A constitutional convention might not be as far fetched as many think

By Melissa Davlin and Seth Ogilvie


Idaho may soon join the states that are petitioning for a convention to consider adding a balanced budget amendment to the US Constitution.

Rep. Christy Perry, R-Nampa is sponsoring the concurrent resolution. The balanced budget amendment would require Congress to stay within projected revenues when appropriating money each fiscal year, except during a national emergency.

House Majority Caucus Chairman John Vander Woude, R-Nampa, supports the idea of an amendment to get federal spending under control. “It doesn’t make any difference who’s in control, Republicans or Democrats. They all know that money gets votes,” Vander Woude said. “Nobody seems to want to balance the budget. So we’re thinking, maybe if we had a constitutional convention and an amendment, that would force the federal government to actually run on a balanced budget.”



Not everyone is fully on board with the idea of a convention.

“My concern is if you look at the power of special interests in politics, what you’ll get…. at a convention of states is special interests deciding what the Constitution should say,” Congressman Raul Labrador told attendees of the Heritage Foundation Conservative Policy Summit on February 3. (You can listen to his full remarks on the issue here.)

That means not only could other amendments be introduced, but existing amendments could be changed.

There are plenty of other proposed additions for the US Constitution, too. Presidential candidate Marco Rubio recently said he supports the idea of adding an amendment on term limits, as well as the balanced budget amendment. 

Vander Woude said the idea is to limit the scope of the convention to just the balanced budget amendment. But some critics say there are no provisions in the Constitution for precluding other amendments from being altered or presented at a convention.

“We’ve talked about that. If we send our delegates down there, they’ll be bound by, they can only vote on one issue,” Vander Woude said. A handful of other states also have similar agreements, he said.

This isn’t the first time Idaho lawmakers have considered petitioning for a convention. In 1990, Dan Chadwick, then-chief of the Idaho Attorney General Office’s Intergovernmental Affairs Division, wrote an opinion in response to two Idaho state senators addressing both the convention and the limitation concerns. 

“If a convention were called on the balanced budget amendment and it was ultimately determined that the convention could not be limited in scope, the concern you expressed in your letter about possible repeal of the Second Amendment (dealing with the right to bear arms) or modifying the “Great compromise” which granted the small states an equal voice in the Senate, could be realized. such a convention could ignore or reject the balanced budget amendment, while proceeding to consider these and other questions for submission to the states,” Chadwick wrote. “Again, with no definitive legal precedent, it is hard to say what might take place.”

Article V of the US Constitution allows for state legislatures to petition for a convention to propose amendments or changes to the Constitution.

Perry’s concurrent resolution calls for a convention to add a balanced budget amendment, which would require Congress to stay within projected revenues when appropriating money each fiscal year, except when a national emergency would require them to spend more.

There are two steps for changing the US Constitution: Crafting the amendment, and ratification.

For step one, Congress can pass the amendment (the most well-known route), or states can call a constitutional convention. For the latter, two thirds (or 34) of the states must petition Congress for a convention to approve the amendment.

Regardless of how the amendment is created, it has to be ratified by three fourths (or 38) of the states. That ratification process could happen through the states’ respective legislatures. Congress could also call on states to form conventions specifically to ratify the amendment — a process that has been used just once, to ratify the Twenty First Amendment, which repealed Prohibition.

But the country is approaching that first hurdle. Twenty seven states have current petitions for an amendment; Just seven more legislatures must pass the petition to reach 34 states. States have petitioned for a balanced budget amendment since the 60s, with some withdrawing their petitions over fear of a so-called “runaway convention.” All of the states’ petitions must call for the same amendment in order for them to count toward the two-thirds goal.

“It would be historical if all 34 states are able to come together to do this,” Perry wrote in an e-mail to Idaho Reports.

The ALEC-connected Balanced Budget Amendment Task Force, a Florida-based non-profit, lists Idaho as one of the seven states it’s “targeting” in 2016, along with Oklahoma, South Carolina, Virginia, Wisconsin, West Virginia and Wyoming. Currently, there are legislative sponsors of the amendment petition in 13 states, according to the BBA Task Force website. 

Helping along the process even more: ALEC also has model legislation for proposing, voting on and ratifying the Balanced Budget Amendment. 


Bedke, Hill hint at upcoming education fights

By Seth Ogilvie, Idaho Reports


Lawmakers have publicly embraced increasing education spending, but on Monday, legislative leaders hinted that not everyone is on board with the governor’s K-12 or higher education requests.

Speaking to the Idaho Chamber Alliance, Speaker of the House Scott Bedke and Senate President Pro Tem Brent Hill discussed Gov. C.L. “Butch” Otter request to increase the public education budget by 7.9 percent.

Hill suggested lawmakers “probably won’t get all the way there, but we’ll probably be in the range of what we did last year.”

That’s still a sizable boost — during the 2015 legislative session, Idaho public schools saw a 7.4 percent increase, or about $101 million, according to Idaho Education News — but Hill’s statement hinted at some resistance within the Republican caucus to the amount of spending proposed by Otter.

Sen. Janie Ward-Engelking, D-Boise, wasn’t surprised. “There is always (pushback) when we try to spend money on education.”

Otter’s tuition freeze, which would lock tuition rates at public colleges and universities for four years of school, received no endorsement at all.

“It made for a nice paragraph in the State of the State,” said Bedke, “but I’m not seeing legislators jump up and down for it.”

Ward-Engelking, who is a supporter of making college more affordable, echoed the pessimism. “It’s not looking good that we get it done this year,” she said.


Bedke proposes alternate PCAP funding mechanism

To avoid a conflict between water recharge and lowering health care costs — two issues forefront on lawmakers’ minds– that $30 million to fund the proposed Primary Care Access Program might not come from cigarette and tobacco taxes after all.

At an Idaho Chamber Alliance meeting on Monday, House Speaker Scott Bedke shared his thoughts on the funding mechanism for Gov. Otter’s proposed Primary Care Access Program.

“I’ve got a few problems with this,” Bedke told the chamber representatives from across the state.

Bedke, who spoke on a panel with Senate President Pro Tem Brent Hill, didn’t say he was against the PCAP proposal, but said he wants to find a different way to pay for it.

“It’s got to come from a source of money that’s not spoken for yet,” Bedke said.

Otter and Health and Welfare Director Richard Armstrong proposed using $30 million from cigarette and tobacco taxes to fund the proposed program, which would cover basic preventative care for those who don’t qualify for Medicaid but don’t make enough to receive subsidies through the state insurance exchange. Currently, cigarette and tobacco taxes are divvied between a few programs, including managed aquifer recharge efforts and the GARVEE debt fund.

Bedke said he would rather use the part of the Millennium Fund — Idaho’s pot of money from the tobacco settlement that was established in 2000 — and savings from the Catastrophic Health Care Fund, which pays for emergency indigent health care.

“We’re realizing savings because of the success of our state-managed health exchange, so the Catastrophic Health Fund is putting money back in the budget,” Bedke said.

Bedke pointed out that some House Republicans are already wary of PCAP proposal, and might balk at the idea of diverting cigarette and tobacco taxes to fund it. “If we use the Millennium Fund and the CAT dollars from this year, I think that is a lower hurdle,” Bedke said.

Bedke did say the state’s system of providing care to indigent patients needs to be fixed.

“We’re delivering healthcare to them but we’re doing it in an inefficient and expensive way,” Bedke said.

Bedke’s comments come the same day Otter requested more general fund money for aquifer recharge. Nate Brown of the Times-News has a breakdown of Otter’s request, plus reactions from water stakeholders. 


Idaho Reports web extra: Keough and Bell on fiscal conservatism

This week on Idaho Reports, Rep. Maxine Bell and Sen. Shawn Keough, co-chairs of the Joint Finance-Appropriations Committee, sit down with us to discuss the budget, revenue projections and more.

After the interview ended, both were gracious enough to join me for an extended conversation about philosophical approaches to budgeting, as well as whether civility has changed over the years in the Legislature.

For the rest of our budget conversation, watch the Jan. 22 episode of Idaho Reports. Idaho Reports airs Fridays at 8 pm, and again on Sundays at 10:30 am MT/9:30 am PT, on Idaho Public Television. You can also catch it online at idahoptv.org/idreports.


ACLU public defense lawsuit dismissed

By Melissa Davlin and Seth Ogilvie, Idaho Reports


The public defense lawsuit filed by ACLU Idaho has been dismissed, according to the Idaho court repository. You can view District Judge Samuel Hoagland’s decision here.

The ACLU filed the lawsuit against the state in June 2015, charging the state’s system of public defense didn’t meet constitutional muster. Currently, Idaho’s 44 counties are in charge of providing legal defense for those who can’t afford lawyers, but critics say some counties fail to provide adequate defense.

In his decision, Hoagland concurred there are problems with Idaho’s public defense system, but said the plaintiff cited examples only from a handful of Idaho counties — even though the entire state of Idaho was sued on grounds that the whole system is flawed.

Hoagland also said while Gov. C.L. “Butch” Otter and the Idaho Legislature have influence over the counties and can help them fix public defense inadequacies, the courts don’t have the authority to compel either party to solve the individual problems.

“The connection of the claimed injury to the Governor and the PDC are too remote to be fairly traceable,” Hoagland wrote. “Neither has the power and authority to act alone to address the Plaintiff’s grievances. Certainly, both have moral, political, and public power to pressure the legislature or the counties to act, but neither have the ability to require it.”

Hoagland did not agree with the state, however, that Otter or the legislature are immune from lawsuits over the issue.

The Governor has a duty to ensure the Constitution and laws are enforced in Idaho. The governor also has direct supervisory authority over those responsible to establish standards for a constitutionally sound public defense system,” he wrote. “The fact that the legislature has delegated public defender services to individual counties does not abdicate the Defendants’ responsibility to indigent criminal defendants in the state of Idaho. Accordingly, the court finds that the Governor and the PDC members are subject to suit.”

Hoagland’s dismissal happened around the time the Idaho Legislature’s Public Defense Reform Interim Committee met again to go over details of a public defense reform proposal.

Lawmakers on the committee have said in the past that no matter what happens with the ACLU lawsuit, they aim to make changes to the public defense system in Idaho, including having uniform standards and training for public defenders and providing more resources for counties.

“This dismissal of the lawsuit will not put a stop to the work of the interim committee. The state had every plan to go forward with public defense improvement,” said Rep. Christy Perry, co-chair of the interim public defense committee. “What it may do is now open up a better dialogue, actually, between those who are seeking change and those who are trying to implement it.”

ACLU Idaho released this statement:

“We haven’t seen the official decision, but everybody knows this lawsuit is going to have multiple chapters. Idahoans deserve their 6th amendment rights, and we at the ACLU of Idaho will continue to stay aggressive as we have been to protect those rights.”

Gov. C.L. “Butch” Otter’s office had no comment at this time.

Check back for updates.



Of fish, tribes and industry

The state’s most powerful industry groups, conservationists and tribes are arguing over cancer risk, pollution, and huge expenses for businesses and cities.

And it all comes down to how much fish we eat.

On Wednesday, the Senate Resources and Conservation Committee will hear testimony on a controversial Department of Environmental Quality water rule, which uses fish consumption rates to determine acceptable water pollutant levels.

It’s a complex rule, but here are the basics:

Why it’s important:

Fish accumulate toxins and carcinogens from their habitat, and pass small amounts of those on to the people who eat them. People are also exposed to those toxins through other ways, such as  swimming. Some of those carcinogens occur naturally, while others are the result of pollution. The amount of toxins is small, but the chemicals can build up over time, especially for those who eat large amounts of fish.

The Environmental Protection Agency directed states to come up with risk assessments for their residents based on how much fish they eat. Idaho DEQ surveyed thousands of people, including anglers and tribal members, and held meetings with stakeholders over the course of three years. The Nez Perce Tribe and Shoshone Bannock Tribe also conducted their own respective surveys.

Based on that information, DEQ wrote the proposed rule, which updates criteria for 208 toxic substances found in water.

You can read more about the rulemaking process and timeline here. 

“In developing these rules, our number one priority was to protect public health and that will always be our primary goal,” DEQ director John Tippets said while speaking to the Senate Resources and Conservation Committee on Monday.

The problem:

If you take a look at public comments, almost no one is happy with the standards DEQ proposed. 

According to the survey, members of Idaho’s American Indian tribes eat more fish than non-tribal members. That puts tribal members at greater risk of getting cancer if water quality standards are based on lower fish consumption rates, argued regional tribal representatives during DEQ’s public comment period.

“DEQ has proposed water quality standards for Idaho’s waters that were calculated using substantially reduced levels of protection for tribal people as compared to the general population,” wrote representatives from the Coeur d’Alene Tribe.

The Confederated Tribes of the Umatilla Indian Reservation agreed, saying “This is discriminatory, would result in disproportionate and disparate risk to tribal members, and would provide unequal protection as a direct product of state action.”

There is also the question of how much fish people currently eat versus how much more people would eat without modern factors like dams, smaller fish populations and pollutants. Tribes and conservation groups want DEQ to factor in these higher hypothetical rates when considering risk factors, though the agency argues the EPA has never defined suppression rates, nor does it require states to use those numbers when setting quality standards.

An expensive proposal:

On the other hand, industry groups and municipalities argue that the actual threat of cancer is miniscule, while the cost of meeting the proposed standard will be enormous for cities and businesses.  

The Northwest Food Processors Association wrote the proposed standards might not be achievable for businesses. “It should be noted that these unrealistic risk thresholds will result in significant expenditures to meet criteria that, at best, will provide negligible improvements for human or ecological health. These costs do not just impact the regulated community, but will impact all Idaho businesses and residents,” the group wrote.

The American Forest and Paper Association agreed. “This policy would reduce potential cancer incidence by a fraction of a cancer case per year compared to criteria set at (a lower rate),” the association wrote. “But, such a policy also imposes costs on cities, counties, rate payers and industry of potentially several billion dollars, harming the economy of the state.”

What’s next:

The Senate Resources and Conservation Committee will hear testimony on the proposed rule on Wednesday.

Watch this week’s Idaho Reports for more on the fish consumption rule, as well as other water policies that the legislature will consider during the 2016 session. 



Uncomfortable questions on four-day school effects, but no clear answers

Over the last week, Idaho Education News has rolled out in-depth reports on the effects of four-day schedules on school district finances and student performance.

But what about the other parts of the community? Idaho Reports explored possible ripple effects of a four-day schedule, with uncomfortable questions about teen pregnancy and juvenile crime rates.

Crime rates dropping, but no clear answer why

While superintendents and teachers we spoke to said many families have child care or an at-home parent for their children on their days off, as well as activities for older students, many said that isn’t always true for everyone across the board.

So without structure or supervision from the school, do some kids find trouble on Fridays?

Like many questions surrounding four-day schedules, those answers are hard to come by. The Idaho Department of Health and Welfare tracks teen pregnancy rates, and Idaho State Police tracks juvenile crime, but each agency does so by county, not by school district.

To add to the confusion: While a handful of counties are now 100 percent on a four-day schedule, most counties in Idaho have a mix of four-day and five-day schools, making statistics unclear.

In interviews with Idaho Reports and Idaho Education News, county and school officials said anecdotally, they have seen no difference in teen pregnancies, and in many cases, juvenile crime numbers have gone down.

In an October 5 interview, Adams County Sheriff Ryan Zollman said if anything, juvenile crime has dropped since Council High School transitioned to a four-day week.

“A lot of it has to do with the kids are in school Monday through Thursday longer,” Zollman said. That extra hour of school time means there are fewer kids milling around in the afternoon before their parents get home.

Gooding County Sheriff Shaun Gough agreed. “We actually think it’s better,” he said.

But as with anything, correlation vs causality is tough to pinpoint. Zollman said another possible reason juvenile crime is down is there are simply fewer juveniles in the community.

Between 2000 and 2014, Council’s population has hovered between 800 and 840 people, but the percentage of households with children younger than 18 dropped from 27.4 percent in 2000 to 25 percent in 2010. It’s a slight difference, but one that Zollman has noticed.

“The working families are leaving the community,” he said.

Another factor: Juvenile crime is down everywhere statewide. In 2009, law enforcement agencies reported 13,944 charges against juvenile offenders, according to Idaho State Police. In 2013, that number dropped to 9,710.

No baby boom in four-day schools

Teen pregnancy is also hard to track. Like crime, rates have steadily dropped throughout Idaho, from 23.8 pregnancies per 1,000 females ages 15-17 in 2008, to just 11.1 pregnancies per 1,000 in 2013.

Historically, those rates have varied county by county, too: Custer County, which has one high school in Mackay and buses other high school students to a four-day school in Challis, consistently has some of the lowest teen pregnancy rates in the state, while Gooding County, which now has four high schools on a four-day schedule, consistently has among the highest rates.

Pregnancy rates per 1,000 females ages 15-17

*Note: Idaho Reports chose a sampling of counties across the state in which the majority, or all, schools in the county are on a four-day schedule.
Source: Idaho Department of Health and Welfare Bureau of Vital Records and Health Statistics

Superintendents and school leaders said they have seen no difference in pregnancy rates after transitioning to a four-day schedule, though nearly everyone interviewed by Idaho Reports said they hadn’t considered a possible link between the shift in high school schedules and teen pregnancy.

Hagerman Superintendent Eric Anderson, whose district just transitioned to the new schedule in the 2015-16 school year, said while child care was a concern for parents and school leaders, no one brought up pregnancy or juvenile crime.

Shoshone Superintendent Dr. Rob Waite has worked at three districts during their transitions to four-day schedules, and said teen pregnancy and juvenile crime was never a concern at any of his former school districts.

Mackay Superintendent Leigh Patterson said his 38 high schoolers stay involved with FFA, school government and athletics — enough activities to provide a distraction. “Here, our kids are busy,” Patterson said.

A shifting work culture

While the kids stay busy, their parents and their employers are adapting, offering more supervision for children.

In Hagerman, one of the community’s largest employers, Idaho Power, already operates on a four day schedule, Anderson said. Shoshone area employers also adapted, Waite said, and many parents take advantage of the free Friday to attend optional school activities with their students.

Anderson acknowledged that while Hagerman School District had a lot of input from parents before transitioning to a four-day schedule, not every family chimed in, and there could be single or working parents who struggle with child care. But a lack of communication between some families and schools isn’t unique to four-day schedules, he noted, and child care on Fridays was among the major concerns for district leaders before they made the transition.

In Bear Lake County, child care has always been on working parents’ minds. Sheriff Brent Bunn said most residents work rotating shifts, either at the hospital or at plants like Agrium and Simplot in neighboring counties.

“A lot of people in our area work shift work anyway so I don’t think there’s any impact on child care or anything like that,” Bunn said, adding several of his deputies have school-aged children, and they’ve never mentioned child care issues.

“For work wise, I think everybody enjoys having the three days off every week,” Bunn said. “Kids and staff as well.”

For more on Idaho’s four-day schools, catch up on the in-depth series from Idaho Education News. And don’t forget to watch the Nov. 20 episode of Idaho Reports, airing Friday at 8 pm or Sunday at 10:30 am MT/ 9:30 am PT on Idaho Public Television. You can also watch it online after it airs on idahoptv.org.