Oklahoma Election 2018: October 2018 Archives

Oklahoma State Question 800 would add a new section to Article 10 of the Oklahoma Constitution. It would siphon off part of the gross production tax into a fund that the State Treasurer could invest in private businesses.

I'm voting NO, AGAINST SQ 800.

Here is the new section that would be added to Article 10 of the Oklahoma Constitution:

Section 44. A. There is hereby created in the State Treasury a trust fund to be designated the "Oklahoma Vision Fund" to support the operation of state government and to provide tax relief.

B. The Oklahoma Vision Fund principal shall consist of:

1. Any amounts appropriated by the Legislature;

2. Any other deposits and apportionments from other sources as may be provided by law;

3. For the fiscal year beginning July 1, 2020, and for each fiscal year thereafter, five percent (5%) of total actual revenue from the gross production tax on oil and gas which percentage shall increase in increments of two-tenths percentage points each year thereafter; and

4. Investment and income returns from the fund principal.

C. Four percent (4%) of the average annual amount of the principal of the Oklahoma Vision Fund for the immediately preceding five (5) complete fiscal years, shall be apportioned to the General Revenue Fund not later than September 30 each year. The State Treasurer shall determine the balance of the Oklahoma Vision Fund as of June 30 each year and for the preceding five (5) years in order to apportion the required amount to the General Revenue Fund each fiscal year as required by this subsection. The deposit required by this subsection shall not begin before July 1, 2020.

D. The balance of the Oklahoma Vision Fund shall be invested by the State Treasurer in a manner consistent with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims and by diversifying the investments of the Oklahoma Vision Fund so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so.

E. The Oklahoma Vision Fund shall not be subject to the restriction of Section 15 of Article X of the Oklahoma Constitution with regard to investment of public funds and the monies in the Oklahoma Vision Fund may be invested in equity of lawful for-profit business enterprises, whether denominated as shares, stock, membership interests or similar equity securities.

F. Not more than five percent (5%) of the monies in the Oklahoma Vision Fund may be used for debt service payments due on bonds or other financing instruments issued by the State of Oklahoma, counties, municipalities, authorities, commissions, political subdivisions or any other governmental entities within the State of Oklahoma, subject to such restrictions as may be provided by law.

Giving this proposal the most generous interpretation, it appears that the intent of SQ 800 is to diversify Oklahoma's economy by investing taxes generated by the energy industry, on which Oklahoma's economy is overly dependent, into new businesses. It sets up what amounts to a venture capital fund. Ideally, it would help new businesses in new industries to survive the startup period and become established, creating jobs and tax revenue that aren't dependent on how much oil the King of Saudi Arabia decides to produce at any given time.

Putting the worst construction on it, it creates a slush fund that the State Treasurer could use to reward his friends and campaign contributors in the business world.

You'll note that the proposed amendment creates an exception to Article 10, Section 15. This is the constitutional provision banning state investment in private companies, except to a very limited extent:

Article 10, Section 15 of the Oklahoma Constitution begins:

A. Except as provided by this section, the credit of the State shall not be given, pledged, or loaned to any individual, company, corporation, or association, municipality, or political subdivision of the State, nor shall the State become an owner or stockholder in, nor make donation by gift, subscription to stock, by tax, or otherwise, to any company, association, or corporation.

In a later paragraph of Article 10, Section 15, an exception is made for the Oklahoma Center for the Advancement of Science and Technology (OCAST), which is authorized to make loans or purchase shares in companies that are "involved with research or patents from projects involving Oklahoma colleges or universities," but this discretion is limited by a requirement for a 2/3rd supermajority vote in the legislature, which also has the mandate to "establish procedures to review and evaluate the extent to which the purposes of any statute authorizing use of public funds by the Oklahoma Center for the Advancement of Science and Technology are achieved." The idea of this exception is to allow the state to help commercialize technologies that are developed at Oklahoma's universities. While you could debate the wisdom of even this much state involvement in private enterprise, it has boundaries and safeguards that SQ 800 lacks.

The office of State Treasurer, with its discretion to steer large amounts of state money to favored banks and investment companies, provides ample opportunity for corrupt dealings. Since Robert Butkin's election in 1994 the state treasury has been managed with professionalism and without any hint of scandal, but there were accusations of corruption involving the three treasurers preceding Butkin:

Leo Winters:

1974: A federal grand jury indicted state Treasurer Leo Winters, accusing him, among other things, of using his position to extort campaign money from banks. He was acquitted of four counts during a well-publicized trial, and other counts later were dropped. A few weeks after that, he was re-elected. Winters served five terms and was trying for a sixth when his 1986 campaign was doomed by allegations that a Tulsa bank may have written off millions in loans to him.

Ellis Edwards:

Bellmon was asked at a news conference about a weekend newspaper report that said Edwards' office participated in more than $2 billion in securities trades with five individuals who contributed to his 1986 election campaign after he was elected to help retire his election debt.

Claudette Henry:

Mrs. Henry has been accused by a former top assistant of covering up a securities trading scheme that led to a $6.7 million lawsuit filed by Oklahoma against brokers in California and New York. The FBI is investigating.

Without safeguards in place, there would be strong incentives for companies hoping for state investment to make campaign contributions to boost a venal and sociopathic self-salesman to the treasurer's office.

Corruption aside, SQ 800 is a bad idea because it creates yet another segregated pot of money that can only be used for one purpose. Oklahoma's budget woes are exacerbated by the proliferation of separate "pots" of taxpayer dollars that have been earmarked for one purpose or another. These laws protect favored agencies during lean economic times from sharing the burden of reduced revenues, and they limit the legislature's ability to direct taxpayer dollars to where they are most urgently needed.

Because of the potential for corruption, because of the dubious wisdom of investing public money in private enterprise, and because it further inhibits budget flexibility, wise Oklahomans will vote NO on SQ 800.

Oklahoma State Question 798 introduces the idea of electing governor and lieutenant governor on a single-ticket, but leaves the details of how that it to be accomplished to some future legislature. While I've been critical of other state questions (e.g. 793) for putting too much detail in the state constitution, the process of electing officers ought to be set out clearly and concretely in a state constitution, something SQ 798 fails to do.

Oklahoma has always elected the two offices separately. The Lieutenant Governor, like the Vice President, has a constitutional role as President of the Senate, with the ability to cast a deciding vote in case of a tie. The framers of the Oklahoma Constitution, suspicious of concentrated power, created a large number of executive offices that would be directly elected by the people, rather than appointed and confirmed. Reforms in the 1970s cut that number somewhat (we no longer elect an Inspector of Mines, for example).

Here is the constitutional language that will be enacted if voters approve SQ 798. It is a new section under Article 6.

Section 3.1. Beginning with the General Election held in 2026 and in each General Election for Governor and Lieutenant Governor held thereafter, one vote shall be cast for the candidates for those positions of the same political party. The Legislature, by law, shall provide the procedure for the joint nomination and election of candidates for Governor and Lieutenant Governor.

Will the primary runner-up automatically become the lieutenant governor nominee?Will the gubernatorial nominee pick his running mate, or will the running mate be chosen by a party executive committee? Or perhaps primary voters will choose the governor and lieutenant governor nominees independently, but they'll appear together on the general election ballot.

The current arrangement has its hazards. We have had, on occasion, a governor and lieutenant governor of opposite parties and the potential for mischief when the governor is out of state and the lieutenant governor becomes acting governor. For example, from 2003-2007, Democrat Governor Brad Henry served alongside Republican Lt. Governor Mary Fallin. Of the four Republican governors in Oklahoma history, only Keating and Fallin have had Republicans serving as Lieutenant Governor. Gov. Henry Bellmon served alongside Leo Winters in the 1960s and Robert S. Kerr III in the 1980s, and longtime Lt. Governor George Nigh served alongside Dewey Bartlett's single term in office.

SQ 798 was placed on the ballot by HJR 1019, which was approved by a vote of 34-9 in the State Senate and 68-22 in the State House.

While I'm open to the idea of having the top two offices run as a ticket, the process needs to be nailed down before we add it to the constitution. I'm voting NO on SQ 798.

Oklahoma State Question 794, on the November 6, 2016, general election ballot, substantially modifies Article 2, Section 34, of the Oklahoma Constitution, which establishes certain rights for the victims of crime. If passed, SQ 794 would replace most of the existing text, narrowing the scope to the victims themselves (currently it includes the family members of a crime victim), and providing for concrete remedies to enforce these rights.

This was initiated by the Oklahoma Legislature in the 2017 regular session, via SJR 46. The resolution was approved by a vote of 43-2 in the State Senate, by a unanimous 9-0 House rules committee vote, and a unanimous 88-0 vote in the State House. The only nay votes came from two urban Democrat state senators: Kay Floyd from Oklahoma City and Kevin Matthews from Tulsa. As a constitutional amendment, it must be ratified by a vote of the people.

One word was changed during the committee process: Sen. Nathan Dahm proposed changing the word "granted" to "guaranteed." The state can't grant us civil rights, but it has a duty to guarantee our God-granted rights.

Here is how the constitution will change if SQ 794 is approved. Additions are underlined, deletions are stricken through.

Section 34. A. To preserve and protect the rights of victims to justice and due process, and ensure that victims are treated with fairness, respect and dignity, and are free from intimidation, harassment, or abuse, throughout the criminal justice process, any victim or family member of a victim of a crime has the right to know the status of the investigation and prosecution of the criminal case, including all proceedings wherein a disposition of a case is likely to occur, and where plea negotiations may occur. The victim or family member of a victim of a crime has the right to know the location of the defendant following an arrest, during a prosecution of the criminal case, during a sentence to probation or confinement, and when there is any release or escape of the defendant from confinement. The victim or family member of a victim of a crime has a right to be present at any proceeding where the defendant has a right to be present, to be heard at any sentencing or parole hearing, to be awarded restitution by the convicted person for damages or losses as determined and ordered by the court, and to be informed by the state of the constitutional rights of the victim.

B. An exercise of any right by a victim or family member of a victim or the failure to provide a victim or family member of a victim any right granted by this section shall not be grounds for dismissing any criminal proceeding or setting aside any conviction or sentence.

C. To secure justice and due process for victims throughout the criminal and juvenile justice systems, a victim of a crime shall have the following rights, which shall be protected by law in a manner no less vigorous than the rights afforded to the accused: to be treated with fairness and respect for the victim's safety, dignity and privacy; upon request, to reasonable and timely notice of and to be present at all proceedings involving the criminal or delinquent conduct; to be heard in any proceeding involving release, plea, sentencing, disposition, parole and any proceeding during which a right of the victim is implicated; to reasonable protection; upon request, to reasonable notice of any release or escape of an accused; to refuse an interview or other request made by the accused or any person acting on behalf of the accused, other than a refusal to appear if subpoenaed by defense counsel; to full and timely restitution; to proceedings free from unreasonable delay and a prompt conclusion of the case; upon request, to confer with the attorney for the state; and to be informed of all rights enumerated in this section.

B. The victim, the victim's attorney or other lawful representative, or the attorney for the state upon request of the victim may assert in any trial or appellate court, or before any other authority with jurisdiction over the case, and have enforced the rights enumerated in this section and any other right afforded to the victim by law. The court or other authority with jurisdiction shall act promptly on such a request. This section does not create any cause of action for compensation or damages against the state, any political subdivision of the state, any officer, employee or agent of the state or of any of its political subdivisions, or any officer or employee of the court.

C. As used in this section, a "victim" includes any person against whom the criminal offense or delinquent act is committed or who is directly and proximately harmed by the commission of the offense or act. The term "victim" does not include the accused or a person whom the court finds would not act in the best interests of a deceased, incompetent, minor or incapacitated victim.

D. The Legislature, or the people by initiative or referendum, has the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by this section, including the authority to extend any of these rights to juvenile proceedings and if enacted by the Legislature, youthful offender proceedings.

E. The enumeration in the Constitution of certain rights for victims shall not be construed to deny or disparage other rights granted guaranteed by the Legislature or retained by victims.

While I'm leery about creating new "positive rights" that require the state to take certain actions (as opposed to "negative rights" that limit the state's power, such as those enshrined in the Bill of Rights) and putting this level of detail in the State Constitution, since this provision is already in the Oklahoma Constitution, it makes sense to amend it in the same place. The proposed changes appear to fix practical problems created by the original amendment, approved by State Question 674 in 1996, and carefully avoids infringing upon the due-process rights of the accused.

MORE:

Ballotpedia's detailed discussion of Oklahoma SQ 794 includes a side-by-side comparison of the existing section with the proposed replacement.

State Question 793 would add a section to Article 20 of the Oklahoma Constitution. Currently that article of the Constitution contains only two short sections: Section 1 guarantees the right to produce and sell "denaturized alcohol" -- ethyl alcohol adulterated with poison so that it can be used as an industrial solvent, but not consumed; this would have been an important law during Oklahoma's 52 years of prohibition. Section 2 defines the specific gravity of kerosene.

Here is the full text of the proposed amendment to the state constitution. If you vote Yes on SQ 793, this will be added as Article 20, Section 3.

RIGHT OF OPTOMETRISTS AND OPTICIANS TO PRACTICE IN RETAIL MERCANTILE ESTABLISHMENT

A. No law shall restrain, abridge or infringe on the ability of optometrists or opticians to practice their respective professions within a retail mercantile establishment.

B. No law shall discriminate against an optometrists or opticians based to the location and setting of their practice.

C. No law shall require an optometric office located within a retail mercantile establishment to have an entrance opening on a public street, hall, lobby, or corridor.

D. No law shall restrain, abridge or infringe on the ability of a retail mercantile establishment to sell, allow the sale, or provide for the sale of optical goods and services, upon prescription, to the general public within the premises of the retail mercantile establishment.

E. Notwithstanding the limitations of this section, the Legislature may, by statute:

1. limit or prohibit optometrists from performing laser or nonlaser surgical procedures within a retail mercantile establishment;

2. limit the number of office locations at which an optometrist may practice;

3. maintain licensing requirements for the practice of optometry, provided those requirements do not impose restrictions on the location where services are provided or otherwise conflict with subsections A-D of this section;

4. require that an optometric office, when located within a retail mercantile establishment, be located within a separate area or room of that establishment, provided that any such requirement must permit direct access to and from the optometric office from inside the retail mercantile establishment; or

5. impose minimum health and safety standards for optical goods and services, provided such standards do not discriminate against any provider of optical goods and services.

F. Nothing in this section or in Article 23, § 8 of this Constitution shall be construed as prohibiting optometrists or opticians from agreeing with a retail mercantile establishment to limit the scope of their practice.

G. This section shall become effective upon adoption, and laws in conflict with this section shall be deemed null and void. After this section is effective, an optometrist, optician, or retail mercantile establishment may bring a declaratory judgment action to determine whether this section affects the validity of a law.

H. As used in this section:

1. "Law" means any state or local law, including statutes, regulations, rules, ordinances, zoning provisions, and judicial decisions, either now in force or hereafter enacted or issued;

2. "Optometrist" means a person licensed in Oklahoma to practice optometry;

3. "Optician" means a person who fills prescriptions for ophthalmic lenses, including but not limited to spectacles and contact lenses, from licensed optometrists or ophthalmologists;

4. "Optical goods and services" means eyewear, including prescription spectacles and contact lenses, and all services associated with providing, modifying, and repairing such eyewear; and

5. "Retail mercantile establishment" means a business establishment selling merchandise to the general public.

While I'm sympathetic with the stated objective of increasing competition and convenience for the purchase of eyeglasses, I can't agree with the idea of enshrining a set of very specific rules and regulations pertaining to one profession in the constitution. This sort of thing ought to be statutory, where rules and regulations can be adjusted as necessary through the normal process of legislation. I had the same objection to the 2016 "alcohol modernization" proposal: While I supported the notion of making strong beer and wine available for sale in grocery stores, I felt that the proposal baked too many special privileges and carveouts into the constitution.

Rather than pushing for profession-specific constitutional amendments, we should consider an amendment that requires a supermajority for the imposition of regulations on commercial activity or the imposition of licensing requirements, along with a constitutional requirement to sunset regulations after a certain number of years. There is a sort of legislative inertia that keeps existing regulations in place, reinforced by the principle of concentrated benefit, diffuse cost -- organizations that have a vested interest in existing legislation will lobby and contribute to keep it from being changed.

Beyond the impropriety of using the constitution to establish the legislative goals of a large corporation, opponents of the measure point out that Oklahoma's proposed constitutional amendment would enshrine a practice that is prohibited in 48 other states, calling attention to subsection F:

F. Nothing in this section or in Article 23, § 8 of this Constitution shall be construed as prohibiting optometrists or opticians from agreeing with a retail mercantile establishment to limit the scope of their practice.

Article 23, Section 8, says you can't sign a contract that gives away your constitutional rights. "Any provision of a contract, express or implied, made by any person, by which any of the benefits of this Constitution is sought to be waived, shall be null and void." Walmart's proposed constitutional amendment would create an exception to that guarantee.

Tulsa optometrist Jacoby Dewald has posted an essay on Facebook stating that "The Texas Optometry Act PROHIBITS commercial retailers of ophthalmic goods from attempting to control the practice of optometry; authorizes the Optometry Board and the Attorney General to sue a violator for a civil penalty; and provides that "[a] person injured as a result of a violation . . . is entitled to the remedies."

He goes on to explain why this provision was included in Oklahoma's proposed law:

Walmart has attempted to control the doctors in other states in which it is illegal and has been sued, resulting in the paying of monetary damages to the doctors. Walmart's way of avoiding this in Oklahoma is to dig deep in their pockets, run a multi-million dollar campaign deceiving voters into thinking this is the same laws as other states, then reap the rewards of an unprecedented CONSTITUTIONAL amendment.

Jacoby also calls attention to subsection G, which makes the nullification of conflicting laws a matter between the retailer and the courts. Rather than spell out which laws are being repealed before the vote is taken, there is this blanket statement: "This section becomes effective immediately, and laws conflicting with this section shall be deemed null and void. After this section becomes effective, the retail mercantile establishment may bring a declaratory judgement action to determine whether this section affects the validity of a law."

I encourage you to vote NO on State Question 793. Let's defeat this, but then encourage our legislators to support sensible modernization of laws to expand consumer choice without enshrining corporate interests in state law.

MORE: Ballotpedia has a comprehensive collection of links and videos, pro and con, for Oklahoma SQ 793.

I'll be on 1170 KFAQ this morning (Monday, October 22, 2018) at 8 a.m. with Pat Campbell to discuss the state questions on Oklahoma's November 2018 general election ballot. Tune into 1170 on your AM dial, or listen live on the internet. (UPDATE: Here is a link to my discussion of the 2018 Oklahoma state questions with Pat Campbell.)

I plan to post a detailed discussion of each of the five questions over the next few weeks, but for starters, here are links to the actual legislative proposal we are voting on.

When we cast a vote on a state question, we are acting as legislators, either enacting a constitutional amendment or approving a statute. True, we only can vote aye or nay, and there's no opportunity to propose an amendment, but we make the final decision on these proposed laws and constitutional provisions.

You wouldn't want a legislator to cast a vote without reading the bill; neither should you vote on a state question without reading the legislation you're being asked to approve. What you will see on your ballot paper -- the ballot title -- is not the legislation. It is a summary of the proposal that may reflect the biases of the people who did the summarizing. Best to think of the words on the ballot as a memory prompt, but nothing more.

Here are links to the Oklahoma Secretary of State website for each of the five state questions:

• SQ 793: Constitutional amendment to prohibit certain legislation about opticians. Would create a loophole to constitutional provision nullifying contracts that waive constitutional rights. This was proposed via initiative petition.
• SQ 794: Constitutional amendment to establish victims' rights. This was proposed by the legislature.
• SQ 798: Constitutional amendment to elect governor and lieutenant governor on a single ticket, by a method to be decided later. This was proposed by the legislature.
• SQ 800: Constitutional amendment to create a "vision fund." This was proposed by the legislature.
• SQ 801: Constitutional amendment to allow school district voters to approve property tax increases to be used for operations as well as buildings. This was proposed by the legislature.

MORE: Here are links to my analysis and recommendation on each of the state questions.

• SQ 793: Optometrists and opticians in retail establishments: NO
• SQ 794: Reforming Victim's Bill of Rights: YES
• SQ 798: Electing Governor and Lt. Governor on the same ballot: NO
• SQ 800: Creating the Oklahoma Slush Vision Fund: NO
• SQ 801: Giving local school districts flexibility in use of bond funds: YES