Abortion

The easiest approach for politicians running for office to take when looking at a very divisive issue like abortion is to jump on the side most likely to win and yell louder than anyone else. That is a good way to campaign. But after a person is elected, it is not good government. The goal of good government is to figure out the best way to move forward and that involves all sides to an issue. A representative who takes pride in a "perfect record" on one side of an issue is not necessarily representing the district, just one viewpoint within the district.

The public is generally tired of the abortion debate. They want it to go away. The purpose for having a government and a House of Representatives is to figure out the right way to move forward not to play political games.

As part of my law practice, I ran a mediation service. A common misunderstanding of mediation is that its purpose is make the two sides compromise their positions to reach a settlement. The real goal of mediation is to find a way that both sides can get what they want with minimum compromise. One of the first principles of mediation is to focus on areas that both sides agree on rather than the points of disagreement.

I believe that when you get below the yelling, there are points where both sides can agree. To illustrate, some years ago my wife and I found out that our unborn child had some severe developmental problems, both physically and, probably, mentally. Our perspective was that, even though she had these problems, she was still our child, we loved her, and we wanted to continue the pregnancy. We read the medical literature so that we knew what to expect. We talked to parents of similar children and found that invariably among those we talked to they were happy that they had kept their children. We wanted our child.

This decision was not popular with our HMO. In is much cheaper to abort such children than to care for them after birth. Many medical professionals don’t want to deal with children that aren’t "normal." One doctor vowed to us that if our child was born while he was on duty, he would "do nothing that would serve to prolong the life of that child." (One woman we later counseled was screamed at by a nursing director for "subjecting my nursing staff to that monster baby.")

Our biggest support during this time came from the pro-life community (because we were not aborting the baby) and the pro-choice community (because they believed that the choice belonged to us, not to an HMO).

While this is a relatively small point of agreement, it surprises many people that the two sides could agree on anything at all. Since starting this campaign and being lobbied on both sides, I see the possibility of more substantial points of agreement, but that isn’t going to happen in an environment that is characterized by political maneuvering and sound-bite politics.

Even a mediator has a position (although generally we try not to express it). I characterize myself as pro-life. I believe (as did the court in Roe v. Wade) that there is a point in the pregnancy that the baby is clearly alive and that killing the baby after that time is the same as killing a child that has been born. The Roe court put this at the point where the baby "has the capability of meaningful life outside the mother’s womb." I also agree with the Roe court that it is difficult to place the "point where life begins" on a timeline between conception and viability. Everybody has their own opinion. Where I diverge from Roe is in the conclusion that a state legislature trying to provide legitimate protection for human life and dealing with that mass of opinion cannot err on the side of protecting life, but must err on the side of not protecting a baby’s life until the point that the court felt everybody must accept that the baby is alive.

I am somewhat less enthusiastic with the agenda of some in the pro-life movement which sometimes seems more intended to annoy the pro-choice forces than to promote their own goals. This isn’t a productive direction.

School Vouchers

Many parents prefer to educate their children outside of the public school system. Sending your children to private school or choosing to home school your children is expensive. It is a legitimate concern of parents who wish to place their children in private schools that they are paying money for public education, but the public education is not suitable, and they can’t transfer the money to something that helps their children.

On the other hand, the call for a pure voucher system has some problems. Some kids are more expensive to educate than others. Private schools, which can be selective in their admissions policies, can screen out the more expensive students. Those students will, of course, fall into the public schools. Private schools will be able to offer teachers higher salaries, better students, and easier classes and will undoubtedly be in a position to pull many of the better teachers out of the public schools. This is not a formula for improving public education.

In this valley, a number of school districts are offering reimbursement programs to the parents of home schooled children. Under these programs, the school district receives credit for the home schooled child’s attendance, meaning that they receive money from the state to help pay for the education of that child. The school district makes a portion of that money available to the parents to reimburse them for the purchase of school materials—usually about 50% of what the district is receiving from the state. The districts also provide some program for helping teaching parents and ensuring that the students are making acceptable progress. While these programs have had a mixed reception from homeschooling parents (largely because of strings attached to curriculum choices and similar issues), the model for distributing money is worth considering.

If we expand the concept, we could look at a model for financing education that is based on the number of school aged children in the district, rather than the number in attendance. (Yes, we may have to have offset for truancy). A fair percentage (say 50%) per student associated with the cost savings of not having to teach a student is made available to private schools for tuition offsets.

So what does this model do? It may eliminate much of the tension between public and private education. It may bring back voter support for school districts that are routinely missing funding elections by a few percentage points. It helps middle class parents that want to put extra money into their kids' education, but can’t afford private education under the current system. And, most importantly I think, encourages us to look at funding education as a bigger picture than we have.

Money for Schools

I believe that the perception by the public (who pays the bills for public education) reinforced by the perceptions of the teachers (who work within the system) is that in many districts the money is given not being used efficiently or effectively.

Teachers should not have to buy pencils for their classes out of their own salaries. The district should provide textbooks for its students. There should be desk space for every student. The library should have books on its shelves.

As a taxpayer, I feel like I am paying enough to provide salaries adequate to attract qualified people into education, supplies, textbooks, etc. for the schools. But my own experience says that the money is either inadequate or not being wisely spent because many of our schools have these problems.

Therein lies the problem that needs to be addressed. While no school district has huge surpluses of money, school districts in this district that have reputations for good administration seem to be able to get more money into the classroom.

Gun Control

The Second Amendment comes directly out the experience of the American Revolution. America would not have become independent without the people having the ability to protect their freedom. They feared that a powerful central government would be able to wage war on individual states or regions of the country. They also knew by historical example that the greatest threat to a democratic nation was that nation’s own army and that the people needed the ability to fight for and maintain their own freedom. The purpose of the Second Amendment is to ensure that is sufficient quantity, quality, and distribution of gun ownership to ensure the freedom of the nation, particularly from internal forces.

While the scope of the Second Amendment is quite broad, it is not boundless. It has never been broadly understood as creating a right for anyone to bear any weapon at any time under any circumstance. With certain exceptions, it has never been understood as providing a right for convicted criminals to have guns. Schools have never been required to allow guns in class. Even in the old West, it was common to require cowhands to check their guns with the sheriff when entering town.

A right also creates a responsibility. Reasonable rules to ensure that new gun owners have thought about what it means to own a gun, to ensure that gun owners know how to properly use their weapons, and to ensure that gun owners know the laws governing the use of the weapons are legitimate regulations within the scope of the Second Amendment, unless they are subterfuge for restricting gun ownership. Any hunter would teach their kid to respect what a gun can do and how to handle it safely. Not everybody who buys a gun has the advantage of having someone around to show them and that is important. We don’t let people drive cars without instruction either.

In between the constitutionally protected space where government action needs to be carefully curtailed and strictly safety areas, there are uses for guns that aren’t constitutionally protected, but are still legitimate uses for guns. Competitive shooting, hunting, collecting, etc. are legitimate reasons to own and use guns. The problem arises that some of the guns that are bought for legitimate purposes are used for criminal purposes either by their owners or by someone who acquires them.

Nobody is in favor of school shootings, street crime, workplace violence, or other crimes where guns are a weapon of choice as a result of their effectiveness, low cost, and wide availability. When guns are used in crimes, the public naturally wants to restrict access to guns by people who will abuse them. As a goal, that is legitimate. It is a lot easier to slap a title on a Bill, "The ‘No Guns for Criminals’ Act of 2001," than it is to keep guns out of the hands of criminals. (This, of course, is true of many types of legislation. How many "Tax Reform" acts actually reform taxes?) Too often we do "something" because "We have got to do something!" without thinking about what we are doing.

I am happy to support efforts reasonably calculated to reduce gun violence and to work with both anti-violence advocates and the NRA to craft legislation that is both constitutional and effective.

Gun registration laws do raise constitutional concerns because the government now presumably knows who has the guns. The rational for the registration laws typically revolves around restricting access to criminals and the ability to trace firearms used in crimes back to their owners. These are legitimate goals, but I think that some serious independent study needs to happen to determine whether existing registration laws are achieving any of goals.

Gay Marriage

The acceptability of homosexual behavior in our society is still hotly debated. Society has clearly judged that government has no legitimate business policing what goes on in our bedrooms. Decriminalizing gay behavior and even giving gays protection against certain types of discrimination speaks to limits that we believe that our government (and even our employers) should have in dealing with our personal lives.

Gay Marriage, however, is not asking for acceptance, it is asking for approval. It is not gays asking society to stay out of their lives, it is asking society to declare that homosexuality is a good thing—even to people who believe otherwise—and to enforce that declaration. Instead of big brother coming into people’s bedrooms, we have big brother, the thought police. One isn’t any more acceptable than the other.

Another consideration is that gays don’t represent the only alternative relational lifestyle that would like recognition under the marriage laws. Polygamy activists make arguments very similar to gay rights activists and, in addition, cite first amendment considerations. If polygynous and polyandrous marriages are recognized, recognition of group marriage follows by default. Complex marriage and other "intimate networking" advocates are around with similar arguments.

At some point, "marriage" in its traditional Western usage becomes overburdened. Our legal system was not designed around a broad definition of marriage. If we reach that point, government probably has no business talking about marriage at all.

Having said that I support the traditional definition of marriage, if a few states legalize same gender marriage, the Full Faith and Credit clause of the Constitution will undoubtedly come into play. Here is the problem, take the case of a couple "married" in one state and one partner wishes a divorce without paying spousal support. Can this person become unmarried simply by moving to a state that doesn’t recognize same gender marriage? Probably not.

Health Maintenance Organizations

As a former mediator/arbitrator, I have great respect for the ability of alternative dispute resolution to solve conflicts more cheaply, quickly, and often fairly than the traditional court system. However, the way that the arbitration clauses in HMO contracts are written, they actually give financial incentive to the insurance companies not to provide the level of service promised under their contracts with you.

Here is the problem: the HMO has a contract with its patient specifying a particular level of service that the HMO promises to give. If the HMO honors its contract by providing service to it patient, that costs money. If the HMO doesn’t provide the service, then the patient may take the matter to arbitration and the patient may win. In that case, the HMO will probably only have to pay out similar to what they would have paid to provide the service in the first place, but there is a good chance that the patient will never take it to arbitration and the possibility that the patient may not win even if they do. Taking this approach can be very profitable to insurance companies.

The courts realized this problem a number of years ago and established mechanisms for slapping insurance companies that engaged in these kinds of practice. However, these protections against unfair claims practices don’t apply to arbitration with the same force that they do in court.

Health Maintenance Organizations are popular in our district and can provide quality care at significantly lower costs than traditional insurance. The arbitration clauses are a significant part of why the costs are lower. Particularly, the right to arbitrate malpractice claims reduces their exposure to multi-million dollar jury awards and the lengthy, expensive appeals processes associated with those awards. This probably should not be disturbed. However, we need the ability to ensure that HMO’s honor their contracts and, while allowing patients to sue for breach of contract or for unfair practices is not the only way to provide that safety for patients, it is the tool that we have to bring the industry to the table.