Polling

Tribune Columnist Paul Rolly posts the following on his blog.

Getting Nervous?

Over the past few days, Republican state delegates have received survey questions from Dan Jones and Associates to determine what federal issues are important to them and their opinion of Sen. Orrin Hatch.

The survey, which obviously is being done on behalf of Hatch to determine his support among current state delegates, also asks whether delegates have a favorable or unfavorable opinion of President George W. Bush, Greater Salt Lake Chamber of Commerce Director Lane Beattie, Lt. Gov. Gary Herbert, Gov. Jon Huntsman Jr. and Sen. Bob Bennett.

That question is intriguing given the events of the past week in which Hatch is steadfastly sticking to the Bush Administration's plan to place a nuclear waste repository at Yucca Mountain, Nev., while his fellow Republicans are jumping off that horse and moving toward Democratic Sen. Harry Reid's attempt to keep the repository out of Nevada.

Bennett recently changed his position on Yucca Mountain and is now opposed to putting the repository there. Huntsman, in an interview with The Salt Lake Tribune last week, was critical of Hatch, calling his support of Yucca Mountain ill advised.

So Hatch, apparently, wants to assess where the delegates are on that issue and whether they appreciate his support of the Republican president who was overwhelmingly supported by Utah voters in his re-election bid last year. Or, are they warming to the Republican leaders who oppose Yucca Mountain and are becoming increasingly critical of Hatch?

The survey also shows that Hatch is having a little anxiety over the challenge State Rep. Steve Urquhart, R-St. George, has launched against him for the Republican nomination next year.

Tax Cut -- State Income Tax

As I've said before, it's time for Utah to give it's citizens a break on their taxes. The budget is sound, and we have surpluses.

As this article hints, the House is driving for a tax cut, without a lot of help from other quarters at this time. But, that's what makes the process enjoyable -- believing something will be good for the people and, then, working to make it happen.

Because the surplus is largely coming from the income tax and because reductions in income tax give the largest return in terms of future economic activity, this seems like the appropriate place to cut. Most Utahns paying income tax quickly fall into the top bracket (which has not been adjusted to keep track with inflation) and pay the highest rate. By not adjusting the brackets to keep track with inflation, Utahns' effective tax rate actually increases. Even if there weren't such high surpluses, adjusting the brackets would be an appropriate thing to do.

No Child Left Behind

Below is the text of an e-mail message I received today from the Utah State Office of Education. Though long, it provides great information on No Child Left Behind and how Utah is doing.

Dear Public Education Supporter:

You’ve probably already read about how well Utah’s public school students performed on this year’s federal No Child Left Behind Act’s adequate yearly progress (AYP) report. State Superintendent of Public Instruction Patti Harrington asked that I send you some more information about the report so you’ll know just how well our teachers and students are doing, and in what areas we still need to improve.

I know your time is valuable, so I will start with the highlights and leave the explanation for later in the letter.

805 of 923 schools, or 87 percent, made AYP this year

The 87 percent of schools that made AYP did so even while academic targets in both math and language arts were raised

Of the 13 percent of schools that didn’t make AYP, 39 percent (or 59 schools) missed AYP in only one category; in other words, 92 percent of Utah’s public schools either made AYP or missed in only one category

By far, the biggest group of students to not make AYP were students with disabilities in the category of language arts; this was followed by students with disabilities in math and then by economically disadvantaged students in language arts

I have attached a document that will let you look at pie and bar charts to give you further information about which students in Utah are not making AYP and in what areas. To help you better understand how those numbers are generated, here is some background:

What is No Child Left Behind? No Child Left Behind (NCLB) is the sum of the federal rules governing public education. Before President Bush signed NCLB into law in 2002, the act was known as the Elementary and Secondary Education Act (ESEA). Federal education rules, for the most part, have traditionally dealt with education equity and students with disabilities. Under NCLB, all schools were required to annually test all students to ensure their proficiency in language arts and math. States were allowed, within parameters, to define proficient, and, again within parameters, determine how all students could reach full proficiency by the year 2014. Utah uses the existing criterion-referenced tests (CRTs) given annually to students to measure proficiency. Students who pass the test are considered proficient. States who do not meet the testing requirements of NCLB jeopardize their federal school funding. In Utah’s case, it’s about 8 percent of our funds, most of them directed to Title I schools (schools where there is a high rate of poverty).

What is AYP? Utah must have a certain percentage of students be grade-level proficient in math and language arts based on CRT scores. From 2002-2004 in elementary schools, Utah’s goal was to have 65 percent proficient in language arts and 57 percent in math. For 2005, that raised to 71 percent in language arts and 64 percent in math. For secondary students, the 2002-04 goals were 64 percent in language arts and 35 percent in math. In 2005 that goal was raised to 70 percent in language arts and 47 percent in math. Utah and other states have very little leeway in testing students with disabilities (that is, students who receive special education services) or students who are not yet proficient in English. Many states have cried foul over demanding students who have learning disabilities meet the same standard as other students or that students who are not yet fluent in English take tests in English. Regardless, NCLB will require all states to have 100 percent of students proficient by 2014. We continue to move incrementally to that goal.

Why is Utah’s secondary student math goal so low? Utah is in a unique situation for secondary math. The subject on which NCLB requires us to test high school students is Algebra. In Utah, most students will take Algebra before they enter the ninth grade, the first year that counts as high school. In effect, the only high school students we are testing for NCLB in math are students who are already struggling in the subject. Though the goal is lower now than it is in other areas, it will still rise to 100 percent by 2014. Most students, however, won’t be part of that group since they passed Algebra in junior high or middle school.

How do you determine if a school has made AYP? The first step is participation. If schools don’t test 95 percent of their students and 95 percent of each of their existing subgroups (Asian, African American, American Indian, Caucasian, Hispanic, Pacific Islander, Economically Disadvantaged, Limited-English Proficient and Students with Disabilities), then the school does not make AYP based on participation regardless of the students’ test scores. If any one subgroup fails to meet participation goals, the school does not make AYP.

Step two is academic achievement. If 65 percent of a school’s elementary students (and 65 percent students in each and every subgroup) pass their language arts CRT, and if 57 of your elementary students (and 57 percent of students in each and every subgroup) pass their math CRT, then the school makes the academic achievement AYP. The percentages change for secondary students. If any one subgroup does not meet the academic goal, the school does not make AYP.

In short, there are 40 ways to not make AYP (whole school plus, potentially, nine demographic components times two ways to miss [participation or academic achievement] times two tests [math and language arts]) and only one way to make it.

I note that schools can either make AYP or make AYP with safe harbor. What’s the difference? Safe harbor is a way of acknowledging that not all schools are starting the race to full proficiency from the same place. There are some schools in Utah where, due to whatever advantages, most students area already proficient. Other schools, due to whatever disadvantages, have a long way to go just to achieve our interim proficiency goals. Safe harbor allows schools who have not met the proficiency goal, but who have moved scores up by at least 10 percent to claim their stake in AYP. Safe harbor celebrates growth in school test scores. It’s something to be proud of.

Why does there appear to be a problem with students with disabilities making AYP? We think the problem is definitional. NCLB, again with very few exceptions, requires we test all students on grade level for proficiency. If a student has no learning disabilities, we agree with that level of testing. If the student does have documented learning disabilities, then we think it unfair to test that child on grade level. If, for example, a sixth grade student is capable of reading only on a third-grade reading level, Utah’s position is that the child should be subject to the third grade language arts CRT. NCLB insists the student be tested on sixth grade material.

What do you see in this year’s AYP report? First, the Utah State Office of Education sends out its congratulations to our teachers, students and parents. This is a great report. We raised the bar and the vast majority of schools are still clearing it.

Obviously, we are concerned about our students with disabilities. There are about 52,000 such students in Utah public schools and we won’t forget about them, but we’re still not sure AYP is adequately measuring their achievement. We will continue to monitor this situation.

We also have concerns about the number of limited-English proficient students not making AYP, but again, if we can keep them in our system long enough to bring them to fluency in English, I’m confident their test scores will increase.

One of our biggest concerns is the number of schools missing AYP because of their economically disadvantaged students. Unless we can do more for these students, unless we can get the teachers and other resources we need to boost achievement here, the cycle of poverty will perpetuate in our state.

The achievement gap between white and Asian students and other ethnic minorities also continues to be problematic, although it doesn’t show itself as well in the AYP report because of the relatively small numbers of ethnic minority students in Utah. This must continue to be an area of focus for us and for our local districts.

I hope this report has been helpful to you. If you would like to see individual school AYP reports, they are available online at http://www.usoe.org/ under the heading “School Report Cards,” or directly at http://bionic.usoe.k12.ut.us:8080/u-passweb/UpassServlet.

We at the Utah State Office of Education are always happy to answer your questions as well.

Leadership and Nuclear Waste

For years now, I have been saying that storage of nuclear waste at Yucca Mountain would be as bad for Utah as storage in Skull Valley. One of the biggest problems with moving the waste is the chance of an accident while the waste is being transported. Yucca Mountain, though, would mean even more transportation miles through Utah than would Skull Valley. So, it makes little sense to fight Skull Valley on one hand and eagerly support Yucca Mountain on the other.

Regarding the success of the Yucca Mountain v. Skull Valley fight, Senator Hatch earlier said, “I don’t think it comes down to politics.” Well, okay, you run with that.

For the rest of us, our best option seems to be to join with Nevada and Senate Minority Leader Harry Reid and work to keep the waste out of the West. Now, it looks like Senator Bennett also is seeing the light. “However much an idea of a single nuclear waste repository at Yucca Mountain made sense decades ago, it is now clear that it does not and we need to move in a different direction.” -- Senator Bennett, September 20, 2005.

With an election around the corner, any predictions on how long it will take Senator Hatch to flip?

My prediction: less than a month.

Stop Spending My Kids' and Grandkids' Money

People are wrong to say that Congress is spending money like a drunken sailor. Drunken sailors spend everything they have in their pockets. Congress, on the other hand, is intent on spending everything we have in our pockets and then moving on to everything our kids and grandkids might someday have in theirs.

Likewise, comparisons between Congress's fiscal restraint and Santa Claus are misplaced. First, no one would waste breath suggesting that Congress's fiscal restraint is real. Second, Santa operates under a budget.

The federal government was right to quickly provide emergency relief for the Gulf Coast to pay for things like food and shelter. And additional relief is in order to rebuild critical infrastructure (relief, with tight restrictions and close oversight). But, mercy, how about looking for some offsets elsewhere in the budget to fund this? We have a choice: either we fund it now with offsets or we pass the buck to future generations.

Every time, our federal government's choice is to pass the buck. Why? Because it's easier than telling interest groups "no."

Not counting spending for Iraq, the federal budget has grown 37% in the last 5 years. With the national debt adding up not in millions or billions, but in TRILLIONS, no one could make a serious argument that we aren't mortgaging our Nation's future. It is irresponsible, and it needs to stop.

I am encouraged that people are questioning particular federal expenditures. But, there is a broader issue. Along with questioning pork-barrel expenditures, why not go further and question the existence of certain federal agencies that attract the pork? Do they perform essential services that the private sector or state and local governments could not provide?

For example, scrutiny (by the people, not by Congress) is being applied to the highway bill. Good. Maybe increased scrutiny of particular expenditures will reduce some pork out of this year's highway bill; but what about next year's bill or 5 years from now? Highway bills always have high fat-content.

So, shouldn't we question the need for the fat-attracting agency? With a built-out national highway system, what does the existence of the Federal Highway Administration bring us (other than patronage opportunities for Congress) that the private sector, states and local governments couldn't provide? Cut the agency, cut the fat that flows through the agency, cut the mandates and cut the associated tax burden. We'd be better off.

UPDATE (later): The always-dazzling Sen. Joe Biden asks, "Where is he going to find roughly half a trillion dollars over the next several years for Iraq and for Katrina? I think we're not leveling with the American people."

Three points, Joe. First, thanks for admitting Congress does not level with the American people; we knew it, but it's still nice to hear it. Second, can the "he" stuff; re-read the Constitution and step up to the plate; Congress is in charge of spending. Third, you'll find the money where you always do; in our kids' and grandkids' future.

Judicial Activism and Its Cure

What is judicial activism? One commentor pointed out that most people define judicial activism to be any court decision they don't like; conversely, any outcome they do like is simply great jurisprudence, no matter how far beyond its authority a court might stray to reach that outcome.

Better understood, judicial activism means courts stepping beyond their authority to interpret the law, in order to actually make law.

Law-making should occur in legislative bodies, not courts, because legislative bodies give voice to the people. The public can attend hearings, provide input, and lobby for a particular result. Also, importantly, if the people don't like the result a legislative body reaches, the people can vote and work to remove the offending lawmakers. This places decision-making authority with the people, not unelected, unreachable judges.

Yesterday, a New York Court provided a great example of judicial restraint. The Court handed down an opinion in a case where Plaintiffs asked the court to smack some power companies for allegedly contributing to global warming. Even after assuming that the Plaintiffs' allegations were correct, the Court ruled that Plaintiffs were raising questions that should be determined in the open, political arena. Bravo! Great example of judicial restraint. Does this mean the court is all for global warming, as many would charge? No, it means the court believes in constitutional government and the people's ability to influence policy.

It would be nice, if more courts shared the sentiment. But what if they don't? While courts steal power from the people, are the people and lawmakers forced to sit idly by, gripe and wring their hands? No, not at all. Constitutions aren't intended to work that way.

Lawmakers control purse strings. If lawmakers were to show that they consistently cared about the people's ability to affect policy, courts would come in line. If lawmakers noted and responded every time a court handed down utterly stupid decisions (like the Pledge of Allegiance decision), if lawmakers cut funds to consistently bad circuits (like the 9th), and if lawmakers otherwise asserted the specific control they have over courts (for example, ALL lower courts in the federal system), courts would be more restrained. Judges would carp about it -- just like members of the other two branches do when they are checked -- but matters would improve.

Why, then, doesn't Congress assert itself, in order to get courts in line? Because Congress doesn't care. This was clearly illustrated in this sorry debacle. There, the two most-senior members of the Senate Judiciary Committee asked the Supreme Court to make law in the copyright arena, despite the fact that the Constitution specifically says Congress will make such laws. Why would they do that? Because Congress refused to pass the copyright bill they were co-sponsoring to address the issue.

So, yes, as the commentor mentioned, many people -- including those who really should know better and should do better -- define judicial activism in terms of outcome, rather than process. If the people respect their ability to participate in policy making, they should demand more.

UPDATE (night): A commentor on the last post linked to this. Please check it out and ask yourself whether you want more of what you've got the last 29 years. Ya, Judge Karlton is an activist; so, shouldn't something be done about it? Utah, how about electing a senator who won't ask the Supreme Court to pass his legislation and who will do more than merely gripe about judicial activism? It's time for change.

Technology, Politics and You

Gavin Clarke, of The Register, interviewed me for an article he recently published.

For more, here are the questions and answers from that interview:

1. Your web site described Senator Orrin Hatch as "bad for the internet" - could you explain that in a little more detail? What statements or pieces of legislation endorsed by Hatch are bad?

Senator Hatch has shown that he doesn't understand the Internet or, at least, he does not welcome the kind of democratizing tool it can be. This attitude is clearly shown by sponsorship and promotion of the Digital Millennium Copyright Act (DMCA) and the Induce Act. It is shown by the amicus brief he filed with the Supreme Court in the MGM vs. Grokster case, essentially asking the court to make the Induce act law through court action. These actions favor big, entrenched business over small, innovative business.

I'm no friend of people who break the law and I have great respect for property rights, but many features of DMCA and the Induce act simply go too far, stifling innovation and potentially derailing our future in an effort to protect outmoded business models.

2. Do you see Hatch's comments as a danger for the producers of technology (because it potentially curbs their market and ability to innovate by making them legally responsible for the actions of their users) or more for the users of technology (like file sharers who are seen as a threat to copyright holders)?

I'm primarily concerned about the danger to technological innovators. I think the threat of potential copyright suits by Hollywood and the Recording Industry makes it difficult for new businesses to compete. Small businesses simply won't bother to enter the fray or will fold at the first threat of a suit -- even when what they are doing is legal.

Moreover, the continued erosion of copyright provisions, like fair use and the extension of copyrights to multiple decades, stifles creativity in other areas as well. Our culture is built on top of the culture of the past. Provisions of DMCA lock that culture away into little boxes -- it's no longer part of our culture. It's someone's property. Walt Disney built an empire by taking public domain works (like Cinderella) and dressing them up with his imagination. This is a crucial part of the western tradition. DMCA ensures that no one will ever be able to do the same thing to his creations and millions of others.

3. What's your view on legislation like the proposed Consumer Broadband and Digital Television Promotion Act (CBDTPA) and so-called Induce Act?

In principle, I disagree with legislation that tries to enforce public policy by mandating certain technologies or requires manufacturers to include specific technologies. While these seem like easy solutions to people frustrated with real problems, they are impractical because technology changes too fast. With respect to CBDTPA and Induce, the potential unintended consequences are simply too great.

4. It seems there is a trend for US politicians to back potential legislation that would make it an offense to distribute computer devices that permit copying of content (like Senator Ernest Hollings' CBDTPA and Orrin Hatch's Induce Act). Is this a comment on the power that Hollywood has to lobby politicians? And is this also a comment on the knowledge (or lack there of) among these politicians of IT, computers and the information economy?

I think it's a combination of the lobbying power of entrenched businesses and the lack of appreciation for how fundamentally different the economy and business are today than they were when these men left real-life and entered the beltway.

5. What can, or should, the IT sector do to raise the level of awareness and education among US politicians on these issues?

Step one, elect me. People who understand these issues need to take the responsibility to educate their elected officials – one way or another. Sometimes, that can happen when elected officials willingly interact with constituents. Otherwise, it needs to take place at the ballot box. I'm confident that if the technical community were to help turn out Senator Hatch, 534 other people in Washington would pay closer attention to technology in the future.

6. What is your view on file sharing? Is it a good thing, is it a good thing with limitations, or is it a bad thing?

File sharing technology is value-neutral, and it is amazing. The technology should be lauded. Like most good things, though, it can be used in inappropriate ways. In those cases, the actions, not the technology, should be discouraged.

7. Related to that, do you have a view on the concept of the creative commons - the concept of sharing of ideas via the internet community?

I'm a huge supporter of the Creative Commons and people's ability to decide what rights they retain to works they create. The potential upside for society fostered by this movement is limitless.

8. What can, or should, US politicians do to help foster the blogging/internet community as a community?

Politicians can best help blogging and the Internet community by staying out of the way. Politicians usually are a few steps behind society. When it comes to the Internet, they are laps behind. I'm much more interested in exploring what bloggers and the Internet community can do to promote better representation and better government. The possibilities are nothing short of revolutionary. I've enjoyed my pioneering role as a blogging legislator – as have my constituents. I look forward to opening the Senate up to the view of the people.

9. Do you have any tech backers for your campaign?

As you would expect, I have many tech backers, but more are always welcome.

10. Can you update us on how much support you have attracted from internet users, and what kinds of issue they have raised?

I've attracted significant support from Internet users. While their issues run the gamut, they do share a common chord of wanting a Senator who understands the role that the Internet and innovation play in today's economy and having someone there who will fight to protect that.

Momentum

Good things are happening with the campaign. The Wall Street Journal notes, "Conservatives from all over the country are flocking to [Urquhart] for several reasons, ranging from Mr. Hatch's broken 2000 campaign promise on embryonic stem-cell research (he now favors it) to his divisive roles on pro-life and family issues for the past three decades."

A few other news stories are here and here.

As mentioned in the Standard-Examiner, if an incumbent wants to run on the basis of how long he's been in government, then he should pick one of two alternatives. One, he should admit he's not very influential in the process and has little responsibility for what government is doing or, two, own the direction government has taken during that time -- say, "I got us here! How do you like it?".

Part of the reason I'm running is that I'm tired of hearing, "I would have done X or I was this close to doing Y, but those other folks beat me; aren't they rotten for winning again?" Just like in other areas of life, people should expect results from government leaders.

The KSL story has this peach: "Sen. Orrin Hatch, (R) Utah: 'Frankly, I’m in a position where I could help our state.'" Yes, it's called the Senate. And people are tired of waiting.

Big Road Victory

Utah won a big victory in its battle to preserve rural roads and rural lifestyles.

This battle concerns special interest groups' campaign to manufacture wilderness by eliminating roads. The roads in question were established across federal lands pursuant to an 1866 law intended to promote settlement of the West. The district court, rather than interpret the law as it had been written in 1866, agreed that BLM could impose newly created standards to determine whether roads were actually roads. No surprise, the result was that counties did not meet the standards that had been newly created specifically to eliminate roads.

For example, BLM and the special interests would have required that the roads be constructed "mechanically" -- a standard that undoubtedly would leave 1866 lawmakers scratching their heads. Also, the wilderness advocacy groups argued that the roads were invalid because they don't go anywhere important (like to WalMart, I guess). So, where do the roads go? To overlooks of land proposed by the special interest groups for wilderness designation. Yes, if you follow the reasoning, wilderness advocates argue that WalMarts are more important that wilderness areas, but there you have it.

The Court of Appeals properly ruled that the validity of these roads must be determined according to the standards that were in place when the roads were created, not the revisionist standards created after the rights had been established. Now, interests and activities built up around these roads can continue. Though I see the spinmeisters are working hard, this decision simply means that the rule of law won.

Though the onslaught was vicious, efforts by the Clinton Administration to undo rural Utah communities by redefining roads and wilderness have fallen short. But as the comments of the special interest groups indicate, there are many, many battles left to fight. Rather than leave the issues up to judges and subject the rural counties to endless litigation, Congress needs to step up to the plate and end these disputes.

Golden Parachute

Rep. Dave Clark proposes to cut legislative retirement benefits. Good for him! Service is an honor, not an entitlement.

Relief Efforts

Part of the reason I love this blog space is the opportunity it gives to open the doors to government. Government works best when people are able to watch it and participate in the discussions. I welcome people challenging my thinking; it helps bring me back to where I'm supposed to be. And it allows people to better see where I am; they can agree with me, work to correct me, support me or throw me to the curb. It's their choice. In the end, through more transparency, the people will end up with representatives in touch with their desires.

The last post raised a spirited discussion on the role of the federal government that I want to bring to the main page. A commentor is ready to throw me to the curb, because I believe that the federal government does have the power to appropriate money to the Gulf Coast flood relief (just like the first post-Constitutional Congress appropriated money for a lighthouse in Chesapeake Bay, because it was good for the general welfare).

While the commentor believes such relief is outside the federal government's Constitutionally-enumerated powers, I cite Justice Rehnquist and Scalia (South Dakota v. Dole) for the point that "the constitutional limitations on Congress when exercising its spending power are less exacting than those on its authority to regulate directly." While I believe Congress routinely violates the Constitution by regulating outside its enumerated powers and by coercively regulating through overreaching mandates attached to spending provisions (e.g., No Child Left Behind), the spending power is broader. The key to controlling federal spending, therefore, is the ballot box.

If someone doesn't want to elect me because I'd support relief efforts in the Gulf Coast, so be it. Personally, I think we need better judgment and more restraint in other areas, so that the federal government will be better prepared to do the things it should. It can't do all things, and it makes a big mistake trying.

Regardless where you fall on this constitutional debate, I encourage all to support private relief efforts. Links to relief organizations are provided in the post below.

New Orleans

My heart goes out to the people suffering on the Gulf Coast. The scope of this tragedy is absolutely heart-breaking.

Those of us far away can't lose focus that many great acts of volunteerism and heroism are going on. With private relief efforts hitting full-stride, we'll get on top of this situation and start recovering.

There will be time for criticism. We will learn from this and do better in the future. Now, though, each of us must help in some constructive manner.

Here is a link to FEMA's list of approved charities. Locally, KUTV is collecting funds at 1-877/908-0680. Also, Wells Fargo is collecting funds in all of its branches. God bless the victims.