Tuesday, September 30, 2008

Excessive CEO Pay

As discussions over the bailout continue in the midst of yesteday's defeat in the U.S. House, the issue of excessive CEO pay and benefits has come to the forefront. The idea of CEOs bailing out on their responsibilities before their companies crash, killing stockholders and employees alike, looks bad enough. Bad though turns to outrage when you consider that many of those CEOs are descending with golden parachutes to a fabulously wealthy retirement.

Liberals are outraged and demand that there be special taxes on CEO pay or some other limit put on the compensation. Many conservatives claim that the free market determines the CEOs salaries and that the high salaries and benefits are needed to attract quality individuals to be CEOs to the companies.

While the socialistic tendencies of the liberals can be discarded as so much rubbish, a philosophy rejected soundly by history, conservatives likewise are off base. The premise behind the position - that the free market is determining CEO salaries - is simply wrong.

Who decides CEO salaries? The Board of Directors of a corporation generally decides a CEO's salary and benefits. Who sits on those Boards? Well the answer with regard to most large corporations is CEOs and other high executive officials of other corporations.

Executive pay is not deterined by the free market but rather by a "you scratch my back, I'll scratch your back" philsophy. CEOs of failing companies still make huge salaries, not because of performance or the need to pay to attract the talent, but because their friends are sitting on the Board, friends I might add who expect the same consideration when it comes to their executive compensation.

Rules are not always evil things. Properly enacted and enforced, rules can enhance, instead of hindering, the free market. Rules prohibiting CEO types from sitting on Boards where they can rubberstamp each others outlandish pay and benefits would seem to be a regulatory reform worth considering.

The Real Story of the Decline of Grass Roots Partisan Politics in Indiana

Today’s Indianapolis Star bemoans the precinct committeemen as an “endangered political species." The piece written by Will Higgins does an excellent job of discussing the duties of PCs, but misses the mark when talking about why the position is no longer as powerful as it once was. He cites to “professionalism of government” as the reason PCs lost their clout. He then quotes former Republican State Chairman Rex Early who points, rightfully so, to the emphasis on TV, radio and direct mail, rather than the work of PCs as a reason for the decline in influence of the grass roots workers.

All are good points, but they are not the major reason why the PCs lost power. Rather it was a change the General Assembly made to the law in the middle 1980s that effectively stripped power the power from precinct committeemen in favor of county chairman.

Prior to the middle 1980s, PCs were elected every two years as were county chairmen. PCs were elected in May, and then assembled at a county convention the next month to elect the county chairman and other county party officials. If a faction in the party wanted to dump a county chairman, you simply ran a slate of committeemen at the primary. It was a very democratic system that while endangering county chairman’s jobs, infused the grass roots with energy. Further, real PCs who worked the trenches were the ones who voted at the candidate slating conventions used in Marion County to endorse candidates. PCs held real power.

Two bills pushed through during the middle 1980s changed all that and greatly undermined grass roots party politics. The term for PCs and county chairman was changed from two to four years. he election for county chairman then was moved to March in an off year, three years into the election cycle.

Under Indiana law, vacancies in PCs position are appointed by the county chairman. Vacancies in those positions and turnover among PCs are quite high. So by the time the 3rd year of the cycle rolls around most PCs voting at the county convention are not elected to their positions but are appointees of the county chairman. In other words, the county chairman gets to pick most of the very people who will be voting for the county chairman.

The changes also had an effect on Marion County candidate slating and the clout the PCs once had in that process. Rather than being major players in slating as they once were, the elected PCs get their vote canceled out by cores and scores of “mummy dummies”, committeemen who are appointed by the county chairman solely for the purpose of attending the slating convention and casting a vote for a certain candidate. Those committeemen often do none of the grassroots work that the elected PCs do. In fact, Indiana law does not even require them to live in the precinct they are supposed to represent. Not only have I seen “mummy dummies” appointed to vote at slating who did not live in the same township, I’ve seen people from other states attending Marion County slatings and participate.

To sum up, the changes in the law in the 1980s gave the Marion County Chairmen, both Republican and Democrat, much greater clout in slating contests. It also made it virtually impossible for PCs to get elected and then oust a county chairman. The cost of increasing the power of the county chairman in the middle 1980s, has been to devastate the strength of grass roots partisan politics here in Indiana. If party leaders are serious about revitalizing and strengthening political parties , they might consider reversing those changes.

Sunday, September 28, 2008

Democrats & Civil Rights: A Shameful Legacy

Today, I recalled a conversation I had a couple years ago. I was in my health club locker room resting after a vigorous workout. A few lockers away from me, a conversation about politics taking place. The speaker, an African-American man of about 55, spoke passionately about the upcoming election declaring he would never vote Republican. When asked why, he said he remembered traveling as a young man through the South and encountering segregated hotels and “whites only” signs in restaurants. He said he never forgot what that experience was like. He blamed Republicans for supporting Jim Crow laws that made legal segregation and discrimination possible.

A wiser man would have bit his tongue and let the comment go. Remaining silent though doesn’t always come easy to me, especially when the comment I knew was blatantly historically false. I politely pointed out to the man that those southern elected officials he complained of were not Republican, but were Democrat. He accepted my historical correction without much comment. I doubt I changed his animosity toward Republicans though. I walked away from that experience wondering how many people believed that the history of the Democratic Party was one of valiantly defending civil rights while the Republicans fought to preserve the offspring of slavery – legal segregation and discrimination. In fact just the opposite is true.

The Democrats' history on civil rights is a shameful one. After the close of Reconstruction in the South, the Democratic Party took over the region by threatening and intimidating Republican elected officials and voters. During Reconstruction, blacks in the South voted overwhelmingly Republican. Many of the Republicans elected from the South were black. The end of Reconstruction brought the curtain down on two-party competition in the old states of the Confederacy. For more than the next 100 years, the Democratic Party was the only party in the South.

During that century of one party dominance of the region, the Democrats enacted laws mandating segregation. Any attempts blacks made to reassert political power in the region were curtailed by numerous measures adopted by Democrat-dominated legislatures. These included poll taxes, the “White Primary,” literacy tests, etc. Locally, Democrat officials blocked blacks from voting by harassment and intimidation of those who dared try to register. Even as late as the 1960s there were counties in Mississippi, for example, that, although they were majority black, only a tiny percent of those blacks were registered.

President John Kennedy, far from being a leader in the civil rights arena, was dragged kicking and screaming into the debate on the issue. As a Senator, he had opposed a federal anti-lynching law. As a candidate for president he had not supported civil rights legislation for fear of angering white Democrats in the south. It was only when the political winds changed in the early 1960s that JFK came out in favor of the civil rights bill.

The Civil Rights Act of 1964 and Voting Rights Act of 1965 are seen as the triumph of Democrat President Lyndon Johnson. But in fact, both bills enjoyed much wider support among Republicans than Democrats. Over 80% of Republicans supported those two bills, while Democratic support was in the low 60s. The key member of Congress who helped carry those bills was not a Democrat, but a Republican, conservative Senator Everett Dirksen of Illinois. Southern Democrats had conducted a filibuster against the bill. Dirksen and the Republicans helped break the filibuster.

The other day, I heard a commentator say that after the civil rights bills, the Republicans immediately took over the South and have dominated it ever since. That simply isn’t correct. Although Republican presidential fortunes in the South turned around in the 1970s, Democrats continued to dominate the region at the other levels of government. It’s only been within the last 20 years that Republicans have become competitive with Democrats in Southern congressional and state legislative districts as well as state-wide offices.

In the political spin Democrats use, Republicans started winning the South because it adopted the racist and segregationist policies that Democrats had abandoned. It is simple-minded rhetoric, backed up by no proof whatsoever. The fact is that many Democrats in the south only voted Democrat because of the history of the Civil War and the fact the party post-Civil War pushed racist, segregationist policies they favored. When the Democrats abandoned these racist, segregationist policies, the reason these conservative voters were voting Democrat was removed. Southerners did not start voting Republican because the GOP adopted the Southern Democrats racist agenda. They started voting Republican because Democrats abandoned their racist agenda.

I have always said that the greatest spin in political history is how the Democrats have persuaded people that their party in fact was the great champion of civil rights. History says otherwise. The fact the Democrats have nominated an African-American for President, speaks well that the party of slavery and segregation has taken the final step in casting aside its shameful racist history. For that, everyone, Republicans and Democrats, should applaud.

Saturday, September 27, 2008

Message to McCain: Put Palin in the Game

The final chapter of the 2008 campaign will be a post-election re-evaluation of the strategies used by the presidential candidates. Post-election analysis is an easy thing for political analysts. Let me though try to take a stab at pre-election analysis regarding a big mistake McCain is making.

The VP selection of Sarah Palin has been thus far the single best moment of the McCain campaign. She brought energy and a freshness to the Republican ticket. She appealed to conservatives in a way that McCain could not. The public fell in love with her. In a brief period, she became more of a celebrity than Obama.

Then the McCain people put her under wraps. They limited her interviews and instructed her not to take questions from the media. The fear was that her inexperience on the campaign trail would lead her to say something that might have to be retracted, clarified, or further explained. You know the sort of thing called a "gaffe." For an example, see Vice President Joe Biden who commits one nearly every time he opens his mouth.

Biden actually is a good example. Here is a guy that, even though he's been a Senator for most of my life, is constantly making verbal mistakes. Yet the media and public forgive him and move on because he doesn't back away from answering questions. Despite the gaffes, the Obama people know to let Biden be Biden. Restricting Biden's press contacts would cut into his effectiveness as a campaigner.

That's a lesson the McCain people need to learn. Will Palin make mistakes on the campaign trail? Absolutely. No one expects her to have the accumulated knowledge of a McCain or Biden on the issues. People and the media will forgive mistakes and move on. What can't be forgiven is if McCain leaves his star player on the bench during the most important campaign of his life. It's time to put Palin in the game.

Thursday, September 25, 2008

Recommendation to Indiana General Assembly - Drastically Modify or Repeal Notice of Tort Claim Requirement

We in the legal profession know the requirement well. When you sue government in Indiana, you usually have to first serve the entity with a Notice of Tort Claim. The idea behind the requirement is a noble one. If you think you have a lawsuit against government, it is best to notify government officials first so they can conduct an investigation and possibly work out a settlement before government gets drawn into expensive litigation.

It's a noble idea that has gone horribly wrong in practice. One problem is that the public generally does not know about the strict deadlines for serving the notice. Before the person gets to the lawyer's office, quite often the deadline has passed. Even most non-lawyers in Indiana know the typical 2 year statute of limitations for filing most lawsuits in Indiana. The much shorter notice of tort claim deadlines - 180 days for suing local government and 270 days for suing the state - are not known by most people and are frequently missed. Missed notice of tort claim deadlines are the weapon that government lawyers use against people simply wanting their day in court.

My feelings about the notice requirement would be different if the law was actually being used as it was intended. For example, let's consider Notices of Tort Claim filed against the State. The Indiana Attorney General's Office is responsible for investigating those claims. Of course, the Attorney General's Office is also the office charged with providing legal representation to the state when the tort claim becomes a lawsuit. What are the odds that the AG's office is going to conduct an investigation and then produce information and an opinion harmful to the AG's efforts at later providing legal representation to a state agency that does not want to settle? Don't worry...it never happens. Or I should say an actual investigation never happens. I do not know of a single instance in my years of legal practice where the Attorney General's Office (regardless of whether it was occupied by a Republican or Democrat) has ever conducted an actual investigation of a tort claim to determine if it had merit. No attorney I talked to could remember any instance of an investigation of a tort claim being conducted, much less a settlement being reached prior to litigation...which is the whole purpose of the notice of tort claim.

A year or so ago, I served the Attorney General's Office notice of a whistleblowing and wrongful discharge claim I had against the Indiana Department of Insurance. I provided the AG's office with extensive details of the claim, including witness, exhibits, and the specific legal violations. No discernible effort was made to look into the facts I cited or to talk to the witnesses I identified, including me. At the end of the 90 days, I received the typical form letter all of those of us who file tort claims receive a letter saying that an investigation had been conducted and the claim had found to be without merit.

I was not surprised, to say the least. As an attorney, I knew to discount the statement in the letter that an "investigation" had been conducted and my claim found to be without merit. But would a lay person also know not to take seriously the statement that an investigation had been conducted and the claim was found to be meritless? Probably not. Besides the facts of the claim, what if a person is given false information regarding the law? Yesterday I ran across a letter sent by the Attorney General's Tort Claim Division which gave the individual the blatantly false legal opinion that because the state had contracted out medical services in the prisons to a private company, the State could not be held liable for wrongdoing by the private company in rendering those services. Wanna bet? It seems morally wrong to give people false information about their claims, especially while not disclosing the conflict with being a supposedly objective investigator of the facts and an advocate on the same case.

The only area where the Notice of Tort Claim requirement spurs an actual, serious investigation is, in my experience, with local government. Generally that's not true with bigger counties and cities that get sued all the time, but with towns and small cities, public officials do take notice when someone threatens to sue. Investigations actually get conducted and settlements prior to litigation sometimes are reached.

The Indiana General Assembly needs to take a closer look at the notice of tort claim requirement. Repeal, especially for state suits, may be the best option. At the very least, farm out the investigation of the claim to some entity besides the Attorney General's Office which has an inherent self-interest in not producing investigatory materials or conclusions that could be then used against the AG's attorneys defending those state agencies in litigation.

Wednesday, September 24, 2008

Electoral College Websites & Trends

This semester, I'm having each of my students follow four states. The class before the election, I'm going to go through the class and have the students following each individual state predict which candidate will win that state. They'll be picking against their instructor. Normally I have a good track record predicting which way states will go on Election Day.

The last two presidential elections my incorrect guesses on state outcomes could, total, be counted on one hand. It wasn't exactly difficult though since virtually every state went the same way the poll numbers were showing that state would go. This election I expect to be one where the results are dramatically different from the poll numbers. I see a few red flags on the Republican side. There seems to, despite Palin, be a lack of enthusiasm for the ticket. That enthusiasm will not only drive turnout, it has already driven records numbers of people to register and vote in the Democrat Primary. The second, and even more serious, is that I expect that this election to be all about the economy, and Obama is perceived as much stronger than McCain on that issue. In fact, McCain doesn't seem at all comfortable talking about economic issues. McCain's heart is in being commander in chief, a job for which he has unassailable qualifications. But American presidential elections are rarely about foreign policy, a fact Indiana Senator Richard Lugar found out during his ill-fated run for the White House.

Tracking the Electoral College picture has been made much easier by several good websites. Let's take a look at a few of those and their current trends:

Obama 282, McCain 256

Obama 305.8, McCain 232.2

Obama 202, McCain 163, 173 Undecided

Real Clear Electoral College Map
Obama 211, McCain 189, 138 Tossup
Obama 273, McCain 265 (when you click the "No Tossup States" tab)

CCN Electoral College Map
222 Obama, 200 McCain, 115 Tossup

Real Clear Politics Tossup States
New Hampshire

CNN Tossup States
New Hampshire

The differences between the two tossup lists? Real Clear Politics includes Indiana and Pennsylvania as tossups while CNN does not. CNN though includes Colorado, while RCP does not.

Normally predictions are a matter of taking these few tossup states, studying history, polls and trends, and making a prediction as to those states. There are elections though where event states that have polled consistently for one candidate go to the other on Election Day. That happened in 1980 when Reagan won 489 to 49 in the Electoral College over then President Carter. It wasn't that on Election Day Reagan was polling ahead in every state except Hawaii, Minnesota, West Virginia, Geogia, Maryland, Rhode Island, and D.C., the states he lost. (Yes I know D.C. is not a state.) In fact the polls going into that election showed Reagan with only a slight lead nationally. But when Election Day came, those people who said they were going to vote for Carter simply were not enthused about their selection and stayed home.

I see the same 1980 enthusiasm gap this year but in reverse. While Palin helped to close the enthusiasm gap for McCain, in the end I still believe the historal trend will hold that voters do not vote for Vice President, they vote for President. McCain has a huge hurdle to clear to get his people to the polls on Election Day. It is an effort I believe will fall substantially short creating a chasm between the polls and the various state election results.

Downtown Parking, Part Two

I think I overlooked what is the most imporant part of the Indianapolis Star parking placard article:

A letter sent to [David]Lurvey (a downtown businessman who had complained of parking) said, in part: "Your assumption that these placards are not issued for daily parking is correct. . . . I will direct a traffic lieutenant to personally review this complaint and issue tickets to violators.
The letter was signed by Police Chief Michael Spears. It was dated Jan. 10.

Someone should ask Police Chief Michael Spears what happened to that investigation or if one ever took place. We shouldn't have to depend on the Indianapolis Star doing an article embarassing public officials in order to get government to address a problem.

Tuesday, September 23, 2008

Yes, Republicans There is Good Regulation - My Experience with the Indiana Title Insurance Industry

This may not be a post that sits well with my fellow Republicans and Libertarian friends, but I do believe there is such a thing as good regulation. Repeal or not enforcing regulations can lead to abuses, examples of which exist in the meltdown of the mortgage and financial services industries. I'll speak today of regulation of players in the great real estate game and, in particular, regulation of the Indiana title insurance industry.

In the fall of 2006, when I went to the Department of Insurance, I and another attorney, were charged with the responsibility of creating a regulatory structure for the title insurance industry. Our job was complicated by the fact that the Indiana General Assembly has never adopted statutes to specifically regulating title insurandce agencies, as had many other states. For the most part we were left with trying to apply regular insurance agency statutes to title insurance, a situation akin to trying to fit a square peg in a round hole. As few people understand outside of the real estate industry, regulation of title insurance has to do with the regulation of an insurance product. Ninety percent of the regulatory effort is regulating the real estate transaction presided over by the title agency. That's exactly the reason why most states do not include their title insurance regulatory body within the Department of Insurance. People who deal with regulating other types of insurance rarely understand the odd duck known as title insurance. It's hard to regulate something you don't understand.

We at the Title Insurance Division started with a two part philosophy: First, the regulatory structure must be aimed at providing an even playing field for title insurance agents and insurers. The aim was to provide the proverbial even playing field for those in the industry. The problem we had encountered were those in the industry willing to push the envelope regarding the unfair competition rules, quite often taking advantage of extremely lax federal and state enforcement of anti-kickback provisions in RESPA and Indiana law. Others in the industry were executing voluntary compliance of the rules, even though they knew that the rules probably would not eve be enforced. Although voluntary compliance of the law was the right thing to do, insurers and agencies who followed the rules paid a price in market share as those who ignored the unenforced laws swallowed up more and more customers.

The second part of the philosophy was consumer protection. Having worked in the industry, I knew the notion that consumers are ever going to be knowledgeable about title insurance and make consumer choices based on that knowledge, is nothing more than wishful thinking. No matter how much consumer education there is the consumer will almost always go with the title agency suggested by the lender, the realtor, the mortgage broker, the builder. Because of that fact it is essential that the title agent be an independent voice, an unbiased party in the real estate transaction. The title agent is the umpire who makes the calls and ensures the game is called fairly. Other real estate players though try every trick under the sun, in return for their directing business to the title agency, to get a cut of those agencies' fees. While the title insurance industry suffers, so do the consumers who see their choices diminished and fees escalate.

Worse yet when a title agency's independence is removed, fraud in the real estate transaction creeps in. For example, whenever you see repeated examples of fraud by a mortgage broker, you will also find the same title agent being used over and over again. Why? Because that title agent is someone who will look the other way in the face of fraud or who may even actively participate in it.

This leads to my previous observation that effective enforcement requires that the major real estate players be regulated by the same entity. It's hard to enforce laws against mortgage fraud or unfair competition when you have multiple agencies with different approaches regulating the offending players.

As far as mortgage fraud goes, too often county prosecutors fail to prosecute probably because of a lack of understanding of the complex real estate transaction that contained the mortgage fraud. It's hard to regulate an industry that the regulators do not understand. It is even harder for a county prosecutor, used to dealing with crime in the streets, to switch gears and prosecute someone for a white collar crime in a complex real estate transaction. The U.S. Attorney's office, while more aggressive as to mortgage fraud, will generally only look at cases involving tens of millions of dollars. A comprehensive real estate regulatory division could work in conjunction with county prosecutors to lend them the knowledge and expertise needed to prosecute cases of mortgage fraud that generally goes unprosecuted today.

Those who worship the deregulation philosophy should not have been so quick to cast aside all regulation as evil. Many regulations that ensure competitive markets and protect consumers have merit and need to be preserved. That is a lesson hopefully people of all political stripes have learned these past several months.

Star Investigates Parking Freebies

Today published in the Indianapolis Star is a story about the abuse of parking placards for city and county officials as well as certain well-placed VIPs to park free downtown for hours at a time. It was an abuse that all of who work downtown were seen grow worse daily. It used to be easy to pull up to a meter downtown and run an errand. Now entire blocks of city streets are consumed by the free placard parkers.

While what the Indianapolis Star did was a good public service, the parking problem is still a minor issue compared to other issues out there that the newspaper has completely failed to investigate. There is an enormous story out there about the abuse of public-private partnerships and how private individuals have enriched themselves at taxpayer expense through insider dealing and well-heeled political connections. There is the revolving door between the quasi-governmental agencies and the private companies they work with. There is the issue of legal firms billing the city and county outrageous sums for which they are never questioned because those firms quietly kick back some of those fees to elected officials in the form of campaign contributions.

Then there is the issue of privatization and the widespread failure of government to enforce provisions of the contracts received by those vendors. Quite often the vendors receiving the contracts also are major political contributors or who employ current or ex-elected officials who wield influence in their area. The elected officials simply look the other way.

Yes, the Star should be applauded for its investigatory piece. Now though it is time to move on to bigger investigations.

Monday, September 22, 2008

Flag Thrown on CIB/City - Colts Contract?

Looking over the 83 page CIB/City-Colts Contract, I noticed the legal phrase "no adequate remedy under the law" being used in Section 4.4(a) on page 21. That is antiquated legal term which says that if the agreement is breached, the parties are not entitled to seek money damages. The parties can only seek equitable relief like an injunction or specific enforcement of the contract. So even if the City is out millionns because the Colts decide to leave the city, we are only entitled to an order forcing the Colts to comply with the Contract.

That provision, directly conflicts with the arbitration requirement in Article 25 (pages 75-78), in particular Section 25.5 (page 76) which says that the remedies to the arbitrator include "both money damages and equitable relief." The arbitration agreement also says that the arbitrators are limited to the terms of the agreement, and the terms include the fact that only equitable (not monetary) relief is available.

Unfortunately if there is a dispute over the contract, it won't be a judge deciding, it will be a panel of three arbitrators. Arbitration is mandatory under the contract. One arbitrator is picked by the City/CIB, one picked by the Colts and a third picked by the other two arbitrators.

While the measurement of damages in a breach of a contract like this is always problematic, the thing to do is not to throw out the idea of damages all together, but rather to establish a liquidated damage amount that the parties agree to in the event of a breach. What lawyers refer to as "specific performance," a court order requiring compliance with the contract, is not an adequate remedy as it might only come several months if not more than a year down the road, long after the City has incurred substantial damages. Additionally, if the falling out between the parties is so substantial that the Colts pack up and leave town, forcing them to move back to the city to resume the strained relationship seems not a very good option. It would be like in a divorce proceeding forcing a husband and wife to resume living together, despite the fact that the husband has moved on and is living with another woman.

Sunday, September 21, 2008

Lucas Oil Stadium's Roof Closed?

It was a balmy 70 plus degree September day here in Indianapolis. We paid an extra $300 millionfor a retractable roof so we could have an open air football stadium on days like today. Yet today the Lucas Oil Stadium roof was closed.

What's the purpose of having a retractable roof if you're not going to open it on a day like today? If it's for strategic reasons, too bad. The Colts need to learn to play football in the open air. Since the VP of the Colts said they were "only a tenant," I assume the operator of the stadium is making the decision. Okay, I'm joking about that. I'm sure the Colts made the decsion.

I think there needs to be a policy that the default is going to be that the roof is open unless there is bad weather. If it's not going to be open on a day like today, I"m not sure when it's ever going to be open.

City-County Council: It is Time to Investigate Public-Private Partnerships

During the past several months, I have had the opportunity to take a look at some of the city's public-private partnerships efforts. While what I viewed was only a brief glimpse, it was frightening. For years, leadership of this city, both Republicans and Democrats, have lauded public-private partnerships as good for the taxpayers. What I saw though was much more ominous. It appears that these efforts have too often involved degraded into insider deals which government officials and private businesses profit at the expense of taxpayers. Time and time again, I ran across deals, cloaked in secrecy, in which the players moved seamlessly from a public decision-making role to a private profit role.

The private interests wanting a place at the public trough kick back money directly to the public officials in the form of campaign contributions or indirectly in the form of hiring politically connected law firms which then turn legal fees into campaign contributions. Time after time again, I saw the same players involved. It was as if the money trail was a big circle, a circle the taxpayers were closed out of.

An example: Michael Browning in 1985, as Vice President of the Sports Corporation, signed the Redevelopment Agreement with the City for the Sports Corporation to develop Square 88 in Indianapolis, a city block which includes Pan Am plaza. The Sports Corporation then contracted with a developer to develop Square 88. That developer? Michael Browning.

As a side note, the city in 1985 floated bonds to buy the lots in Square #88 and then gave (for free) the property to the Sports Corporation. Our city leaders did not even include a requirement that the Sports Corporation pay off the city's debt when the property was developed and sold. What happened to that debt the city incurred to buy Square #88 lots? We're still paying on it it. The Square #88 bonds were rolled into the Circle City Mall debt.

What is most disturbing is the secrecy in which these public-private partnerships are allowed to operate. For example, the Sports Corporation refuses to disclose details regarding its sale of Square #88 property. Government boards working with those private companies have historically been very guarded about disclosing information about those deals and the numbers provided often turns out to be misleading or inaccurate. Those boards are often filled by people who have a self-interest in the public-private deals. In some cases individuals sit on the government board and are also on the board of the private company that does business with the government board. An example of that is Bob Grand, who, in addition to advising the mayor, chairs the Capital Improvement Board while also on the board of the Sports Corporation which regularly receives money from the CIB for various projects.

For too long, city leaders have looked the other way while politically-connected individuals have used public-private partnerships to enrich themselves rather than do what is in the best interest of taxpayers. It's time for leaders on the City-County Council to step up and take a closer look at these deals and ensure that, in the future, they truly are in the taxpayers' best interest.

Saturday, September 20, 2008

Mayor Ballard Takes Stand Against City Taxpayers

I was extremely surprised to see city lawyers filing to dismiss the lawsuit my law firm filed on behalf of Indianapolis taxpayers’ lawsuit to obtain a return of millions of dollars that Sports Corporation should have paid to the City pursuant to the terms of the original 1985 agreement. It would have been one thing for the Sports Corporation to have filed such a motion on its own. But for City Legal, with attorneys paid for with taxpayer dollars, to spend countless hours at taxpayer expense working with the Sports Corporation to prepare and file such a motion against Indianapolis taxpayers, is rubbing the salt in the wounds of people already overtaxed due to this city's giveaways.

I would point out that this action comes at the very same time when the city is desperate for money because another public-private partnership, Lucas Oil Stadium, is “bleeding cash.” This was an easy political issue for the Mayor. The decision to do this deal was made at the 11th hour by Mayor Peterson’s people. The City-County Council was kept completely in the dark. While I’m sure Mayor Ballard is telling the truth that he was told of the deal, I highly doubt they told Mayor Ballard the deal to reduce the plaza requirement had a $6 million fiscal impact. After all, the Peterson people did not even bother to include that little fact in the resolution introduced at the Metropolitan Development Commission.

One thing that is missed in all this is why the City and the Sports Corporation would attempt to dismiss the case at this stage, a very unusual move. I would suggest the obvious: the City and the Sports Corporation are taking this action now because they want to avoid going through the discovery process which will likely lead to full disclosure of all the facts behind the deal, including the people who profited. Instead of doing the right thing now and lean on the Sports Corporation to cough up the money, Mayor Ballard has chosen to take a political bullet for the former Mayor by taking, at taxpayer expense no less, a stand against city taxpayers and in favor of corporate welfare.

I can only guess that such extremely foolish political advice comes from some of Mayor Ballard’s close advisors who also were eating from the City’s corporate welfare trough before Mayor Ballard was elected, quite possibly people who profited directly or indirectly from the Pan Am deal, or perhaps who sit on the board of the Sports Corporation. It’s a shame because those conflicted advisors he leans on have little, if any, interest in the Mayor's political future, certainly less than Republicans like myself who are left in a position of sharply criticizing a Mayor we so want to support. If Mayor Ballard had any idea how angry members of his own party are at him, including most of the very people who helped him get elected, perhaps he would choose a wiser political course.

Friday, September 19, 2008

A Goose and a Duck Walk Into a Bar...

Okay, that's not the joke. Along the White River Trial where I ride my bike I see literally hundreds of geese hanging out in the open fields, sometimes walking onto the trail. Actually I should say hundreds of geese and one lone duck which hangs out in the middle of all the geese.

The other day I got to see the duck up close as the group he was with crossed the trail. No doubt it was a duck, but I saw that the feathers on his/her back had a brownish tint to it, similar to the color of the geese's feathers, but lighter.

No one seems to know the answer - can ducks and geese interbreed? Several people have assured me they can, but they can point to no support for their opinion. I have my doubts and believe, at the very least, it's a rare occurrence. Anyone who knows, let me know. I'm getting tired of googling to attempt to find the answer.

Governor Jill Long Thompson?

Will that be something you hear around the Statehouse come January?

For the past couple months I've been saying that Jill Long Thompson has a shot to win the Governor's race. To say the least I was in the minority on that sentiment. I was assured by the political pundits and several media types that the race was over. I had several friends email me puzzled by my comments on my blog asking for further explanation. They had been convinced Governor Daniels had the race in the bag, that the election was over.

This morning the Indianapolis Star/WTHR poll reports that Daniels lead over Jill Long Thompson is only 4 points, 46-42, within the margin of error.

I'm not the kind to say "I told you so." Okay, so maybe I am that type.

I would say at the outset though that I'd be very distrusting of polls in this election. They don't measure intensity which greatly impacts turnout. Although Sarah Palin has brought some enthusiasm to Republican voters, I still remain skeptical that her presence on the ticket will, in the end, make that much of a difference. Throughout history the VP selection has had little influence on the ultimate fortune of those at the top of the ticket. The enthusiasm and energy seems like it is all with the Democrats. This election reminds me of 1980 in reverse. There you had an election for President (Reagan & Carter) that was nearly dead even in the polls, that turned out to be a landslide for Republicans on Election Day.

The problem is when people do political analysis for a race like Governor, most people focus simply on the race at hand. They stare at the tree describing what they see while forgetting that they're standing in the forest. An election is not usually a singular contest, but a series of contests that take place on one day, with the key contest on that day having the ability to greatly affect the outcome of the other contests.

The Star's headline and thrust in the article was that the race is close because of ticket-splitting. That's wrong. The race is close despite ticket-splitting. A better angle for the story would have been that "a rising tide raises even the most leaky boat." Now armed with a poll that says the Governor's lead is a mere 4 points, Jill Long Thompson is going to be able to plug the financial holes in her boat so she can possibly catch the Democrat wave and make it to shore.

Below are some related blog postings: http://www.ogdenonpolitics.blogspot.com/

Republicans Need to Heed Rokita's Warning: Indiana's Coming New Voter Surge 9/18/08

Does a Rising Tide Raise Jill Long-Thompson's Ship? 9/6/08

No Hoosier Left Unregistered 9/3/08

Thursday, September 18, 2008

Republicans Need to Heed Rokita's Warning: Indiana's Coming New Voter Surge

This week, I had the opportunity to watch Indiana Secretary of State Todd Rokita being interviewed on CNN. Rokita was talking about the surge of voter registrations in the state and said that the McCain people need to take very seriously the claim by Obama that he intends to carry the State. An Indianapolis Star-WTHR poll released today shows Obama up in Indiana 47-44 over McCain.

This blog isn't about cheerleading my Republican Party. It's about straight-talk, including honest political analysis. I said it before and I'll say it again, Republicans in this state are whistling by the graveyard if they don't see the enormous danger reflected in Indiana's voter registration numbers. As of last Saturday, the numbers were 562,694 new and updated registration applications in 2008. The Secretary of State further reports that there have been 410,647 new registrations since the last election. These are records folks with the three busiest weeks of registration left to go.

I remember in May Republicans giddy about the the fact that the Democrats had a hotly contested primary race for President in Indiana. The celebration was foolish. As I worked my voting location in Marion County, I saw new voter after new voter come in and take a Democrat ballot. Many of these people were first time voters establishing a voting habit (pulling the Demcorat lever) that they will probably carry forward for years to come and certainly into the next election. Contrary to the accepted wisdom, primaries are not always bad. The Democrats used the battle between Obama and Hillary Clinton to register millions of new voters nationwide and energize their base. Sure there remains some animosity between the two camps, but the Democrats are wise to trade that tension for milliions of new Democrat-leaning voters.

Going back to the numbers, let's say that by the end of registration there are 500,000 new voters in the State since 2006. (I prefer to concentrate on the brand new voters rather than lump them in with the voters who have the updated registrations.) With the interest and enthusiasm on the Democrats' side, they will skew strongly in favor of that party. So let's do the numbers.

500,000 x a predicted 75% turnout of these new voters (new voters are people who have shown a recent interest in voting and are going to turnout heavy, especially in this election)

This produces: 375,000 new voters on November 4th.

Given the interest in voter registration among Democrats because of the contested primary and Obama's popularity, I expect the new voter registration numbers to break 2-1 in favor of Democrats. So let's finish the math:

375,000 x .67 = 251,250 new Democrat voters. Subtract out the estimated 123,750 Repubicans which produces an edge of 127,500 for Democrats running statewide.

That analysis probably understates the Democrats' advantage among new registrations. It also doesn't take into effect the record number of updated registrations which undoubtedly reflect a Democrat trend. Most importantly though, while the enthusiasim gap has closed with McCain's selection of Sarah Palin as a running mate, enthusiasm still remains strong on the Obama side. Even if polls are dead even, the intensity of support for one candidate or another can greatly skew the results in favor of the candidate or party that voters are enthused about.

Republicans need to be prepared because on November 4th there is going to be a Democrat voter registration storm surge that's going to hit the state.

Wednesday, September 17, 2008

Privatization: Why Governor Daniels and Jill Long Thompson Are Both Right on the Issue

A quick glance at media coverage of the Indiana Governor's Race, one would believe there is no bigger divide than over the issue of privatization. A trained ear though would detect the two candidates are talking past each other. Governor Daniels and Jill Long Thompson are, in fact, both making valid points about privatization.

Let me explain. When Governor Daniels addresses privatization on the campaign trail he's talking about the idea of privatization, the notion that the taxpayers benefit when market competition is instilled into the provision of government services. He's right...it's a good idea.

When Democrat Jill Long Thompson talks about privatization during the campaign, she's talking about how privatization has been put into practice. She makes the point that not every service lends itself to privatization and abuses have happened. She's right...when put into practice the idea of privatization has often fallen short or led to abuses.

During the 1990s, I spent considerable time study privatization and then watching it be put into practice by people such as then Indianapolis Mayor Steve Goldsmith. I, thought, and still think, it is a good idea. But I've also witnessed the idea of privatization failing terribly in practice. For example, as an attorney I have dealt extensively with corrections privatization over the past nine months or more. The failures I've seen with correctional privatization, especially privatized medical care for inmates, are shocking to even to someone with the most right-wing, throw them in jail mindset. Corners are routinely cut so those private correctional companies can make more money, even though inmates end up injured or even die as a result of not getting their medicine or treatment. In the private jails, these are often people who haven't even been convicted of anything. They're in the facility because they can't afford bail. And if you don't think innocent people are wrongly jailed, read the story I wrote about the mentally disabled client I represented who was accused of robbery.

Before privatizing a service, government officials need to ask themselves some questions to ascertain whether this is a service where privatization would actually work to instill market competition into the delivery of that service. If not, then maybe it is not a service that should be privatized.

I came up with several things I would consider before voting to privatize a government service.


1) Are there several vendors who are capable of and interested in providing the service?
--If there is only one or two vendors that can provide the service, then you're not instilling market competition into the delivery of the service. You're exposing taxpayers to a monopoly mandated by government.

2) Is the contract for a service that will be bid out?
---A contract that will be subject to bidding rules is less likely to be one where the vendor gets the service because of political contacts or campaign contributions.

3) Is the vendor going to be given a long term contract?
---When you give a vendor a long term contract, then the vendor doesn't have to worry about market competition if they don't provide the service well. The whole idea of privatization is defeated.

4) Is this a service that is going to be provided out in the open, so the public can judge the quality of the service provided by the vendor?
---Garbage collection everyone sees. The running of a maximum security prison is done behind closed doors. The public knows if the company picking up the garbage is doing a good job. The public knows little about how well the prison is being run.

5) Are the individuals who are receiving the service which might be privatized, people who are politically powerless or unpopular?
---Classic example is correctional privatization. A sizable portion of the population doesn't care if private correctional companies cut corners on medicine or medical treatment of inmates. So even though the company may not be living up to their obligations under the privatization contract, that contract often is not enforced by public officials who do not have to worry about the powerless constituency receiving the service. By the way, I would say another example of people without much political power are welfare recipients. Witness the recent FSSA privatization effort here in Indiana.

6) Is the company providing the service going to be properly supervised and held accountable if the vendor doesn't live up to the contract?
---Too often services get privatized and government does not do adequate monitoring of compliance with terms of the contract. The tendency for government is to just pass blame along to the private company. It doesn't work like that though...government is still legally responsible for the provision of the service, even if it's contracted out to a private vendor.

7) Is the company bidding on the privatization contract willing to subject itself itself to the open records law and disclosure requirements public agencies providing that service would have to follow?
---Although providing a public service paid for with taxpayer dollars, many companies insist on operating in secrecy. They claim the secrecy is to protect itself from having the company's secrets stolen. Don't buy that nonsense. The real reason for the scrutiny is that the companies do not want to provide information that could be used to show they are not doing a good job.

8) Did the company or its top employees make large campaign contributions to elected officials and candidates who were in a position to influence the privatization decision?
---Privatization has unfortunately become a vehicle by which elected officials and candidates can generate large campaign contributions from companies interested in currying favor. Even after the decision is made, the money train continues because the companies want to keep the elected officials happy and avoid the scrutiny and criticism of their performance.

9) Is the company hiring local politicians in an attempt influence the privatization decision or reduce the criticism of their performance under an existing privatization contract?
---It's the oldest game in privatization. A private company which offers a service hires the elected official who was responsible for the government providing that service to the public. The person isn't being hired for his or her expertise. The person is being hired for political influence.

Agreed - No State Bailout of CIB to Pay for Lucas Oil Stadium Operating Expenses

Gary Welsh of Advance Indiana is demanding to know the position Indianapolis area legislative candidates will take on the anticipated request by CIB that they be bailed out of the city's shortsighted failure to consider operating costs of the Lucas Oil Stadium. Gary, you have my "Amen."

I want to say a special thank you to Phil Hinkle, one of the few remaining Republicans whose district includes my home township of Pike. Here's what Phil said according to Advance Indiana:

Rep. Phil Hinkle (R-District 92): "No, absolutely NO BAILOUT. If it was such a good deal, let Bart Peterson and Fred Glass form a partnership and operate the Oil Can, keep the profits and relieve the taxpayer of any burden to maintain the facility. We will of course continue to pay down the bond as they obligated us to do."

Well put, Phil. You're making Pike Township Republicans, the few of us who remain, proud.

Tuesday, September 16, 2008

Lucas Oil Stadium Springs A Leak

The CIB is at it again. In an article just posted on Indystar.com, Brendan O'Shaughnessy of the Indianapolis Star reports that the cost of operating the Lucas Oil Stadium may turn out to be twice as much as originally expected. Of course, negotiators had failed to consider operating costs at all. With operating costs cutting into the CIB's operating budget, the agency will be left with a balance of $5.6 million next year. Given the accuracy of previous estimates, one shouldn't count on that money being there.

The article contains some gems:

The CIB gives $1 million annually to the arts. Why? The agency was established for the purpose of operating city properties. The CIB's authority is explicitly set out in the Indiana Code. I have my doubt the CIB even has the statutory power to give money to the arts. Nonethless, it's simply not the CIB's job to be involved in this function. If the city wants to give money to the arts, then it needs to be a regular part of the budget, not a pass through by an agency involved in other functions.

Fred Glass, former chairman of CIB, suggests that the city should have borrowed the operating costs of the stadium. One wonders if he puts his electricity bill on his credit card at home. It's because of people like Fred Glass that the debt on the RCA Dome was never paid off and $75 million dollars got rolled into the Lucas Oil debt.

O'Shaughnessey writes "City officials had anticipated covering increased costs with taxes from a proposed Downtown casino...." I can't believe he bought that line. City officials never expected that a downtown casino would happen. It was something former Mayor Peterson simply threw out when he was asked by state legislators how he was going to pay for the stadium.

Asked about the shortfall, the Colts responded by saying they're just a poor tenant and "not in a position to comment or suggest a solution" to the shortfall. Not sure why as "just a tenent" in the building the Colts are getting the money from the naming rights and 1/2 the revenue from non-football events. But Pete Ward, the team's vice president made clear that to suggest "reopening (the lease) agreement ... is ludicrous." Hey, Pete, the Colts might consider cultiating some good will in the community that isn't built solely on the right arm of Peyton Manning and the fact the Colts are a Super Bowl contender. The minute the Colts return to being an average team, which will happen, this town will turn on them in a heartbeat. The Colts' organization seems oblivous to the underlying hostility this town has over the sweatheart deal the team received.

A suggested solution was staff cuts at the CIB. That's a good idea and the Mayor should start with the CIB's chairman and executive director. The agency needs strong leaders who will stand up to to the Colts and stand up for taxpayers. That is not Bob Grand or Barney Levengood.

Real Estate Reform - Why Indiana Needs It

With the meltdown in the subprime lending market and the continuation of scandals in the mortgage industry, the need for better regulation of the real estate industry should be at the top of the political agendas of the candidates for Indiana Governor and Attorney General. Unfortunately, only Linda Pence, Democratic candidate has made "mortgage fraud" a top issue. The issue of regulation of the real estate industry would certainly benefit from a more aggressive Attorney General. While Pence deserve kudos for recognizing real estate as an issue, she is only scratching the surface.

In 2006, Indiana created a new title insurance division within the Indiana Department of Insurance. I, along with another attorney, were named co-manager of that division. It was a regulatory effort akin to inventing the wheel. Title insurance in Indiana had essentially been unregulated. It was up to us to develop policies and audit practices for the industry. The title insurance industry not only welcomed the effort, the industry actually worked for the legislation funding the division with a charge on each title insurance policy.

We were able to put together a five person staff that had a combined 100 years of legal and real estate experience. Having developed a set of operating policies and audit procedures, we would get calls all over the country from regulators who wanted to come to Indiana and study what we were doing. While I took that interest as a compliment, I knew that we were a tiny piece of the puzzle and that Indiana's real estate regulatory effort was in desperate need of reform.

Here's the problem: A real estate transaction involves numerous players. You have realtors, mortgage brokers, lenders, appraisers, title insurers and title agents. The same transaction may involve four or more agencies regulating the players involved. The Department of Insurance regulates the title insurer and title agent. The Attorney General regulates realtors and appraisers. Mortgage brokers are regulated by the Secretary of State. Lenders are regulated by the Department of Financial Institutions.

It is a horribly inefficient regulatory set-up. One regulator may take an aggressive regulatory approach to wrongdoing in a real estate transaction while another regulator may let another wrongdoer in that same transaction off scott-free. Worse yet communication and coordination between the various real estate agencies was, and I'm sure still is, virtually non-existent. Often reading the Indianapolis Star was how we found out about investigations the other agencies were involved in, even though they often implicated people we were supposed to regulate.

The title insurance industry is most interested in enforcement of unfair competition laws, both state law and the federal Real Estate Settlement Procedures Act (RESPA). The industry was tired of being approached by realtors and mortgage brokers who demanded to be compensated in exchange for their business. Often that demanded compensation took the form of realtors or mortgage brokers telling title agents they had to pay for their advertising or hire one of their employees or pay them thousands of dollars for a sign on their car. If they didn't go along, the they would steer their business to the title agent down the street who would willingly pay the extortion.

Paying for real estate business, no matter in what form, is illegal under Indiana law and RESPA. It is illegal both for the payor and the payee. The Title Insurance Division was ready to enforce the law against title agents who knowingly gave the demanded compensation. But what the title insurance industry also needed was enforcement against realtor and mortgage broker demanding the illegal payment. Unfortunately, despite our urging, we were never successful getting the Attorney General's office to enforce unfair competition laws against realtors. In 2007, the Indiana General Assembly passed a bill specifically instructing the Attorney General to enforce RESPA. When told about the new law and the directive to enforce RESPA, AG officials informed us that it was not clear the Attorney General had the authority to enforce RESPA. RESPA though specifically talks about state Attorney Generals enforcing RESPA! I'm not sure how more clear the law could be.

We were not successful getting the Attorney General's office to pursue cases of mortgage fraud either. It might have been a lack of understanding of the complexities of a real estate transaction or perhaps it was simply not a priority. Nonetheless, I always made my very experienced staff available to help out the AG's people and the folks over at the Secretary of State who regulated mortgage brokers While the Secretary of State people were hampered by inexperience and a lack of understanding of real estate transactions and the tricks brokers pull, nonetheless, Todd Rokita's office deserves credit for making investigation of mortgage fraud a priority.

The mishmash of regulatory approaches and the lack of communication and coordination among the agencies will never be solved as long as there are different regulators for different players in the same real estate transaction. Indiana needs to bring all these regulatory efforts together under one roof, a real estate agency that has the experience and knowledge to bring a comprehensive regulatory effort that will be model for other states to follow. Indiana doesn't need to always be a follower. In the area of real estate regulatory reform, Indiana can be a leader.

The Politics of Abortion

The media loves to portray the abortion issue as hurting Republicans. Exit polling though rarely shows the issue as breaking against the GOP. Nonetheless, the belief persists among many that the GOP's pro-life position hurts the party.

As a candidate for the Indiana House in 2000, I learned a lesson I'll never forget regarding the politics of the abortion. I was running for a northwest Indianapolis district against a Democrat incumbent, Jeb Bardon. It was a district that had been Republican when it was originally drawn but had trended heavily Democrat when Bardon first won the district in 1998. In 2000, we tried to win the district back for the Republicans.

The first round was the primary. I was facing the son of the state treasurer, Joyce Brinkman, who had also previously represented the district. Even though I was the endorsed candidate, many people thought I couldn't win against the Brinkman name in the mostly Pike Township district. I went about proving them wrong.

I literally knocked on tens of thousands of doors leading to the primary. In the primary round we, of course, targeted Republican voters. As I would introduce myself and hand the voter literature, I would often get asked questions about an issue or two that was particularly important to that voter. After telling the voter my view, the voter would inevitably respond with his or her take on that issue.

During the Republican Primary round, the question I was asked most often was my opinion on abortion. Now, I certainly consider myself pro-life, a view which originated during a college term paper I wrote on pre-natal life. My research left me with the inescapable conclusion that a fetus is distinctly and unquestionably human life. When I hear people say abortion is just about a blob of cells or one person's right to make a decision about her body, I find their words to be intellectually dishonest. If I believed their premise, I'd support the pro-choice position 100%. But modern science says otherwise. Abortion involves the lives of not one, but two human beings. There is a need to weigh the very real interests involved, to reach a compromise. But unfortunately with the terribly reasoned Roe v. Wade, the Court short-circuited the political process by which we reach compromises in this country.

But I digress. This post is about impact of the abortion issue on candidates running for office. During the primary round, Republican voters asked about the issue of abortion far more than any other issue. Believe it or not, every last Republican who asked me about my view on abortion was pro-life.

As I went into the general election round, concentrating my efforts competely on Independents and weakly-affiliated Democrats, I expected people's approach to the abortion issue to change dramatically from my experience with Republican voters. Once again though the number one question was abortion. And you know what? Every last Independent and weak Democrat who asked me about my position on abortion was pro-life. Unbelievable. And this was not a rural district in Southern Indiana. It was an urban Indianapolis district.

So when people try to say that the abortion issue is really hurting Republicans, I remember that my experience of 2000 tells me otherwise.

Quotes As Guiding Principles

Today I added a quote in the heading of my blog from Haile Selassie, the former Ethiopian Statesman and Emperor, from 1930 to 1974. I think the quote, along with a couple from Teddy Roosevelt, capture my belief regarding political activism. From the pages of the history books, Teddy has always been a hero to me. He called them like he saw them, and if that meant calling out his own Republican Party at times, so be it. Teddy Roosevelt was the original straight talker. Fighting political corruption, even within his own party, didn't finish Teddy's political career as today's timid politicians think. It made him wildly popular among the public.

Here now are my two favorite Teddy Roosevelt quotes. The quotes along with Selassie's define the difference between being a politician and being a statesman.

"Far better is it to dare mighty things, to win glorius triumphs, even though checkered by failure... than to rank with those poor spirits who neither enjoy nor suffer much, because they live in a gray twilight that knows not victory nor defeat."

"It is not the critic who counts: not the man who points out how the strong man stumbles or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes up short again and again, because there is no effort without error or shortcoming, but who knows the great enthusiasms, the great devotions, who spends himself for a worthy cause; who, at the best, knows, in the end, the triumph of high achievement, and who, at the worst, if he fails, at least he fails while daring greatly, so that his place shall never be with those cold and timid souls who knew neither victory nor defeat."

Monday, September 15, 2008

The Innocent Man

This morning's Indianapolis Star brings a story of Sherman D. Allen, Jr. who went to bank to withdraw money and was given $200 from someone else's account with a very similar name. The Marion County Prosecutor's Office charged him with forgery and theft. Allen was acquitted and is now suing the bank for providing the information that led to his charge. In the article, bank officials were surprised that Allen had even been prosecuted over the matter, that the bank just considered it an insurance matter.

I can top that story by a country mile. A few years ago, I represented T.S., a mentally disabled man. His family was trying to give him some independence so they put him in an apartment on the eastside of Indianapolis. T.S. was often bored and nearly every day he'd walk over to the local video store just to look at the movie boxes.

In the May of 2006, the police came knocking at his door. They had come to arrest T.S. for robbery. The video store manager had called 911 claiming she was robbed by T.S. She told cops that she was leaving the store around 12:15 p.m. to take some of the cash and checks to the bank. Rather than go straight to her car, she decided to take some trash out behind the building to a dumpster (the only place outside where there was no video surveillance). She claimed T.S. jumped out from behind the dumpster and demanded the money she had concealed in her envelope.

The story on the surface was not credible. How did T.S. know she would come back to the dumpster? How did T.S. know she had money in the envelope? Why was she going to make a deposit at the bank in the middle of the day and taking the trash out first, both of which were violations of company policy? While she claimed T.S. had cased the store and cleverly plotted his crime, the fact is the man is mentally disabled and barely able to live on his own. No cash or checks were ever found. It was poor investigation work by IPD that should have been rejected out of hand by the Prosecutor's Office. But it wasn't. The Prosecutor's Office charged TS with felony robbery. His bond was $80,000. His family couldn't afford to bail him out. He, a disabled man, had to sit in jail.

But the story gets better. The day of the "robbery," T.S. and his brother had met to go out to lunch. I obtained phone records showing calls between the brother and T.S. leading to his noon pick-up to go to lunch. He had met his brother outside a drug store around noon. We obtained video from the drug store of T.S. getting picked up in their parking lot. Next we obtained video of him eating at a restaurant across town at about 12:20 p.m. After they left, they went to a Mike's Car Wash. T.S. got change there for his brother and was captured on the store's video camera at about 12:37.

It was impossible for him to have committed the crime. All the video information was presented to the Marion County Prosecutor's Office. Their response? Despite having the information, the Prosecutor's office still left him in jail ... for months. While at Jail #2, officials did not give him his psych meds and he started talking to himself. That upset other inmates and led to his getting beaten up.

Finally as the trial date neared, the Prosecutor's Office suddenly realized they didn't have a case against my client. They asked that he be released and shortly thereafter dropped the charges.

We asked that perjury charges be filed against the store manager. She had seen T.S. a hundred times before and accused him of robbing her in broad daylight. At a sentencing modification hearing, I had gotten her to testify he was the robber. When the prosecutor figured out, too late, why I was trying to get her to make the statement under oath, he abruptly asked for a recess. Apparently he thought the "victim" was his client and had to be protected from committing a crime.

The Prosecutor's Office would not file perjury or false reporting charges against the store manager, saying there was not enough evidence to bring charges. Yet they had no problem bringing felony robbery charges against my client based solely on one person's story which was filled with holes. The likely reason for the manager's story was that she had pocketed the money and fingered a person as the robber (who was unable to defend himself) to divert attention from her. It worked because with a suspect under arrest, the video store ceased any internal investigation which might have implicated the manager.

I talk to defense attorneys all the time who say that this Prosecutor's Office does a poor job of screening cases prior to filing charges and then won't dismiss charges when they know they don't have a case. While I don't do enough criminal law to draw that same conclusion, my experience with T.S.'s case suggess their observations are right on the money. Fortunately for T.S., he did go to lunch that day and we could prove it. I feel for those others wrongly accused who do not have video evidence of their innocence.

Sunday, September 14, 2008

A Serious Energy Policy - Not

If you want to read an unrealistic response to the energy crisis read Jesse Kharbanda's op-ed piece in today's Indianapolis Star. Kharbanda is the executive director of the Hoosier Environmental Council. Kharbanda suggests the following as solutions to the crisis:

*Businesses should make carpooling easier and provide preferred parking to carpoolers.
*Businesses should install bike racks and showers
*Bus schedules and route maps need to be prominently displayed
*We should spend more on public transportion
*We should develop public-private partnerships to advance walkable, bikeable communities

Is Kharbanda being serious? They are good ideas, but a substitute for more oil exploration and development of other energy sources they are not. It's hard to take the Hoosier Environmental Council serious on issues like this when their suggestions fall so far short of realistically addressing the problems we face.

Republicans and Democrats have offered a number of suggestions regarding how to approach the energy crisis. Republicans focus more on energy production. Democrats focus more on conservation. Both approaches are needed.

Friday, September 12, 2008

Pony Up, Colts

The Indianapolis Star today reported that, according to a report in Forbes magazine, the Indianapolis Colts had the biggest jump in value of any NFL franchise. The Colts are now ranked 8th and the franchise is worth $1.076 billion. Just 10 years ago, Forbes had the Colts ranked dead last in franchise value.

City negotiators gave away the city, making Jim Irsay a rich man in the process. (Calling those city leaders "negotiators" is a charitable characterization.) Here was a team theatening to leave if they didn't have a new stadium, and then we paid them $48 million to break the lease on the old stadium? Hey, here's an idea, why not negotiate that the Colts have to waive that payment if we build the new stadium for the Colts so they can make more money?

Then they gave the Colts 1/2 of the non-football revenue. That should never have been on the table. The Colts are a tenant. Why should a tenant get paid when the owners (i.e. the taxpayers) use the building for other events?

This city has made Jim Irsay a rich man. It's time the Colts pony up and give some money back. A good place to start would be for the Colts to pay that $20 million annual operating cost for the statdium that those crack negotiators forgot to consider when cutting the deal with the Colts. One way to recover those millions is for the Colts to agree to amend the contract so the City gets all the revenue for the non-football events.

Any negotiation starts with understanding what leverage each party has. The Colts bluffed the City by threatening to leave. The City's negotiatiors took the bait, falling over themselves to give the Colts a sweetheart deal to stay. The Colts need the city though as much as the city wants the Colts. It's time the City (i.e. the Capital Improvement Board) starts making an effort to recover the ball the negotiators fumbled.

Wednesday, September 10, 2008

Media & Politics 101

During the middle 1990s, I taught a class at IUPUI called Media & Politics. It was a class that discussed how the media operates and how politicians and elected officials can best utilize the media in their campaigns and while in office.

On one of the days we focused on negative stories about elected officials, and how those stories can be handled. It is essential that the elected official not turn off access to reporters when bad stories are printed but instead continue to work to build a positive relationship with the media. There is no doubt that reporters (who vote 80% or more Democrat) do have a liberal bias that often affects their reporting, although that bias is many times subconscious in what stories are covered and how they are presented. However, there are numerous other biases, such as a bias for stories that have action or present conflict, which also affect reporting and have more of an influence than the liberal bias.

Elected officials need to treat reporters as the professionals they are, and respect and understand the role they play in the political process. They need to understand their deadlines and cooperate with them by providing the information they need to complete their stories, even when those stories may not turn out to be favorable. An elected official who is open and candid with reporters is going to earn respect with the media and receive improved coverage.

Having outlined my approach to handling the media, I was disappointed to read Matthew Tully's column this morning. In the column, Tully discusses a conversation with Mayor Ballard in which the Mayor indicates that he is going to talk less openly to reporters, and instead follow the scripted comments of his advisors. That's a bad strategy from a media standpoint (see above), but it's also a bad strategy because it is those advisors whose bad advice got him in trouble in the first place.

I said it before, and I'll say it again. The Mayor needs to clean house and give many of his advisors the boot. He needs to surround himself with advisors who will make him the No. 1 priority and who understand his strengths (see for example "sincerity" noted in Tully's column) and fashion a political and media strategy to match those strengths. Closing the door to unscripted media coverage is not effective media strategy. It is a prescription for even worse media coverage.

Tuesday, September 9, 2008

Robert Vane & The Mayor

I've heard from several Republicans friends who were unhappy with Robert Vane's op-ed piece criticizing Sheila Suess Kennedy for her Indianapolis Star editorial suggesting the Mayor's performance thus far has been sub-par and questioning whether he was up to the job. These Republicans support the Mayor but believe his administration has seriously gone off track and are desperate for the Mayor to change direction if he (and the Republicans on the council) is going to have any chance of winning in 2011. They believe that comments like Vane's enable the status quo to continue which spells disaster for Marion County Republicans moving forward.

First, I would say Robert Vane needs to be cut some slack. He is the communications director for the State Republican Party. His job is to spout the party line, to do political spin when necessary. His job is not to give the straight scoop in an op-ed piece. It appears from reading the piece that Vane did his job as communication director extremely well.

Having said that, I certainly hope that not everyone around Mayor Ballard is feeding him Vane's rosy scenario regarding how things are going. The Mayor needs some people around him who will be honest about how things are going and urge him to completely re-evaluate the direction of his administration and make major changes. He needs to start that change by cleaning house and bringing fresh blood and ideas into his administration. If the Mayor is too nice of a guy to do the firing that needs to be done, he needs to bring in a chief of staff who will.

Saturday, September 6, 2008

Does a Rising Tide Raise Jill Long-Thompson's Ship?

Given Barack Obama's apparent insistence on investing in Indiana to try to win the state, I started thinking about how his efforts might benefit Jill Long-Thompson, Democrat seeking to oust Republican Governor Mitch Daniels.

According to the recent Howey-Gauge Political Poll, Republican McCain leads Obama by 2 points while Republican Gov. Daniels sports an 18 point lead over Democrat Jill Long-Thompson. If those numbers hold up it would reflect a major change in the relationship between Presidential and Gubernatorial election results in Indiana.

Indiana is in the minority of states which has its gubernatorial election the same year as the presidentiual contest. That means that outcome in the presidential race could well influence the race for Governor and other contests.

So let's take a look at the relationship between elections results for President and Governor since 1976.

2004 Pres: D Kerry (39.6%) R Bush (61.4%); Gov: D Kernan (46.1%) R Daniels (53.9%)
2000 Pres: D Gore (42.0%) R Bush, II (58%); Gov: D Obannon (57.6%) R McIntosh (42.4%)
1996 Pres: D Clinton (46.9%) R Dole (53.1%); Gov: D Obannon (52.4%) R Goldsmith (47.6%)
1992 analysis for this year skipped due to large effect of Ross Perot on presidential numbers
1988 Pres: D Dukakis (39.9%) R Bush, I (60.1%); Gov: D Bayh (53.2%) R Mutz (46.8%)
1984 Pres: D Mondale (37.9%) R Reagan (62.1%); Gov: D Townsend (47.2%) R Orr (52.8%)
1980 Pres: D Carter (41.2%) R Reagan (59.8%); Gov: D Hillenbrand (42%) R Orr (58%)
1976 Pres: D Carter (46.2%) R Ford (53.8%); Gov: D Conrad (43%) R Bowen (57%)

Percent Vote Dem Candidate for Governor Led Dem Candidate for President in Indiana

2004: 6.5%
2000: 15.6%
1996: 5.5%
1992: skipped
1988: 13.3%
1984: 9.7%
1980: 0.8%
1976: -3.2%

So you have to go back until 1976 to find an election where the Democrat candidate for president ran ahead of the Democrat candidate for governor in Indiana. The 16% spread reflected in the Howey-Gauge poll would be truly historic should those poll numbers end up being the actual results on Election Day. Don't bet on that spread continuing. If Jill Long-Thompson promotes herself as a conservative Democrat, starts connecting with southern Indiana Hoosiers, and raises doubts about the governor, she could come closer to parity with Obama in Indiana, and be in a position to win should a Democrat/Obama tidal wave hit the country.

Bellweather States

As far as I can tell, it appears that six states have gotten the last four presidential elections exactly right - 1992 and 1996 wins by Democrat Bill Clinton and 2000 and 2004 wins by Republican George Bush. Those states are: Arksansas, Kentucky Missouri, Ohio, Tennsesse and West Virginia.

Arkansas isn't a great state to use since it is Clinton's home state. Then again, Tennesse was Senator Gore's home state and he couldn't carry it against Bush in 2000. Nonethless, I saw something very interesting when looking at how those bellweather states are currently leaning according to Electoral-vote.com.

Arkansas - Weak Republican
Kentucky - Strong Republican
Missouri - Weak Republican
Ohio - Barely Democrat
Tennessee - Strong Republican
West Virginia - Weak Republican


My Optimism Fades

Reading some of the other blogs, I feel I'm perhaps overly negative about McCain's chances. My political instincts though keeping tugging me in the other direction.

I think Wednesday of this week will be the high point of the Republican campaign for President. A new Republican star has been introduced to the country in Gov. Sarah Palin.

McCain did as good a job as possible of playing to the convention crowd and distancing himself from what has become a very unpopular Republican brand. That was what a lot of commentators focused on after the speech. I think the real story was missed. The speech seemed more of a request that the American people elect him Commander in Chief. If that was the sole job of the President, I think McCain would be preferred hands down. But foreign policy rarely drives presidential election results. "It's the economy, stupid," was an overused slogan, but it's nonetheless an accurate one.

McCain doesn't seem to have a coherent economic policy or the interest in developing one. While Obama is lacking in the same area, he seems much more comfortable talking about the economic concerns of the American people and the pain they are feeling. While he's scant on providing solutions, or even a plan, the fact that Obama seems better at empathizing with the troubles of ordinary Americans puts him in the driver's seat.

As much as I would like to think the selection of the very popular Sarah Palin as VP would make an enormous difference, I think you'd be hard pressed to find any instance in American politics where the selection of the running mate made more than a marginal difference. At best, the Veep choice helps balance the ticket geographically and/or ideologically, or helps the Presidential candidate win a key state. Palin will certainly help shore up the Republican base and reach out to some disaffected Democrats, but I sincerely doubt it will be enough.

There are still two months to go before the election, a lifetime in the world of politics. Obama still has time to lose the race. Make no mistake though, it's his race to lose, not John McCain's to win. Obama's greatest enemy is an overinflated ego and a reputation for disdain for ordinary Americans, those small town folks that "cling to their guns and religion." In any other year, that would likely doom his chances. This year, with an anti-Republican tidal wave set to hit in early November, it's doubtful that McCain will be able to surf on top of that wave to victory.

Thursday, September 4, 2008

Buchananizing Palin

There is something in politics known as "spin." Basically it involves advocates for one side or another being sent out after an event, such as a convention speech, and persuading the media elite talking heads what the event or speech was really all about.

At the 1992 Republican Convention, I heard Pat Buchanan at the Republican convention give an especially strong speech. The polls immediately following the speech showed that it was a very well-received, and a major boost for the the Bush/Quayle ticket. However, within days Democrat operatives had convinced the media types that the speech in fact was filled with anger, hate and spite. The media types took the bait.

Now, I'm not a big fan of Pat Buchanan. His opposition to free trade and reasonable immigration reform are certainly not views I support. And Buchanan is way too chummy with those who do condone or practice racism. But Buchanan deserved better than how his speech was spun and is portrayed in most history books.

Why bring this up? Following Palin's dynamite speech, I saw the Democrats beginning the Buchanan spin against Palin. Any convention speech is going to have barbs aimed at the other side. But to represent Palin's speech as nothing more than hate-filled prose, well that is a grossly unfair representation. That won't stop the Democrats from trying though.

Wednesday, September 3, 2008

Vice Presidential Candidate? What Vice Presidential Candidate?

Today on CNN, I watched a top Obama spokesman receive a softball question from a commentator who asked about Sarah Palin's lack of experience to be Vice President. It was the perfect opportunity to pummel Palin for her qualifications or at the very least criticize McCain for picking her.

The Obama spokeman though immediately ducked the question, instead saying the election is not about Vice President but rather who is at the top of the ticket. He then proceeded to link McCain to Bush and question McCain on economic issues. Palin's name was never mentioned again, except when the spokesman remarked that he expected Palin to give an excellent speech. (Building up expectations so high that a person falls short of meeting them and thus is considered to have failed, is a tried and true political strategy.)

The Republican VP selection was made last Friday. Immediately the Obama people went on the offensive, attacking Palin as being unqualified for Vice President. In addition, details about Palin's personal and family life have been reported by the media and bloggers, which information many politicos thought Palin in a bad light.

Why did the Obama spokesman duck the Palin softball and redirect the conversation to the Obama-McCain matchup? The message conveyed by spokespeople for presidential candidates is no accident. That message is constantly being tested by polls and focus groups and refined accordingly. It is clear to me that the Obama spokesman ducked the Palin question and redirected the conversation to the McCain v. Obama matchup because the initial polling by the Obama people showed that intial attacks on Palin were not working and could back fire.

I'm not terribly suprised. Given Obama's dearth of experience for a presidential candidate, it would seem a questionable strategy to attack the vice president candidate on the other ticket for a lack of experience. Apparently the polling confirmed the folly of the initial Obama strategy of attacking Palin directly or McCain for having made the selection.

Revenge of the Geese

Often I ride my bike to my downtown law office. The trip involves a long, peaceful ride down the White River trail. The area is littered with geese who like to hang out on the path. As my bike approaches they scramble to get out of the way, screeching at me in the process for having disturbed their peace and solitude.

As I neared my home yesterday, I saw a gaggle of geese up ahead on the road. As I got within about 30 feet, they all suddenly took to flight passing directly over my head. Next thing I know, I was being bombarded with bird excrement. Fortunately only one scored a direct hit, clipping me on my leg.

I think it's time to make peace with the geese. It's obvious they are capable of very complex thinking and know how to retaliate. Given their numbers, it's probably better not to mess with them.

No Hoosier Left Unregistered

Ever take a good look at voter registration numbers compared to the population?

According to the U.S. Census Bureau, as of 2006 Indiana's estimated population was 6,313,520. Those under 18 constitute an even 25% of the population. So 75% of the population in Indiana is eligible to vote.

Let's do the math: 6,313,520 x 75% = 4,735,140 people in Indiana could be registered to vote.

According to Indiana Secretary of State Todd Rokita, nearly 4.4 million Hoosiers have registered to vote with several weeks left in the registration period.

4,400,000/4,735,140 = 93% of the possible voters in Indiana are registered.

Does anyone really beieve that 93% of the people who can be registered are registered? When I used to go door to door to poll and register voters, I was constantly finding people who had not registered. That those unregistered adults only constitute 7% of the population is unfathomable.

The voter registration numbers are obviously inflated considerably. Why? Two reasons: Despite the efforts to develop a statewide voter registration database, the lists are still filled with people registered at multiple addresses. The second reason is that the voter registration rolls remain littered with the names of deceased voters.

When I first started as precinct committeeman, there was a purge of non-voters every 2 years. Then it was changed to every 4 years. In 1993, a newly-elected Democrat-majority Congress with newly-elected President Clinton enacted the Motor Voter Bill which prohibited states from purging voters for not voting.

So next time you hear how bad voter turnout is, remember that the number of voters is being compared to the artifically inflated voter registration rolls. As those rolls become more and more bloated, turnout numbers will continue to drop.

Maybe elected officials will wake up when the registration numbers start exceeding the population base eligible to vote. Despite the Democrats attempt to paint voter purges for non-voting as evil Republican manuevers, they serve a very important interest in protecting the integrity of the voting system.

Tuesday, September 2, 2008

The Intolerance of the Left

I've always argued that when it comes to intolerance, the liberals beat conservatives by a country mile. Andrea Tantaros, a Republican political strategist, sums up my thoughts exactly in an article she wrote:

"Liberals like to pretend they are tolerant and accepting of those who are different but when it comes to anyone not ensconced in their progressive, elitist dogma they mock and attack their lifestyle to inspire hate. But because governor Palin is endearing, authentic–and with this latest revelation–easy to identify with, she invokes panic in the left. Why else would they assail a very popular, promising lady and her children?"

Couldn't have said it better myself.

Monday, September 1, 2008

Blowing in the Wind

As Hurricane Gustav hits landfall, it looks like New Orleans might escape the most serious effect of the hurricane. Of course I remember waking up one day a few years ago and reading a headline to the effect of "New Orleads Dodges a Bullet." That bullet was Katrina. Although the hurricane didn't directly hit the city, the rainfall and the surge accompanying the hurricane did end up doing in the city.

In the light of what happened with Katrina, it would have been wise for New Orleans' officials to re-evaluate allowing the city's residents to rebuild in the lower 9th ward, St. Bernard's parish and other very low lying areas of the city. Historically, one thing that benefitted New Orleans was a marsh land buffer leading out to the Gulf. The marsh land acted as a sponge sopping up a lot of the effects of hurricanes and other storms. Officials have allowed marsh land to be developed thus reducing the city's buffer zone.

Another problem is that New Orleans, which is already below sea level, is steadily sinking. The city was built mostly on silt deposits, not exactly stable soil.

I saw a news report several months ago, about a city allowing a new mall to be built in a flood zone along the Mississippi. The area had badly flooded a couple years earlier. The city officials' praised the development as well as the new levee walls they built to try to prevent future flooding.

Folks, that water has to go somewhere. If one community increases its levee walls, then another community down river can be adversly affected.

This is one of the few areas I feel the feds need to put their foot down about developing property in flood zones and below sea level. Is nice to say New Orleans and the Mississippi River city that allowed a new mall to be built in a flood zone should take care of their own problems. The fact though is the federal government always ends up bailing those local folks out for their unwise decisions. Another reason for the feds to play a bigger role is that a decision with regard to building a levee in one area affects residents of other states. It is not an isolated decision with isolated consequences.