The Bizarre & the Modern

Harry Bailly 01

This is the first post by new Leavenworth St. contributing writer “Harry Bailly”. You can read his bio in the “Writers” tab above.

The Nebraska Legislature is back in session, and so is the parlor game of following the antics of the Unicameral. We can always have some fun discussing the unhinged rants of Ernie Chambers, but Deena Winter at Nebraska Watchdog does such a good job of covering that particular topic that there is no reason for me to weigh in.

(An aside: I always chuckle when people say that they wish that legislative bodies—like the Unicameral and, heaven forbid, Congress—would “do more.” I really wish that our elected overseers would do less.)

Instead, since I am a lawyer, I cannot help myself but to read some of the proposed bills and to think through how a particular bill—if passed—would affect real people in real situations, like my clients.

Before I get to that, I must nod in the general direction of Sen. Tyson Larson for his common sense cigar bar bill, intended to clip the wings of the Nebraska Supreme Court’s bizarre “special legislation” opinion released last year. As an occasional cigar smoker and general fan of liberty, I am pleased to see some support for the idea that adults may consume a legal product in an environment created by a legal, private business for the express purpose of consuming that product. And if adults may consume another legal product—namely, alcohol—at the same venue, all the better. (Despite my fondness for Larson’s bill—as well as my fondness for adult beverages—however, I cannot see the urgent necessity for another of Larson’s bills, the Drink All Night Long Act.

As of this writing, LB 118, the cigar bar bill, has advanced from committee. Chalk this up as a victory for liberty, tobacco, and alcohol.

My vote for dumbest bill introduced in this session—this was a hotly contested race—goes to Sen. Schumacher’s oddly named Modern Tax Act. The act imposes a 5.5% tax on loan interest, to be collected by the lender with regular payments. Economic stupidity aside, the bill would create a logistical nightmare. It sounds simple enough, until one considers the number of intra-family loans that exist in the agricultural realm.

I see it in my practice all the time: mom and dad want to sell the family farm to one of the kids. Instead of making sonny boy head downtown to his local bank, mom and dad agree to take a promissory note or to sell on contract. This is generally a good deal for all parties: the kid gets favorable loan terms, and the parents get an income stream and the peace of mind of knowing that the farm will stay in the family.

Under this scenario, Schumacher’s bill would turn the parents into tax collectors. They would be responsible for adding the tax to the interest and forwarding it along to the Department of Revenue every time dear son makes a payment.

I understand that with the focus on property tax relief there will be some crazy ideas to generate additional revenue, but this one is particularly bad.

Second place probably goes to Sen. Baker’s bill that—unintentionally, we are told—revoked the right of citizens to examine and copy public records. The bill was withdrawn, but perhaps it should have been read more closely before it was introduced.

With a new governor and many new members in the Unicameral, this legislative session should shape up to be fun to watch. Who knows, maybe we will see more senators sporting t-shirts instead of those stuffy suits and ties.


  1. Anonymous says:

    The talk of Nebraska politics.

    What is “talk”? Being talked at? Or is it having a volatile issue laid out and then giving readers time to respond, react and re-respond.

    I like what I have seen so far from the guest opinion writers. But a new opinion every day stops any rising discussions from rising. Hush people too often and they leave. There is only so much interest you can have in sitting there being preached at. It is parry and thrust of fencing over issues that draws many to blog. If they come here just to read an opinion, they can get that from the local fish wrap.

    Bloggers can indeed get overheated. But if the problem is the repartee, why then have a comments section at all? If you have one for bloggers, give them time to interact.

  2. Patrick J. Borchers says:

    As I understand the project, SS isn’t going to stop with the “inside scoop” stuff that always drew me to this blog. Of course that and the sometimes informed, sometimes witty and often loony comments. So we’re supposed to do some different kinds of posts in between when he has time to come up with those posts. My post in late January on the National Popular Vote Initiative was supposed to be the first of them, but when the hearing got set in the Government committee we decided to put it out when it might have some impact (and it drew over 80 comments, including the usual loony stuff). But we’re in sort of a slow season for campaigns right now. I doubt that you’ll see six posts rolled out in three days in the future; SS was just trying to introduce us. We’re all trying to learn to write for a new audience too. I have a different crowd (some crossover with L St.) that reads my blog. Leaving my effort out, I thought that the new writers all did a good or better job. Like a lot of you, I thought this one was the best because it managed some of the sarcasm that has been this blog’s trademark (and Harry and I agree on the cigar bar bill, for exactly the same reason). So the “old” L St isn’t going away, it’s just being augmented.

  3. Oracle says:

    Patrick, let’s be honest here. The major objection Republicans have to National Popular Vote is that it makes it more difficult to win the presidency without having a plurality of votes. The overriding philosophy of Republicans is to win at any cost. Otherwise, please explain to me why Republicans in Nebraska want to return to winner-take-all, practically guaranteeing that all 5 electoral votes go to the Republican candidate, while Republicans in blue states with Republican controlled legislatures are pushing to divide their electoral votes by congressional district. Doing this makes it much easier to “rig the system” by ensuring that more EVs go to the losing candidate rather than a proportional allocation. On a national level it would then be much more likely that a Republican presidential candidate could win while solidly losing the popular vote. Unlike your far-fetched scenarios, this is practically a given. However I guess you’d consider the election of a Republican without wining the popular vote a feature, not a bug, in the existing system.

  4. Patrick J. Borchers says:

    Oracle, to your second point — yes “winner take all” is strategic. But it’s a legitimate choice available under the Constitution. The fact that New York retains winner take all is a strategic choice, because if it went to the Nebraska method there would be a wide swatch of red electoral votes in upstate New York.

    I think the backers of NPVI think that it’s mostly strategic, but it’s rife with problems that go well beyond that. I don’t think my scenarios about states backing out without giving the noticed are far fetched — I think they are virtually inevitable. I also think that it’s vulnerable to constitutional attack as I outlined. Even Vic Amar (one of the law professors behind it) admits that the Equal Protection Clause would require uniform national rules on early voting and voting ID if we changed to a popular vote system.

    As to the strategy involved, it almost went the other way in 2004. Although Bush won by about 3 million votes, if Kerry had gotten 59K more votes in Ohio Kerry would have been President even with a decisive loss in the popular vote.

    The biggest change will be a loss in rural influence. Some of the swing states (Iowa and Wisconsin in particular) are heavily agricultural. As we move from swing states to swing metro areas, the incentive of candidates to become informed on ag policy will be reduced to nil.

    I’m not opposed to it because I think it will advantage Democratic candidates, but more that it’s a messy and dangerous cure for a disease that rarely flares up, if you think electing a President who didn’t win the popular vote is a disease. Since 1888, it has happened precisely one time — 2000. Even in that instance, the fellow I debated from the NPVI claimed that Bush could have won the popular vote had that been his strategy. So by his count, having a national popular vote would not have affected the outcome of the Presidential election a single time since Harrison beat Cleveland.

    If so, why bother with all of this NPVI stuff?

  5. Oracle says:

    Patrick, you make some good points, but you completely ignored the major point of my post. The current system is too open to manipulation by parties that don’t believe in playing fair. And that’s not just speculation, but based on activities in state legislatures such as Virginia, Pennsylvania and Michigan.

  6. Patrick J. Borchers says:

    Oracle, I guess I thought I did address it, but evidently not. Any system can be manipulated, if by “manipulated” you mean allocating the party’s resources in a way that’s most likely to have their Presidential candidate win. It’s essentially a corollary of Arrow’s Theorem. Under any system that you can imagine that still involves popular votes, any party acting rationally is going to allocate its resources in a way that will generate the most votes with finite resources. I don’t see anything fundamentally unfair about that; it’s just rational behavior. No party is going to run a campaign where it makes an equal effort to push its message to each voters and then just lets the chips fall where they may.

    Once we clear that hurdle, the question becomes what system forces parties to allocate their resources in a way that matches your policy objectives? The NPVI folks are pushing the (demonstrably false) argument that the NPV would cause candidates to come closer to (what I take to be) your ideal of having roughly equal attention paid to each voter. This, in my view, is a disingenuous contention. What NPV will do is to cause party and candidate effort to be reallocated in a perhaps-more-concentrated fashion, but almost entirely in high population density areas. The Democrats will bomb away in Los Angeles while the Republicans will bomb away in Orange County. The Democrats will bomb away in NYC and the Republicans will bomb away in the suburban collar of NYC. The Democrats will bomb away in Chicago while the Republicans will bomb away in the wealthy suburbs to the north and west.

    There will be little to no point in hitting Iowa, Nebraska and the Dakotas because all in I don’t think their popular touches the total in the Chicago MSA.

    The swing states are a much better proxy in my view. Almost by definition, they match the urban-rural mix and other demographic characteristics of the US, because that’s what makes them close in Presidential elections. So as a proxy, I much prefer Ohio, Wisconsin and Iowa than I do NYC, LA and Chicago.

    You’re welcome to call this manipulation, but to me it’s no more manipulation than is deciding to play a full court press against a team that doesn’t handle the ball well. That’s just trying to win.

  7. Harry Bailly says:

    Patrick, thank you for your kind words regarding my post (and my sarcasm). Not everyone (e.g., my wife) always appreciates my snark.

    I must point out that while we agree on the cigar bar issue for essentially the same reasons (paternalism=bad), I do have “a dog in the fight” in that I am an occasional cigar smoker. In fact, I smoked a cigar today, in celebration of the warmer weather, while I was taking a walk around the neighborhood with my daughters. Some commenters on other posts would likely have me hauled away to the Department of Correctional Services for such behavior.

    On the issue of the National Popular Vote, I agree with you as well. Our founders conceived of a federal system that, among other things, elected its president through an electoral college. Without the college (i.e., with a national popular vote), all a presidential candidate (likely a Democrat) must do is run up huge margins in urban areas, and more rural states like Nebraska would have essentially no participation in the process. At times with a smile I recall George Mason’s remark that “it would be as unnatural to refer the choice of a proper magistrate to the people” as it would to refer “a trial of colours to a blind man.”

  8. Peptic Skeptic says:

    You say “the overriding philosophy of Republicans is to win at any cost.” That however is not a philosophy but rather a strategic aim shared by every partisan including Democrats. Nobody runs a race to lose. Then too, you may ask yourself, do Democrats seek to win at “any cost”? If they don’t, then neither do Republicans. People are people. Only by twisting facts to fit our visceral feelings, our impressions, can we dehumanize others. From such faux thinking springs left gulags and right ovens.

    Erudition/education is a veneer that masks us all being driven by primate feelings. Altruists on the left and patriots on the right are equally adrift in the delusion that they think rationally, when actually they grasp an intuitive preference or dislike of a thing as a hormonal/genetic response that instantly allows them to distill that quick glance into an “I’m right, your wrong” chimp-like decision to act. Such was the need for survival on the savannah. But we aren’t on the savannah anymore and we now have time to employ logic, cogitate, to think cerebrally. When we do that, we realize that very little about human beings is absolute. The dead giveaway of being mired in one’s feelings is one speaking in absolutes.

    Self depreciating humor and sarcasm are vital tools used by the wisest of us to prick the bubbles of our own dangerous pomposity that tell us we are right and you are wrong, and that we know for sure things to be so.

    Frankly, we usually are never more wrong than when we are sure we are right. Skepticism is what raises man above ape. It feels good to hoot and throw poo. Go ahead but it stays on your hands.

  9. Earnest says:

    Harry. So happy that you and your daughters are avid cigar smokers. And if you were to be hauled off to Correctional Services you would fit right in since they also prefer to ignore Supreme Court rulings. The Supreme Court ruling on cigar bars was right on target and consistent with past rulings. The Legislature was told that would happen in 2009 and chose to ignore and looks like Senator Larson and the rest of the body will again. I would hope that you could agree that carving out a special competitive advantage for the same type of business (in this case bars) is unconstitutional under the Nebraska Constitution. Take a walk from the Capital to Jake’s or Smooth Lounge (the two Lincoln bars granted the exception by the Liquor Control Panel) and common sense would tell that they are not “substantially different” than other bars. As a former family bar owner we didn’t think there should be a smoking ban at all, but since it looks like that is here to stay, at least make it an even regulatory playing field for all liquor license holders. Fairness to all bars should trump Senator Larson’s desire to have a stogie and a Coors Light at a college bar.

  10. Harry Bailly says:

    Earnest, I do agree with you that there should not be a smoking ban at all. I am generally an economic libertarian and I think the free market should be allowed to decide. In a market system free from government regulation, there would be bars that allowed smoking and bars that did not. Private business would make decisions based upon the demand of their customers. Someone would make a lot of money carving out a niche of having a “smoke free” bar. Customers would choose to patronize, and employees would choose to work, accordingly.

    However, in a democracy, we sometimes have to compromise. If I insisted on an “all or nothing” approach I would never be able to advance any cause in which I believe. The cigar bar exception is therefore, in my opinion, a step in the right direction of moving toward a true marketplace. We may never get there. I’m not naive enough to believe that Nebraska will become a libertarian paradise. But I’ll take small victories where I can get them, and I won’t let the perfect become the enemy of the good.

  11. repentinglawyer says:

    Harry, Earnest demonstrates that S Ct NE opinion was not “weird” as an application of special legislation provision. Borchers took the same approach you did, but he was a Dean and may be forgiven ignorance of the law. Also while I approve both anonymity and snarky in general, they do not seem to be appropriate when dealing with a court of whose bar you are a member.

  12. Earnest says:

    Harry. Pretty sure we don’t want the free market to set health and safety regulations. Free market should reward those bars with the coldest beer, great service, etc. not those with the best lobbyists. And it is interesting that you would call fours years of the state violating the constitutional rights of Big Johns and other bars a “victory”. Unless of course you have part ownership of a cigar/hookah bar.

  13. Anonymous says:

    Hey Earnest, get your facts straight, the bar in Lincoln with the cigar bar certification is now “Rich” not “Smooth”. It used to be called Smooth but then had a whole lotta legal issuues. Ciggaro’s in Omaha was another model citizen with the blessing from the state to allow smoking.

  14. Anonymous says:

    Brilliant insights HB for your first posting. A libertarian paradise is best represented by a cigar smoker blowing smoke in a pregnant waitresses face. Keep dreaming those important dreams.

  15. Oracle says:

    Wow! No my main point wasn’t addressed. The current system legally allows systems to be set up which depart radically from the one-person one-vote philosophy that most of our political systems operate under. With NPV this is impossible. Your only argument is that you prefer candidates to be forced to campaign in both rural and urban areas. Well, that’s a personal preference, not a constitutional requirement. In 2012 there were 8 swing states. You’re fine with the vast majority of candidate efforts only spent in 8 of 50 states??? This would not be possible with NPV. And your belief that candidates would only concentrate on urban areas is easily debunked. If true, statewide candidates in Nebraska, like Pete Ricketts, would have only campaigned in Omaha and Lincoln.

  16. View from the North says:

    Earnest, by your line of reasoning, we should ban golf in Nebraska, because it gives a place like Champions an advantage over your family saloon. The smoking ban initially took into account that most cigar smokers enjoy cigars for a completely different reason than do those addicted to cigarettes.

    The one argument that is missing as to those “harmed” by a specific law is the business owner themselves. A walk-in humidor (as required by this bill and maintained by all establishments listed) is a significant expense incurred legally, before the legislature stuck its nose in things. I don’t believe it’s the government’s job to shutter legitimate businesses, with very few exceptions, though I’m not as libertarian as Pat and Harry.

  17. Earnest says:

    I am just repeating what the supreme court ruled. Allowing smoking in cigar bars and not other bars is unconstitutional. You may not agree, but that is the law. The supreme court has ruled twice on this matter once when Marleybone bar brought suit against Jim Suttle’s law and then when big johns brought suit against Laugtenbaugh’s law. It now appears that T. Lawson is determined to make the same mistake. Instead of just accepting the rulings and moving on, will continue the tradition of ignorance and arrogance established by Suttle and Laugtenbaugh. Stakes are not near as high as when Corrections did this, but same kind of disregard for the law. Expect more from our government, but often disappointed.

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