About that transmittal letter…

By Melissa Davlin, Idaho Reports

When Gov. Brad Little posted the transmittal letter for the Medicaid work requirements legislation, several reporters (this one included) noticed that the letter itself read like a veto. It outlined multiple issues Little had with the bill, and instructed lawmakers to continue working on the issues.

Idaho Reports did a public records request for all drafts of the transmittal letter, as well as communications regarding the letter.

Those drafts show that Little’s staff wrote the letter the day before he signed it without the key line “with my approval,” and didn’t insert that line until the morning of. Instead, an ellipsis acted as a placeholder in that sentence while Little’s staff members worked out the rest of the letter.

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An April 8th draft of the Senate Bill 1204 aa, aaH transmittal letter.

 

That key phrase “with my approval” wasn’t added until April 9, the morning Little released his letter. In an 9:36 am e-mail, two hours before the letter was posted,  chief of staff Zach Hauge asked communications director Emily Callihan to “add language that the Governor has signed.”

Idaho governors have three options on how to handle a bill: Sign it, veto it, or let it become law without their signature. (The latter is often used to show disapproval.)

In an interview with Gov. Brad Little that aired on April 26th, Idaho Reports asked if these drafts were an indication that he hadn’t yet decided how he would handle the legislation. He said no.

“The transmittal letter means by its very nature that I’m signing the bill,” he said. “You look at every transmittal letter I wrote, I only sent a transmittal letter if I had an issue with that bill.”

Little acknowledged in both the letter and in the Idaho Reports interview the multiple issues he saw with the bill. You can read the final letter here. 

In the Idaho Reports interview, Little said he does not believe the federal government will approve all the waivers, particularly the work requirement and the copay provisions.

“Frankly, CMS and the US Department of Health and Human Services, they’re having a change of heart on some of those issues, so it’s hard to tell,” Little said.  

For the full interview, watch the April 26th episode of Idaho Reports at idahoptv.org/idreports.

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Analysis: Legislature cedes rulemaking approval to Little

By Melissa Davlin

Over the last several years, the Idaho Legislature has paid closer attention to the administrative rulemaking process — a critical bureaucratic function of the government in which departments and divisions create rules that specify how certain statutes are carried out.

But in an attempt to center more power with the Legislature, the House and Senate just surrendered significant authority to Gov. Brad Little.

At the end of the 2019 session, the legislature failed to reauthorize the state’s existing rules, as they normally do every year. The reason: A fight between the House and Senate over how those rules should be approved. Currently, just one body’s vote ensures a rule is approved. The House wanted both bodies to sign off to save a rule from rejection, giving the legislature more control over the process.

Without any action from Little and his staff, all 8,000-plus pages of those administrative rules would expire at the end of the fiscal year on July 1.

Instead of calling a special session to make lawmakers finish their homework, however, Little is using his executive authority to re-up those rules. And in the process, “Governor Little ultimately will make the decision before July 1 whether to let a rule expire,” according to a Tuesday press release from his office. 

Administrative rules have the full force of law, and cover a wide range of topics — which immunizations school children need, what types of medications pharmacists are allowed to dispense, what an electrician needs to do to get a license. Common core curriculum is in administrative rules, as are the hotly debated climate change standards.

While Little has said he didn’t want this to happen, and that he doesn’t plan any major changes, he still has ultimate authority over which rules will carry over into the next fiscal year.

Agencies will also get the chance to weigh in.

“Governor Little’s administration will use the unique opportunity to allow some chapters of Idaho Administrative Code that are clearly outdated and irrelevant to expire on July 1, 2019,” the press release states. “An agency must notify the Division of Financial Management (DFM) if it identifies a rule that could be eliminated. DFM will solicit public comment on any proposed rule elimination.”

In a fight over an obscure bureaucratic process, this could either set a wild precedent for future years, or teach the legislature to finish its chores before leaving to play.

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Voter initiatives and administrative rules bill DOA in Senate, Winder says

By Melissa Davlin, Idaho Reports

While the House was at ease to add in amendments to Senate Bill 1205 — changing the Senate legislation into a previously rejected House version that would force both bodies to approve administrative rules — Senate Majority Leader Chuck Winder told reporters in no uncertain terms that the amended bill was dead on arrival.

Why? First of all, the Senate had already rejected the House’s proposal about two months ago, Winder said. He also cited previous administrative rules fights, such as one over whether climate change should go into Idaho’s public school curriculum.

“In that case, I think common sense prevailed,” Winder said. He doesn’t want to give the House more authority over the rules.

Also dead on arrival? House Bill 303, which resurrects part of the previously vetoed voter initiative bill. Winder said he supports the idea of the legislation, which would require initiatives to have a fiscal note and funding source, as well as focus on a single topic. But, he said, it’s too late in the session to consider it. Expect it to come back next year.

Does the House have any recourse? They just passed their last appropriations bill — the budget for the State Board of Education — but they will have to approve the trailer bills for the Medicaid work requirements appropriations passed out of the joint budget committee on Tuesday.

In other words, this isn’t over yet. (But all signs point to sine die. And we all hope that’s the case.)

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Tribal exemptions for work requirements? Arizona set the precedent.

By Melissa Davlin, Idaho Reports

In today’s Medicaid expansion debate, expect to hear more questions about why the work requirement proposal exempts members of American Indian tribes.

The issue came up in the March 21 House floor debate on expansion, with both Reps. Fred Wood and Mat Erpelding expressing concern over House Bill 277 exempting tribal members from proposed work requirements. (Though the Senate Health and Welfare Committee held 277 in committee, the Senate as a whole reconstructed it in amendments to Senate Bill 1204, which the House is amending Thursday.)

So why is the exemption in the bill? It comes down to tribal sovereignty. A 1974 Supreme Court decision, Morton v Mancari, recognizes tribes as separate political entities.

In other words, the exemption isn’t based on one’s ancestry or race. Rather, an enrollee would be exempt from work requirements only if they are a member of a federally recognized tribe. So if someone has American Indian ancestry, but they aren’t a tribal member, they would still be subject to those work requirements.

Arizona set the precedent by adding exemptions into its Medicaid work requirements for tribal members last year. In January, the Centers for Medicare and Medicaid Services approved the request, after initially saying it believed the exemption would violate equal protection laws.

According to the Associated Press, Maine and Wisconsin allow tribal members to satisfy requirements by working in tribal work programs, and Maine also exempts tribal members from paying premiums. 

In an April 3 joint letter to members of the House, representatives from Idaho’s five federally recognized tribes supported the inclusion of the exemption in Senate Bill 1204, and hinted at a lawsuit if the exemption is removed by lawmakers. “American Indian and Alaska Native populations are treated distinctly under the Affordable Care Act (ACA), which makes it appropriate for states who implement ACA programs to mirror that treatment,” the letter says. “As counsel for the tribes, we view the tribal exemption as a significant legal issue and one we would very much like to avoid if possible.”

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If they opposed it, why didn’t they kill it?

By Melissa Davlin, Idaho Reports

Have some questions after House Health and Welfare sent the Medicaid requirements bill to general orders? I did too! Here are a few answers.

-Why did the five Republicans who opposed the original work requirement bill vote to send the Senate bill to general orders instead of kill it? Because there are some needed tweaks, like a waiver to use Medicaid funds to pay for mental health care, said Rep. Jarom Wagoner, vice chair of the committee. Wagoner acknowledged it’s a long shot that the House will vote for just those uncontroversial tweaks to Medicaid expansion, but it’s worth a shot, he said. Expect multiple amendments, some of which will compete with each other. 

-Is the court decision striking down work requirements on the House’s radar? Yes, said Rep. Megan Blanksma, House Majority Caucus Chairwoman and member of the committee. But, she said, she doesn’t know what will come out of those discussions. As of Wednesday’s committee meeting, the House hadn’t had a chance to caucus and examine the Senate’s amended bill.

-Will we see amendments before they hit the House floor? Only if the amendment authors choose to release them to the public and reporters. Typically, those amendments and fiscal notes are submitted directly to the House clerk, and no one sees them until the House takes them up. That said, authors can choose to share them ahead of time.

 

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Deja vu on Medicaid hearing? Not quite.

By Melissa Davlin, Idaho Reports

It might seem like deja vu in House Health and Welfare this morning as the committee considers a Medicaid expansion sideboard bill — one that, with amendments from the Senate, is nearly identical to the House version that the Senate Health and Welfare committee voted to hold last week.

But there are key differences in this hearing. Keep a few things in mind:

  1. Five Republican members of the House Health and Welfare committee opposed the original work requirement bill when it hit the House floor: Reps. Fred Wood, Jarom Wagoner, Marc Gibbs, Laura Lickley, and Mike Kingsley. Those five had initially joined their Republican colleagues to send 277 out of committee with no recommendation, then ultimately voted against it with Republicans. Now that this is the final stop before the amended Senate bill goes to the House floor, their votes might change.
  2. Chairman Wood tells me Rep. Chad Christensen, one of the Republican committee members who voted for the bill on the House floor, is absent today, and doesn’t have a substitute. That will affect what could be a close vote. Other Republican committee members who supported the original work requirement bill: Reps. Megan Blanksma, Bryan Zollinger, John Green, and bill sponsor John Vander Woude.
  3. Just because the Senate amended the bill doesn’t mean the House can’t also amend it. Expect some competing tweaks.
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Analysis: 10 percent requirement makes district-by-district efforts even more disproportionate

By Melissa Davlin, Idaho Reports

While each of Idaho’s 35 legislative districts has about 45,000 residents (at least at the time of the last US Census), the number of people who vote varies widely in those districts.

That has a big impact on voter initiative efforts — and if the governor signs Senate Bill 1159 and House Bill 296, those efforts will become even more disproportionate in some areas of the state.

The proposed changes to the voter initiative system — one of which has passed both the House and Senate — would raise the number of signatures required for a ballot initiative to 10 percent of “qualified electors” — in other words, registered voters — in 32 legislative districts. (House Bill 296 would lower that to 24 districts.)

Idaho currently requires 6 percent of qualified electors in 18 legislative districts sign a petition to get an initiative on the ballot.

During Tuesday’s Senate State Affairs hearing for House Bill 296, Senate President Pro Tem Brent Hill asked bill sponsor Sen. C. Scott Grow if Utah and other states use ten percent of registered voters, or ten percent of those who participated in the last election.

The answer: Almost all other states use turnout instead of registered voters. (Hill ultimately voted to send the bill out of committee with a do-pass recommendation.)

According to an analysis on voter initiatives by Senate intern Colin Nash, no other state requires 10 percent of registered voters.  The highest threshold, Wyoming, requires 15 percent of the number of votes cast in the last general election. 

There’s a key difference between registered voters and votes cast. Take Idaho’s 2018 election, for example, which saw record-breaking turnout throughout the state. Even with voter turnout hitting between 60 and 75 percent in most counties, there was a huge difference in those who could have voted and those who did.

Most of Idaho’s 35 legislative districts had between 8,000 and 9,000 registered voters who didn’t show up for the 2018 general election. That means Senate Bill 1159’s proposal of using 10 percent of registered voters instead of 10 percent of voters who participated in the last election would require 800 to 900 more signatures in those districts.

District 34, Sen. Hill’s eastern Idaho rural district, had the biggest difference between registered voters and turnout. If the proposal used 10 percent of voters who simply participated in the last election, signature-gatherers would need to get just 1,178 voters to sign on from Dist. 34. Under this proposal, that number of needed signatures more than doubles.

dist34

District 34 needed signatures based on 2018 voter registration and turnout.

District 27, House Speaker Scott Bedke’s rural district, had a fairly high turnout percentage, but the lowest raw numbers of both registered voters and actual votes cast in the entire state. Signature gatherers would need 1,838 voters under the current proposal, as opposed to 1,103 under the current system. 

dist27

District 27 needed signatures based on 2018 voter registration and turnout.

On the other hand, bill sponsor Sen. Grow’s District 14 — located in west Ada County — had the highest raw number of registered voters in the state, with more than twice the number of registered voters and votes cast than Bedke’s District 27.

dist14

District 14 needed signatures based on 2018 voter turnout and registration.

Under Senate Bill 1159, signature gatherers would need 2,000 more signatures in District 14 than in District 27.

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Signatures needed in legislative districts 14, 27 and 34 under Senate Bill 1159 based on 2018 voter registration.

Under the current system, signature gatherers would still have to pony up more signatures in District 14 than District 27, but only about 1,200 more.

comparison2

 

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A wonky workaround to tweaking 1159

Idaho Reports producer Seth Ogilvie pointed this out yesterday.

So much attention is (rightfully) on the secret Ways and Means meeting held Thursday to propose changes to the voter initiative bill, but the manner in which the House is making those changes is just as significant.

The House is proposing changes in a trailer bill, HB 296, instead of in amendments, which is the most common way to tweak legislation.  That’s critical. Even if they pass both SB1159 and the trailer, the Senate doesn’t have to concur with the trailer. In that case, the original bill will be the only one going to Gov. Brad Little.

Had they sent the bill to the House’s amending order, the Senate would have had to debate and vote on SB1159 again. But as it is, the Senate doesn’t even have to consider HB296, and the original bill could be signed into law without the changes.

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Fight over office space prompts cease and desist letter

By Melissa Davlin, Idaho Reports

Contention over limited office space in the statehouse has prompted a cease and desist letter from a former constitutional officer.

Last week, Ron Crane sent a letter to two members of House leadership demanding they stop citing Crane as a supporter of an effort to move the State Treasurer from the first floor of the capitol, opening up that space for House member offices.

The letter references a March 15 appearance on KBOI by House Minority Leader Mat Erpelding and House Assistant Majority Leader Jason Monks. In the interview, Erpelding said Crane had an agreement with the legislature that the state treasurer’s office should move from the first floor of the Idaho Statehouse after Crane retired so lawmakers could take over the space.

“Ron Crane hereby demands that both of you cease and desist stating, writing, or inferring that Ron Crane, at any time, as a party to any agreement to voluntarily relocate the Idaho State Treasurer’s physical office, or its functions, either during or after his tenure, out of the Idaho State Capitol building,” the letter states. “Any statement or implication to that effect is not true.”

In a Tuesday interview with Idaho Reports, Erpelding acknowledged he may have misspoken on the radio. “However, my intention was to say that Ron Crane was well aware of the legislature’s intent to move to the first floor,” Erpelding said. “He was not in the dark about this at any time.”

On Tuesday afternoon, the House Republican Caucus issued a statement saying Crane’s letter was unnecessary and extreme. “(A) simple phone call to discuss the interview would have been sufficient,” said House Speaker Scott Bedke in the statement. “House Assistant Majority Leader Jason Monks and Minority Party Leader, Mat Erpelding, were simply responding to an interview by the current Treasurer on 670 KBOI with Nate Shelman regarding an agreement that was made more than a decade ago. Instead of forcing the move then, a gentleman’s agreement was made to hold off on the move until the former Treasurer retired. That time has come.”

A long-simmering fight

Crane also provided 2018 correspondence between Crane and Bedke on the issue, as well as minutes from two 2007 Capitol Commission meetings, which he says negate the claim he ever agreed to a move. 

In a January 2018 letter to Crane, Bedke pointed to a section of Idaho Code that gives the legislature control of the first floor of the statehouse. “The Legislature temporarily allocated first-floor space to the State Treasurer, but that allocation was temporary and was meant to last only until the Legislature needed more space,” Bedke wrote.

“I was involved in the immediate follow-up discussions when the Governor and the legislative leadership reached a compromise on the allocation of space,” Crane wrote to Bedke in February 2018. “At that time, the Governor asked me if I wanted to move to the second floor or remain in my current office space on the first floor. My response was that I wished to retain the office space on the first floor, next to the original vault. The Governor agreed to this request and I do not recall any discussion of this being a temporary situation.”

Crane also included a 2007 letter from Gov. C.L. “Butch” Otter to Senate President Pro Tem Robert Geddes that supports his claim.

“In summary, the State Treasurer shall occupy all of the office space located on the south side of the east wing of the first floor. The use of the words “temporary basis” was not and will not be a part of any agreement,” the unsigned letter says.

Minutes from 2007 Capitol Commission meetings do not say the treasurer’s occupation of the office would be temporary.

Moving ahead

Though current treasurer Julie Ellsworth has also opposed vacating the first floor, lawmakers are moving forward with the expansion. Crane’s letter comes as the Legislature considers an emergency $10 million appropriation to fund the new office space and a remodel of the east wing first floor, as well as a bill that would remove the requirement that moneys kept by the State Treasurer must be stored in the vault located on the first floor. 

The fight over office space centers on lawmakers’ complaints over inadequate cubicle space in the basement of the capitol. While all of Idaho’s 35 senators have private offices, 49 of the House’s 70 members are in cramped cubicles without doors. Bill Spence of the Lewiston Tribune has more on the fight here. 

Rep. Brent Crane, Ron Crane’s son, said he doesn’t support the $10 million appropriation for the move and remodel, and will vote against it. 

“I think it’s going to be very problematic to try to defend that,” Crane said, who also voted against the bill regarding the vault. (That bill was sponsored by Monks, who succeeded Rep. Crane as House Assistant Majority Leader.)

Brent Crane called the expansion to the first floor short-sighted, saying he didn’t think it took into account the need for more legislative staff members in the future.

Instead, he hopes leadership will look at other options, pointing to lawmakers’ previous occupation of the basement in the JR Williams building across State Street.

Erpelding disagreed.

“The only way to effectively allow for space for legislators and staff… is to look at the first floor,” he said.

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Lawmakers respond to McGeachin Facebook post

By Seth Ogilvie, Idaho Reports 

Idaho Lieutenant Governor Janice McGeachin appeared in a photo on social media that has shocked several members of the Senate and prompted accusations of racism from Idahoans across the state. 

In the photo, McGeachin is making a heart symbol with her hand as two men make an OK hand gesture.

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Source: Facebook.

“I don’t feel safe,” said Sen. Maryanne Jordan in a Friday morning interview with Idaho Reports. “It’s a white power sign.”

In a statement released Friday McGeachin said: “I wholeheartedly reject bigotry and discrimination in all of it’s forms.”

Governor Brad Little released a statement on Monday saying “I discussed the issue with the Lt. Governor. All of us must be accountable for our actions and their implications, and I trust her to do the same.”

The two men flanking McGeachin are Anthony Dephue and James Ward, members of the Political Prisoners Foundation. The foundation is an active non-profit in good standing with the Secretary of State’s office. The group advocates for Todd Engel, who was sentenced to serve 14 years in prison after his involvement in the Nevada standoff at Cliven Bundy’s ranch.

According to the Southern Policy Law Center, the OK hand gesture is sometimes used as a symbol of “white power,” when used by alt-right.

“The problem, of course, is that there are white nationalists, neo-Nazis, and Klansmen who have increasingly begun using the use of the symbol both to signal their presence to the like-minded, as well as to identify potentially sympathetic recruits among young trolling artists flashing it. To them, the configuration means WP, for “white power.”’

The hand gesture can also signal support for the Three Percent movement.

For the antigovernment Three Percenter movement this same hand gesture symbolizes their belief in the disputed claim that only three percent of American colonists fought against the British in the American Revolution,” says a 2017 SPL post. “The three extended fingers represent this three percent.”

McGeachin says in her statement that viewing this in terms of race “is part of a larger narrative to paint conservative leaders as embracing identity politics.”

“It had been our hope that this incident, whatever the intentions, would provoke a deeper dialogue. Clearly the dismissal of these concerns as ridiculous tells us all we need to know,” said Sen. Jordan after reading McGeachin’s statement.

Idaho Reports communicated with Dephue on Facebook. We are being characterized as White Supremacists for our hand gesture,” Dephue wrote. “We would like to engage in a civil dialog that will help your audience make an informed decision.”

Dephue did not address the possible racism in the hand gesture.

McGeachin explained why she deleted the picture from her Facebook Page. “Once I discovered that a few people had begun erroneously assigning sinister motives which are contrary to my character, I immediately deleted the post,” said McGeachin. “The photo was intended to show support for Engel and nothing more.”

Regardless of the intent behind the hand sign, some Idaho politicians have spoken out strongly over the photo.

“This image and the message that it sends is appalling,” former Republican legislator and Congressional candidate Luke Malek told Idaho Reports. “The Capitol of our great State… our people’s house… should never be used as a platform for hate.”

This photo is not the first time McGeachin has been connected to alleged racism on the internet. Idaho Reports reported on Facebook comments made during last years campaign.

“I’ve seen one, now I’ve seen two,” Sen. Cherie Buckner-Webb told Idaho Reports.

“I’m surprised,” said Senate Minority Leader Michelle Stennett. “The lieutenant governor should be more judicious with who she meets.”

In a joint statement from Senate Minority leadership, the senators stated constituents are upset.

“We have heard numerous grave concerns overnight and today from constituents who are now fearful of coming to the statehouse,” said the statement, released Friday morning. “Some have said they will not allow their children to visit. The openness of the statehouse is foundational to our service. Whatever the intention of the post, the impact has resonated negatively across the state.”

In the statement, Democratic leadership did not publicly call for disciplinary action or an apology from McGeachin.

The Lieutenant Governor of Idaho presides over the Idaho Senate, meaning regardless of how they feel, the senators will have to continue working with McGeachin.

Senate President Pro Tem Brent Hill told Idaho Reports on Friday morning that he had just seen the post. “She is not part of the legislative branch of government. I have no authority to discipline her or have an ethics committee. That’s going to have to be worked out with the executive branch of government.”

Hill said he didn’t know until this morning that the hand gesture was affiliated with either Three Percenters or white supremacy.

“I just can’t react to that yet. I’m sorry, I haven’t seen it. I haven’t talked to her about it,” he said, adding that the dignity of the Senate does need to be protected.

Gov. Brad Little’s office said he will wait to release a statement until meeting with McGeachin.

Melissa Davlin contributed to this report. Idaho Reports will have more throughout the day, and on this week’s episode. Idaho Reports airs Friday at 8 pm.

This story was updated to include a statement by Governor Brad Little at 4:38 on Monday.

 

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