April 29, 2011
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
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
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
You can contact Jim at the
Nebraska Catholic Conference, 215 Centennial
Suite 310, Lincoln, NE 68508;