Crossposted from Brian's Utah Weblog, http://www.57wild.com.
Utah Republicans think their majority in the legislature is so secure, they have bought the domain name www.utahhousemajority.com for their weblog. Even worse for Democrats, nobody is laughing.
Even the Democratic party and its campaign committees set goals like former Utah Democratic Party Chair Donald Dunn's ambition last year to win enough seats to sustain a governor's veto. Only one third plus one seat is required to sustain a veto and we're still two Senate seats or seven House seats short.
The purpose of politics is to make the world a better place. To justify their existence, and—I hope—justify expansion of their numbers, Utah's 19 House Democrats (of 75 seats) and 8 Senate Democrats (of 29) need to make a difference. And that difference must be more than strengthening the governor's veto power.
This year we grew Utah's economy after several years of shrinking and the legislature had some extra money to spend. Democrats hoped to roll back school funding cuts, reduce class sizes and give teachers a small raise beyond the cost of health insurance. But legislative Republicans simply ignored any budget alternative that spent money on schools instead putting almost all into roads. Now our schools are the poorest in the nation. Democrats can stand up for Utah families, but without the numbers to force a compromise, it is hard to build a record of success.
So what good is it to elect a few more Democrats into the legislative minority? That is where the Legislative Minority Project begins. I collected all the recorded votes in the past three legislative general sessions and found all the votes where Democrats held the margin of success or failure.
When Republicans are divided, it is often possible for Democrats to determine the outcome by sticking together. This will be a series of posts where I examine all the opportunities legislative Democrats have had and look forward to what we can do better in the future, especially when that future includes more Democrats.
Today I want to start with two votes that inspired this project, one success and one failure.
The Success: Fighting for public education
H.B. 39 of 2005 was the latest tuition tax credits bill. It would have cut public school funding, reduced school choice for Utah's families, and provided a new tax loophole for a few wealthy people and corporations that have already arranged to pay less in taxes than middle class families pay.
House Vote on H.B. 39 |
For | Against | Absent |
34 | 40 | 1 |
Democrats |
0 | 19 | 0 |
Republicans |
34 | 21 | 1 |
Tuition tax credits were a real threat this year because Gov. Huntsman said he would sign this bill. Democrats stood up unanimously against it and protected Utah's children.
The Failure: Fighting for the people
With S.B. 175 of 2004 the legislature overturned the citizens' initiative the pass the Utah Property Protection Act. The people voted 69%-31% to pass the initiative in the statewide general election of 2000.
House Vote on 3rd reading of S.B. 175 |
For | Against | Absent |
46 | 27 | 2 |
Democrats |
18 | 1 | 0 |
Republicans |
28 | 26 | 2 |
Senate Vote on 3rd reading of S.B. 175 |
For | Against | Absent |
18 | 11 | 0 |
Democrats |
5 | 1 | 0 |
Republicans |
13 | 10 | 0 |
This bill requires some history to understand.
Civil forfeiture is a legal process allowing the government to seize and keep private property that has been used in a crime. Modern civil forfeiture does not require that the owner be convicted of a crime or for the criminal act to be proved beyond a reasonable doubt for the property to be taken.
In 1984 Congress made two changes in the forfeiture law. First, it allowed homes and other real estate to be forfeited, and second it allowed federal police agencies to keep the proceeds of forfeitures for their own use without congressional appropriation.
Forfeiture was easy for federal police. Police simply took property—cash, cars, boats, even houses—without needing to prove anything. The owner of property had to post a bond of up to $5000 just to contest forfeiture and then had to prove that he was innocent—not merely "not guilty," but actually innocent. Beyond that he had to prove that everyone he allowed access to the property was innocent and that he could not have reasonably even known about a crime. The police didn't even have to prove that a crime was committed; the entire burden of proof was on the owner.
And forfeiture was very lucrative. Police took cash from a buyer traveling to a landscaping convention to buy plants (because carrying cash was suspicious) and kept it. Police took homes from grandmothers who had grandchildren visiting who sold marijuana to friends (but not inside the house) and police sold the house and kept the money.
It was so easy that in 1992 park police arranged to search a ranch in California hoping to find a wild California marijuana plant or two so they could keep the property adjacent to a National Recreation Area without paying for it. The owner, Donald Scott, was shot and killed in a midnight raid. No marijuana was found on the property.
With the easy federal forfeiture laws, the federal police started running forfeitures even for local police, keeping a 20% vigorish and returning the rest to local police.
In 1991 the Pittsburgh Press published an exposé detailing huge numbers of abuses as forfeiture proceeds climbed past half-a-billion dollars a year. Then in 1993 the San Jose Mercury News published even more stories documenting cruel violations of property owners' rights by overzealous federal police. Finally in 1996 the Supreme Court decided 5-4 that being innocent was no defense against civil forfeiture. A Michigan woman whose husband used her car to solicit a prostitute had her car forfeited and the Supreme Court declared she had no right to recourse even as to the half of the car that was hers (I hope she took the obvious recourse against her husband).
But treatment of innocent owners was not the worst problem. Chief McNamara of the San Jose, California police department was told by the city council that his department would receive no money for equipment any longer because they were expected to fund it through forfeiture. Similar bargains, mostly implicit, exist between police chiefs and city councils throughout the nation today.
Police departments get their funding from legislative bodies that set local taxes and pay for public safety. But with forfeiture directly to police, departments now have two masters, the people through their legislators and the forfeiture money. A department that doesn't abuse forfeiture will not be able to afford to operate now that legislatures expect money from forfeiture to come in. To get forfeiture money, police have to focus on seizing money from property owners and not on actual crime fighting measures.
To stop crime takes police in neighborhoods keeping crime out of the community. Raising forfeiture money requires big money seizures of property from customers of vice crimes. When legislatures can't take responsibility to direct resources into community policing and police have to shift to forfeitures, we all suffer with more crime.
And more crime in neighborhoods while police try to raise money through seizure is the biggest cost of all from a corrupt asset forfeiture system.
In 2000 Rep. Henry Hyde (R-IL) finally managed to pass a bill to reform the asset forfeiture system. The Civil Asset Forfeiture Reform Act was watered down in the Senate, but it did become law with the help and support of Senator Orrin Hatch (R-UT). The $5000 bond was eliminated and the burden of proof was shifted to the forfeiting agency. A limited innocent owner defense was established. And indigent owners were promised court appointed counsel (though that promise has not been kept). But federal police were still allowed to keep and share all the money and property they seized without congressional appropriation.
We reformed our state forfeiture system in 2000 also. Utahns passed the Utah Property Protection Act that strengthened all the federal reforms and directed all proceeds from forfeiture into the Uniform School Fund. The UPPA also limited the practice of turning over seized property to be forfeited under federal law with less protections for Utahns. The initiative won 69% of the vote in spite of an active campaign against it by district attorneys that benefit from forfeiture money.
District attorneys soon confirmed our worst fears that they were addicted to undemocratic forfeiture money. For three years, they openly defied state law and held public school money illegally. State Auditor Auston Johnson issued several reports documenting this lawbreaking. Even then, district attorneys persisted in their contempt for the law in the very offices where that contempt is most dangerous to democracy.
Then in 2004, after several attempts in previous years to reverse the people's vote, the legislature gutted the Utah Property Protection act with Senate Bill 175. This vote (see the score above) redirected forfeiture proceeds out of the Uniform School Fund and put Utahns back at the mercy of the federal forfeiture rules. Now your local police department has to serve two masters again, forfeiture funds and your elected leaders.
Why did only one Democratic Senator—the great Sen. Ed Mayne (D-West Valley)—and one Democratic Representative— Rep. Carl Duckworth (D-Magna)—stand up for the people on this vote? Supporting the democratic initiative process, protecting the rights of the people and supporting police officers working in the community to prevent crime are core Democratic Party principles. (Note: Rep. Scott Daniels (D-SLC) worked to restore an innocent owner protection measure that the law originally weakened before Daniels voted for the bill.)
Thousands of Republicans are excited about this issue enough to organize in their districts to fight for the right side. Senator Valentine had to back off the original version of this bill and let Senator Buttars carry it because his constituents demanded it. Senator Buttars nearly had a strong convention challenge threaten his seat after it passed. We should have worked to earn the peoples' votes against Republicans who passed this bill and because we did not, there are fewer Democrats in the legislature now.
I think our Democrats' bad votes against the people were my fault and the fault of Democrats who knew about this issue. I followed this issue closely from 1991 when I read the Pittsburgh Press story until 2000 when we passed reform legislation. And I expected our Democrats in the legislature would know about it also and do the right thing, but I should have been active in educating them. It seemed so obvious to me, but just the length of this post demonstrates why education was necessary. Next time, I promise to do better.
Expect a post in this space about once a week from the Legislative Minority Project.