Significant Public-Policy Determinations Being Legislated

April 29, 2011 

Legislation is the essence of public policy. Or perhaps, it’s the other way around. More likely, it’s a combination of each influencing the other. In any event, while the theory might be worth pondering, the practice has impacts and repercussions.

Two substantive issues unfolding during the last third of the 2011 session of the Nebraska Unicameral are good examples of the connection between legislating and forming public policy. In both instances, what’s best for the common good is unclear.

State legislators will determine the outcome on major proposals regarding funding for highways and roads (LB 84) and addressing the substance and process of collective bargaining as it relates to governmental employment (LB 397).

LB 84 is already pretty far down the road. In fact, as of the Legislature’s Easter-weekend break—with 22 days remaining in the session—it was on Final Reading, after withstanding extensive scrutiny and challenge at both of the first two stages of floor debate. LB 84 proposes to earmark for new roads and road improvements one-fourth of every cent of state sales tax collected, beginning in 2013 and continuing for 20 years. In other words, a portion of state revenue that otherwise would follow the longstanding normal course into the state’s General Fund for overall budgetary determinations and allocations instead would be diverted directly to the Department of Roads for its projects.

A quarter of a cent out of a state sales tax of five-and-a-half cents per dollar of purchase doesn’t seem like much, but projections are that it would generate $65 million per year. This would be in addition to the revenue that comes from the state’s gas tax.

Proponents of LB 84, led by Senator Deb Fischer, who is the chairperson of the Legislature’s Transportation Committee, say the move is bold by necessity; that current and projected infrastructure needs demand and justify the priority. To some extent, proponents are counting on more economic improvement and a better fiscal situation for the state’s next spending plan in 2013. Opponents, led by three members of the Appropriations Committee: Senators Danielle Conrad, Heath Mello and Jeremy Nordquist, counter that the economic presumptions are shaky and risky and that earmarking sales-tax revenue is bad budgeting policy and bad public policy, which will negatively affect funding for other purposes, including human services and education.

Those are legitimate concerns. While the need for road construction and improvements all around the state is beyond challenge, presupposed and premature prioritization of that need over more direct human needs portends of a lot of pressure for the Legislature in two years.

Nonetheless, LB 84 has shown considerable strength. The vote on advancing the bill to Final Reading was 36-12.

LB 397 was still a work in progress and still awaiting the first-round of floor debate as the Legislature returned to the State Capitol earlier this week. Stay tuned for this legislative history to play out. It could be as long and contentious a public-policy experience as the Unicameral has had in quite awhile. Not only is this matter extremely complex, but a lot of powerful interests are weighing in from numerous angles.

Under current public policy in Nebraska, state and local governmental employees can organize and bargain collectively, but they can’t strike. Pursuant to authority granted under Article XV, Section 9 of State Constitution, Nebraska uses a five-member, governor-appointed and legislatively approved commission—the Commission on Industrial Relations—to arbitrate public-sector employment disputes that reach an impasse. Its decisions are binding, but appealable into the courts.

From just about every angle, there is dissatisfaction with the process that implements the functions of the CIR. Section 48-818 of the state statutes is the target of a lot of criticism. It requires the CIR to use comparability as its decision-making standard; that is, comparing the facts of disputes to wages and working conditions prevalent among an array of similar employment situations. The commonly cited problem with comparability is its lack of predictability.

Most disputes are resolved without heading to the CIR, but even for those, critics say, resolution is too often influenced by anticipating what the CIR would do, which diminishes the interest of cost containment on behalf of taxpayers.

While it seems likely that LB 397 is on track to cause a major overhaul of the CIR process, some are poised to argue for its abolishment altogether and for greater, if not unlimited, authority in the budget makers, i.e., the elected governing bodies.

Where does the right balance fall as a matter of public policy and the common good? It’s that employer-employee balance that’s largely at stake on LB 397. It’s the reason why LB 397 is so significant, so challenging and so fascinating.

And finally… On April 26, one of the most delightful and special persons associated with the Nebraska Legislature retired. Sally Gordon decided it was time, at age 102. When she was 75, Sally became the first female member of the Legislature’s sergeant-at-arms corps and served with grace and distinction throughout her tenure. We add our salute, congratulations and best wishes.