories of gambling permitted by tribal entities.

Currently, PCI operates class II gaming in Alabama.

Class II gaming, according to IGRA, are:

“Bingo, pull-tabs and other similar games, including non-banking card games not prohibited by state law.”

IGRA states that PCI can only offer games that are “not prohibited by state law.”

The Alabama Supreme Court has ruled that electronic bingo machines are illegal. However, PCI offers electronic bingo at its facilities in Atmore, Montgomery and Wetumpka.

IGRA also states, “Expressly excluded from Class II gaming are banking card games, such as blackjack or slot machines of any kind.”

To offer blackjack, roulette, or other table games, PCI would need a compact with the state, which must be negotiated by the state’s governor, which presently is Ivey.

Class III games are according to IGRA: “All forms of gaming that are not included under Class I or Class II, such as blackjack and slot machines.”

Other provisions of Class III conclude that “the games are located in a state that permits gaming for any purpose by any person.”

This section of IGRA would seem to prevent the state from granting PCI exclusivity over Class III Las Vegas-style gaming, but this is a question that will be answered by attorneys.

PCI has done very well since it became a de facto gaming monopoly in the state as a result of then-Gov. Bob Riley’s bingo wars.

Year after year, PCI and its Republican allies in the state Legislature have killed any lottery or gaming plans that threatened the tribe’s monopoly.

The billion-dollar plan is seen as tempting to some lawmakers, but its success or failure rests with Gov. Ivey, who is responsible if a compact with the tribe is to be negotiated.

Many unanswered questions must be considered before the state should entertain PCI’s billion-dollar plan; perhaps most importantly, how does Carcieri v. Salazar affect the tribe’s federal standing and what are the benefits for the state?

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Bill Britt

Opinion | PCI supported President Trump’s rivals but want state Republican to do their bidding

Bill Britt

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In 2016, Alabamians overwhelmingly supported Donald J. Trump for president. The Poarch Band of Creek Indians, however, put the majority of their money behind his rival, Hillary Rodham Clinton.

PCI gave Clinton $150,000 in 2016, but only $25,000 to Trump. Likewise, in 2012, PCI contributed $135,000 to Barack Obama. In both elections, the Poarch Creeks sided with Trump’s nemeses.

Even after Clinton’s loss, PCI donated $203,400 to the DNC Services Corp./Dem. National Committee.

In fact, of the 13 most substantial contributions made by the tribe in federal elections over the last several years, eleven donations went to Democrat candidates or organizations while only two went to Republican causes.

If money is the mother’s milk of politics, then PCI’s top donations are nourishing Democrats nationally and starving Republicans.

In a pro-Trump state, the Poarch Creeks —who backed Hillary for president—are asking Republican lawmakers to give them a state-sanctioned monopoly over gaming.

Principled Republicans might see a problem with giving so much power to a group whose money goes to candidates with values so diametrically opposed to their own.

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Currently, PCI gives generously to Alabama Republicans, but once those conservative lawmakers turn over gambling in the state to the tribe, is it not possible that they will then switch back to their political roots and support Clinton-type Democrats for state offices?

PCI stokes Alabama Republicans for now, but what happens when they no longer need them to do their bidding?

Just last year, PCI contributed to the Democratic Congressional Campaign Committee and the Democratic Senatorial Campaign Committee.

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Money from PCI to the DSCC will go to giving Chuck Schumer control over the U.S. Senate while their support for DCCC will increase Democrats in the House.

“DCCC is the only political committee in the country whose principal mission is to support Democratic House candidates every step of the way,” according to the group’s website.

Do Alabama Republicans not realize that PCI is supporting the very group that elected candidates they claim to despise like AOC and the squad?

In 2018, DCCC’s campaign contributions flipped the U.S. House of Representatives, giving control of the chamber to Nancy Pelosi. In return, Pelosi led House Democrats to impeach President Trump.

Isn’t it hypocritical to loathe Democrats on the one hand while accepting donations from their patrons with the other?

Of PCI’s largest contributions, only two went to Republicans, one was in 2014, to the Congressional Leadership Fund and the other was to John Boehner for Speaker in 2015.

State Republicans howl against Anti-Trump and Pro Socialist Democrats but line-up to support PCI which has given maximum donations to Nancy Pelosi.

Perhaps PCI gave Trump chump change because, as a businessman casino owner, he dared point out the unfair advantages tribal gaming has over private operators. But maybe they are afraid the Trump administration will enforce the law which says PCI can’t operate any games that are illegal in the state.

Obama didn’t enforce the law and Clinton surely would not have. Maybe Trump will.

PCI, for now, is cozy with state Republicans, but their national support for Democrats should serve as a warning that things can change.

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Bill Britt

Opinion | MLK Day: A time for change

Bill Britt

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Today, as the nation celebrates MLK Day, Alabama still tacks Robert E. Lee onto its observances. But it’s time to end that practice as a new generation deserves to see a better Alabama.

Alabama Code, Title 1. General Provisions § 1-3-8 enumerates the state’s legal public holidays, which lists the third Monday in January as an observance for Martin Luther King Jr., and also Robert E. Lee.

How long will our state’s leaders cling to the past? Isn’t it time to put away the false equivalency between King and Lee?

Both men were flawed, but while Lee’s reputation has diminished with time, King’s has grown.

Lee may have once represented a proud South, but today he is seen as a symbol of bloody slavery.

Over time, King’s legacy has flourished and now stands as a beacon of hope to millions, not just in the United States, but around the world.

In her 2019 Inaugural Address, Gov. Kay Ivey acknowledged, “Thankfully, the Alabama we live in today – the Alabama we love – has changed with the times and, in most instances, this change has been for the better.

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But we would be less than honest with each other if we did not acknowledge that change has not always come easily. Standing here on Dexter Avenue, we are reminded of two different chapters in Alabama history: a time when the Civil War raged and 90 years later when the Civil Rights movement was inspired.

It is important for all of us to acknowledge our past; after all, it was at a pulpit just down the street that Doctor Martin Luther King Junior so powerfully taught us how to confront struggles with honesty, courage, and love.

Having learned from the past, let’s now turn our focus to the future, which is filled with so much hope and opportunity.”

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Sadly, some in our state can’t admit Alabama’s  past, much less let go of the legacies that still haunt the state.

That Lee shares the day with King is a relic from our not so honorable history.

Almost immediately after King’s assassination in 1968, there were calls for a holiday commemorating his January 15 birthday, a struggle that would be fraught with conflict for 15 years.

President Ronald Reagan signed the bill making MLK Day a national holiday on November 2, 1983, but even he wasn’t convinced that it was best for the nation as he said a King holiday was “based on an image, not reality,” according to a letter he wrote to former Gov. Meldrim Thomson Jr. of New Hampshire.

After Reagan’s remarks were made public, he called King’s widow, Coretta Scott King, to apologize for any misunderstanding about his comment, according to a 1983 report by the New York Times.

Up until the passage of MLK Day legislation, North Carolina U.S. Senator Jesse Helms railed against the measure, accusing King of being a Communist sympathizer. Helms threatened to filibuster, tried to open King’s sealed FBI files and estimated that the cost of a new national holiday would be $12 billion in lost productivity.

Still, today, even in the halls of the Alabama State House, Helms’ argument is still being made.

Efforts to erect a monument to King on Dexter avenue are fought with the same rhetoric and passion that fueled Helms, except today, they are mostly in whispers-tones and code-speaks.

George Washington, Thomas Jefferson, Alexander Hamilton and a host of the founding generation’s notables were slave owners and men with questionable private lives. Still, nevertheless, they are celebrated for their accomplishments, not chased for their failings.

Turbulent water running under the bridge that divides our nation along racial lines is stirred by those who would convince us that they are deep, but they are not deep only muddy making us fear to cross.

King’s legacy is the embodiment of nonviolent activism for civil rights, which has been replicated on nearly every continent around the globe.

After the King Holiday Bill was signed, Coretta Scott King said, “This is not a black holiday; it is a people’s holiday.”

It is time to change because MLK Day cannot be a people’s holiday in Alabama, as long as it’s a Lee holiday, too.

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