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Featured Health Care NewsTracker

New Abortion Regulations Sent to Governor

Both chambers of the Tennessee Legislature have approved a duo of bills aimed at reestablishing state government regulation of abortions.

One bill requires women to wait 48 hours before obtaining an abortion. The other, that abortion clinics be regulated by the state. Both passed Tuesday along mostly partisan lines in the Republican dominated lower chamber. Having already been approved in the Senate, the bills go now to Gov. Bill Haslam, who has indicated he’ll likely sign them.

Passage of the measures represents a milestone for anti-abortion activists, who last year successfully convinced a majority of the state’s voters to pass an amendment declaring that abortions are not protected under the Tennessee Constitution. That constitutional revision was presented to the voters in an effort to nullify a Tennessee Supreme Court decision in 2000 that struck down several state abortion laws on the books at the time, including certain restrictions on outpatient abortions and a mandatory waiting period.

Democrats argued strenuously against both the abortion bills on the House floor, alleging that they amount to transparent attempts to make obtaining abortions more difficult and expensive for women.

Republican Susan Lynn of Mt. Juliet, who sponsored the proposal that clinics be monitored by the state as surgery centers, rejected that charge. She said new regulations are necessary “to protect the health and safety of women.”

“We are placing the health of women and the welfare of women in jeopardy by not having licensure and inspections,” Lynn said. She added, “The Legislature, in its wisdom, long ago saw fit to have these facilities licensed and inspected (but) the courts did remove that on a legal technicality.”

House Democratic Caucus Chairman Mike Stewart of Nashville challenged Lynn to show examples in Tennessee “where someone was injured” at an abortion facility as a result of poor government oversight. When she did not, Stewart suggested the bill was motivated more by political than safety concerns.

Lynn responded that proponents of the bill want to impose the regulations in hopes of averting future misfortunes. “Do we need something terrible to happen to somebody? No, we don’t, we don’t,” she said. “We should just be wise and have clinics licensed and inspected, for the health and safety of women.”

The measure, HB1368, passed 79-17.

The bill to mandate a 48-hour waiting period after a woman first approaches a physician about obtaining an abortion was subject to about an hour of debate. Democrats derided the measure as an attack on women’s rights.

Rep. John Ray Clemmons of Nashville said the stipulation “will have the ultimate effect of creating a substantial obstacle in the path of a woman seeking to exercise her constitutional right to choice.”

Rep. Johnnie Turner of Memphis argued that it “works disproportionately against poor women who cannot afford to fly to another state to have an abortion.”

The Republican sponsor of the measure, Matthew Hill of Jonesborough, countered that the waiting period is necessary for women to weigh the potential risks and consequences of getting an abortion.

“We are not restricting access to abortion in the state of Tennessee,” said Hill. “What we are doing is making all the information and facts available to the ladies and to the girls in order to make a careful and fully informed decision.”

He said waiting periods exist already in states surrounding Tennessee. He said the United States Supreme Court has twice upheld so-called “informed consent.”

The bill passed 79-18.

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Featured Health Care NewsTracker

Governor: Overbey Sponsoring ‘Insure Tennessee’ in Senate

Gov. Bill Haslam has announced that Doug Overbey, a liberal east Tennessee Republican, will sponsor the administration’s Medicaid expansion proposal in the state Senate next week.

The governor made the announcement in Murfreesboro after finishing up the last of nine Medicaid expansion-related meetings with lawmakers across the state that he’s called the last several days. Haslam has been trying to reassure reluctant Republican legislators that his proposal to use federal funding through the Affordable Care Act to fund a new program called “Insure Tennessee” makes good policy sense, and won’t over time start eating further into the state’s budget.

The General Assembly is scheduled Monday to begin deliberating on a “waiver amendment request” asking the federal government to fund Insure Tennessee’s two new programs of health care coverage for about 300,000 uninsured Tennesseans with low or no incomes.

Typically, the Republican or Democratic Party leaders in each chamber carry legislation for a governor who shares their partisan loyalties. In the House, that’s Majority Leader Gerald McCormick, who, like Haslam, is a Republican.

But Mark Norris of Collierville, the Republican Leader in the Senate, hasn’t indicated any interest in stepping up to steer the governor’s effort through the legislative process.

Norris has suggested Haslam didn’t do a very good job keeping lawmakers apprised along the way of his negotiations with the federal government on expanding Medicaid.

Even last summer, when the governor signaled that he was making progress with the Obama administration on developing an expansion plan that Haslam thought could win enough votes to pass the GOP supermajority controlled Legislature, Norris was letting it be known he felt out of the loop.

Norris told the Tennessean in August that Haslam seemed to him “not very serious about whatever he has in mind regarding Medicaid expansion, because he hasn’t conferred with the General Assembly.”

In December, the governor announced he’d secured “verbal approval” from the Obama administration and he intended to press ahead for state legislative approval. But earlier this month Norris again expressed discontent with the Haslam administration’s level of communication with Tennessee lawmakers.

Haslam told reporters Thursday afternoon he’s nonetheless confident Overbey can pick up the ball and run with it in the Senate. The governor noted that Overbey, a lawyer from Maryville, has often in the past sponsored health care-related legislation.

“I think he understands the issue very well,” Haslam said.

Overbey was among those who applied for the job of Tennessee attorney general last summer. But he ultimately lost out to Herbert Slatery, the governor’s chief legal adviser at the time.

Requests for comment from Overbey and Norris hadn’t yet been answered when this story posted.

Sen. Brian Kelsey, a Germantown Republican who’s an unapologetic adversary of the governor’s “Insure Tennessee” Medicaid expansion plan — or anything that can be seen to advance Obamacare — said he’s hopeful the friction in the upper chamber is a sign Haslam’s legislation is destine to stall.

“I think this is the first time a majority leader has refused to sponsor the governor’s agenda since the income tax,” Kelsey wrote in an emailed statement to TNReport. “I hope this resolution meets the same fate.”

Both Overbey and Kelsey serve on the Senate Judiciary Committee. Kelsey is the chairman, Overbey the vice chair.

Their antipathy toward one another with respect to the governor’s plan was on display earlier this week, when they clashed over Kelsey’s decision to press forward with a hearing he’d called to try and raise doubts about legal issues surrounding “Insure Tennessee” — and to call into question whether the federal government is bound to abide by Medicaid-related agreements it makes with the state going forward.

The Haslam administration has indicated that, based on an opinion from state Attorney General Slatery and a written statement from U.S. Health and Human Services Secretary Sylvia M. Burwell, it is comfortable with assurances from the Obama administration that if Tennessee isn’t happy with its Medicaid expansion, it doesn’t have to keep it.

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Featured Health Care NewsTracker

Haslam’s Customized Medicaid-Expansion Plan Getting First Committee Look Next Week

The Legislature’s not scheduled to take up Gov. Bill Haslam’s voucher-driven plan to widen the scope of government-financed heath-insurance coverage until Feb. 2. But the Senate Judiciary Committee has scheduled a meeting next week to give the governor’s proposal a preliminary probe.

A press release issued by the upper-chamber GOP majority caucus Wednesday indicated the Judiciary Committee plans to meet on Tuesday afternoon “to study the legal issues raised by the governor’s proposed Obamacare Medicaid expansion plan.”

The committee is chaired by Sen. Brian Kelsey, a Germantown Republican who last year sponsored the “Stop Obamacare Act.” That legislation requires the governor to win the General Assembly’s approval for any deals he negotiates with the federal government to sign Tennessee up for Medicaid expansion under the Patient Protection and Affordable Care Act.

Kelsey is among the General Assembly’s most outspoken opponents of Obamacare. He’s declared his intention to try to kill the governor’s “Insure Tennessee” initiative “as soon as possible.”

Haslam’s Insure Tennessee plan would establish a two-year federally funded pilot program in which taxpayers would subsidize private health-insurance coverage for hundreds of thousands of Tennesseans making 138 percent of the designated poverty level, which for individuals is $16,100.

In the formal TennCare “Waiver Amendment Request” submitted earlier this month asking the Obama administration’s permission to embark upon the plan, the Haslam administration claimed, “Insure Tennessee will not only provide coverage for low-income Tennesseans, but it will prepare these members for a transition to private market coverage by promoting participant engagement and personal responsibility and by incentivizing appropriate use of the health care system.”

“Insure Tennessee is distinct from the regular Medicaid program in several important ways,” the Haslam administration claims. “It will leverage opportunities in the private market, such as Employer-Sponsored Insurance that is already available to certain applicants, and it will seek to reward behaviors that lead to better health, increased personal responsibility, and reduced health care costs.

However, powerful Senate Republicans in addition to Kelsey are skeptical of anything that binds the state to future financial commitments from the federal government — and in particular, anything related to the Obama administration’s signature health care reform law.

Finance, Ways and Means Chairman Randy McNally, R-Oak Ridge, said he’s on the fence with respect to the Haslam’s plan. However, McNally’s assessment of Obamacare isn’t ambiguous. The Affordable Care Act “was probably the worst piece of legislation I have ever seen passed by the federal government,” he told TNReport last week.

Earlier this month McNally submitted a letter to the state attorney general — former Haslam administration chief lawyer Herb Slatery — asking a series of questions about issues surrounding implementation of Insure Tennessee, and its potential legal ramifications on TennCare and other aspects of the state’s health care system.

Among the key points of McNally’s inquiry is whether the state can indeed opt out of the ACA-funded Medicaid expansion arrangement if the promised federal money tapers off from previously agreed-upon levels.

The attorney general’s office had yet to post a response to the Finance Committee chairman’s request as of Wednesday. McNally said last week he anticipates Slatery and his staff will provide answers to the legal questions he outlined in the letter in time for the special sessions that starts in less than two weeks.

On Wednesday, Gov. Haslam was campaigning for his Medicaid expansion plan in West Tennessee — and trying to make the case that Insure Tennessee isn’t really Obamacare. According to the Chattanooga Times Free Press, the governor told a group of lawmakers in Jackson that he, too, wants assurances from the Obama administration that Tennessee won’t be “making an irrevocable decision” in the event that the state approves Insure Tennessee and the federal government alters the terms of the funding formula.

Kelsey, who attended the governor’s presentation in Madison County, said in an emailed statement that while he appreciates the effort Haslam looks to be making to build support for the plan, “there are still many legal questions to be answered.”

“I look forward to diving into the legalities in detail next week,” wrote Kelsey. He added, “Regardless of what you call it, the governor is requesting an expansion of Medicaid for able-bodied adults under Section 1396a of Obamacare.”

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Featured Health Care NewsTracker

House Will Get First Crack at Haslam’s Medicaid Expansion Plan

It looks as if the Tennessee House of Representatives will take the lead on deliberations over Gov. Bill Haslam’s proposal to expand state Medicaid eligibility using federal Obamacare dollars.

The General Assembly is scheduled to go into an “extraordinary session” beginning Feb. 2 to approve or reject the Haslam administration’s “Insure Tennessee” plan, the centerpiece of which is a system of Affordable Care Act-financed vouchers for lower income residents to purchase private-sector health insurance.

The “vehicle” in the Legislature for discussing Insure Tennessee will likely be a “joint resolution” originating in the House that’ll be carried by the chamber’s GOP majority leader, Gerald McCormick of Chattanooga.

Before it gets to the full floor of the 99-member chamber, though, the joint resolution will have to win approval from several committees and subcommittees, among them the House Insurance and Banking Committee, the Health Committee, the Finance Committee and the Calendar and Rules Committee, a spokeswoman for Speaker Beth Harwell, R-Nashville, told TNReport.

McCormick indicated this week that the vote-count within the House GOP caucus appears very tight at present. There are 73 Republicans and 26 Democrats in the House. Fifty votes are required to pass a measure out of the chamber.

Although the Senate will likely hold hearings and discussions about Insure Tennessee while the resolution is working its way through the House, upper-chamber Republican leaders said Senate committee-votes won’t be taken until after — and only if — the resolution clears the House.

“If it fails in the first House sub(committee), we’re done,” Lt. Gov. Ron Ramsey, R-Blountville, who presides over the Senate, told majority-party lawmakers during a caucus meeting Thursday afternoon.

Both Ramsey and Senate Majority Leader Mark Norris estimate that as many as three-quarters of their caucus remains undecided on the Haslam plan. Among them are Jack Johnson of Franklin and Randy McNally of Oak Ridge, who chair powerful committees that will likely handle the resolution.

Republicans outnumber Democrats in the Senate by a tally of 28-5. It takes 17 votes to pass a measure in the Senate.

“We have members who are outspokenly opposed to the proposal,” Norris said at the Senate GOP caucus gathering. “There are other members here supportive of it. But most members are just in the middle with open minds.”

Norris, who has himself voiced reservations about Haslam’s plan, said he’s hopeful there’s a full and robust discussion about all facets of the proposal. He described Insure Tennessee as “very complicated” in the way it touches on numerous aspects of state and federal law, the Internal Revenue Code and previous developments in the history of TennCare, the state’s program for administering the federal Medicaid system.

“All those things interrelate,” said Norris, a lawyer from Collierville. “Regardless of which side of the issue you may find yourself on, all these issues could be very important, whether you are against it, whether you are for it or whether you are unsure which way to go.”

He added, “What we are trying to do is lay out a timely and orderly process to get everyone through it in the best way possible, so that you can truly say that you are representing your constituents.”

Norris said one of the goals is to avoid the accusation of passing legislation “and not knowing what is in it.”

“Nobody wants to be in that situation,” he said.

Insure Tennessee has been offered by the administration as a two-year pilot program, and it includes incentives for healthier lifestyles. It is designed to enable the state to draw down Medicaid expansion funding through the Patient Protection and Affordable Care Act to cover people making up to 138 percent of the poverty level — which could translate to more than 450,000 potentially eligible Tennesseans.

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Featured Health Care NewsTracker

Lawmakers, Public to Get First Detailed Look at Haslam’s Obamacare Compromise

The specifics of Tennessee Gov. Bill Haslam’s plan to expand Medicaid eligibility under the Patient Protection and Affordable Care Act are set to be released Thursday.

The Republican governor announced Wednesday that he’s ready to unveil the particulars of an arrangement he says he’s reached with the Obama administration on granting government-funded health insurance to a greater swath of lower-income Tennesseans.

Last month Haslam made the surprise announcement that his administration had developed a plan for getting in line with the other 27 states in the country that have voluntarily signed on to one of Obamacare’s key provisions. Tennessee is among a handful of others that haven’t yet approved Medicaid expansion, but are considering it.

Of the eight states that border Tennessee, only Arkansas and Kentucky have OK’d Medicaid expansion through the ACA. However, North Carolina Gov. Pat McCrory, as well as Utah Gov. Gary Herbert, both Republicans, met with the president this week about expansion proposals they are contemplating. Like that offered by Haslam, the proposals being offered up by McCrory and Herbert are unique to their respective states.

Dubbed “Insure Tennessee,” Haslam’s plan was first cursorily outlined in December. It includes two “private market choices” involving vouchers and health reimbursement accounts for an estimated 200,000 people to get federally subsidized insurance.

The governor promised that Insure Tennessee won’t cost state government anything — that any of it not paid for by U.S. taxpayers would be borne by the Tennessee Hospital Association’s members. Haslam called the plan “a catalyst to fundamentally changing health care in Tennessee.”

But he acknowledged Wednesday that he’s going to face stiff resistance from members of his own party.

“This is a big deal,” the governor said. He added, “We knew up front that this would be a controversial proposal, and I think it is up to us to make the case why this is the right thing to do for Tennessee, both for the long-term physical health of the state, but also the financial health of the state — as well as everybody else impacted from hospitals to individuals who might be covered by the plan.”

Last year the General Assembly passed a law requiring the governor to win the Legislature’s blessing to involve the state in the ACA’s Medicaid expansion scheme. That law was labeled the “Stop Obamacare Act” by its sponsors, and it was supported by all Republicans in both chambers of the GOP supermajority-controlled statehouse.

Asked during a press conference Wednesday if getting the General Assembly’s stamp of approval on Insure Tennessee will require the support of Democrats, the governor said, “I think that is probably a fair observation — that for this to pass, all the Democrats will have to be for it, and obviously we will have to have enough people to get the 50 in the House and the 17 in the Senate.”

Republicans control the Senate 28-5. In the House there are 73 GOP lawmakers and 26 Democrats.

The House and Senate sponsors of the 2014 Stop Obamacare Act — Rep. Jeremy Durham of Franklin and Sen. Brian Kelsey of Germantown — both indicated last month after the outlines of the Insure Tennessee plan were announced that they won’t support it.

“Republicans were elected to reduce entitlements and decrease the national debt, not to expand entitlements and increase the national debt,” Durham, the lower chamber’s majority whip, told TNReport Dec. 16. “Republicans are winning the argument against Obamacare at the national level and I just don’t see that this is the time to compromise our conservative principles at the state level.”

At the time, Durham said he didn’t anticipate Haslam’s plan had “any chance of passing.”

Kelsey indicated that while he thinks GOP lawmakers will go into discussions of Haslam’s plan with “an open mind,” he’s likely not voting for it himself.

“I have proposed similar reforms for our neediest Medicaid recipients in the past,” Kelsey said through a spokesman last month. “Unfortunately, the governor’s plan is proposed as an expansion for able-bodied, childless adults. Tennesseans elected Republicans to shrink government, not expand it– and certainly not to expand it for Obamacare.”

The governor appears committed to battling conservatives in his party over the issue. But he told reporters Wednesday he fully comprehends where fellow Republicans who oppose him on Medicaid expansion are coming from.

“Believe me, I understand how hard this is. We worked on it forever to get it right,” said Haslam. “I hope people appreciate that we have negotiated a really good deal for Tennessee. It works financially for the state, as well as long-term who we want to be as a state. Obviously, everybody has to dig into that and decide for themselves.”

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Education Featured NewsTracker

‘Listening’ Tops Priority List for Lipscomb’s Dean McQueen in New Role as TN Education Dept Chief

Gov. Bill Haslam’s choice to take over for departing state Education Commissioner Kevin Huffman is a resident Tennessean and a Nashville university professor who says she’s passionate about bringing out the best in both students and teachers.

Candice McQueen, dean of the Lipscomb University College of Education, was named the next head of the Tennessee Department of Education Wednesday. She’ll assume Huffman’s duties on Jan. 20.

Huffman, who moved to Tennessee in 2011, often clashed with teachers and local district administrators as he served as point man for the Haslam administration’s education overhaul. He announced last month that he wouldn’t be sticking around for the governor’s second term.

Haslam is hopeful that McQueen, who is quite literally a teacher’s teacher, can ease some of the resentment felt by those who believe Huffman neither put enough energy into understanding day-to-day classroom challenges nor adequately consult with teachers and local district officials about their concerns over new policies.

“Lipscomb’s college of education has consistently produced some of the very best teachers in our state,” said the governor as he introduced McQueen during a state Capitol press conference on Dec. 17. Haslam indicated he’s optimistic McQueen’s background and experience will ensure she earns’ teachers’ respect while demanding they commit to maximum professional effort.

“There is nothing really that is more critical to us than making certain that our teachers have the right preparation and we have someone leading our department that can play a leadership role there,” said Haslam.

McQueen herself taught kids in elementary and middle school, he said — so she therefore “brings the experience of being a teacher, as well as preparing teachers to teach.”

McQueen listed “listening” as her first priority. She said she “looks forward to actually driving across the state, and meeting with the great people that are working as educators.”

“I want to meet with superintendents, certainly legislators, and I want to listen to parents and school leaders to hear from them what is working, and what do we still need to do,” she said during her prepared remarks. “We are going to stay focused on what we know already works, and we are going to continue to make the progress we have already made in Tennessee.”

In general, McQueen said she believes “Tennessee is headed in the right direction, and we need to remember that.”

She noted the state’s top national status in 2013 as most-improved in the area of student achievement. Both McQueen and Haslam lauded Commissioner Huffman for his focus on lifting learning expectations in Tennessee classrooms.

But McQueen also shares the governor’s worry that too many young adults in Tennessee often lack adequate academic preparation to successfully make the jump from high school to higher ed. “I know firsthand what college readiness looks like from my experience,” McQueen said. “I also know the struggles, the financial implications and the sense of failure that occurs when students come to college not prepared.”

“Every Tennessee student needs to be college- and career-ready when they leave high school,” she said.

And therein lies one of the areas that’ll likely provide McQueen an early political challenge. “I want to make sure that we have standards that are at the level they need to be to ensure that more students are ready for college, and what is after college,” she said.

Over the past year, Common Core has become what’s likely the hottest topic of controversy in American public education. McQueen will be dealing with many Tennessee lawmakers, parents, teachers and local school board members who oppose the nationally focused K-12 math and reading benchmarks.

Like the governor, McQueen has been a vocal backer of Common Core. How she handles diverse viewpoints on the thorny issue may set the tone for her tenure as the state’s highest education official. When the matter came up during her first Q&A with the press Wednesday, McQueen said she’s steadfastly “in favor of high standards,” but added that “the forms that they take is somewhat irrelevant.”

Common Core in Tennessee is currently undergoing a review that the Haslam administration initiated this fall in response to growing public and political dissatisfaction with it. And McQueen was among several outspoken Common Core promoters the governor picked to serve on the review committees assigned to “gather input and make recommendations” about Common Core and academic standards in general for Tennessee’s government-run K-12 system.

The goodwill, deference and confidence she can expect from lawmakers in her first year on the job — particularly among Republicans who made opposition to Common Core an issue during the last legislative session and the subsequent election season — may depend a lot on how McQueen navigates that minefield.

Asked by a reporter if she thinks Common Core has been “misunderstood,” McQueen hesitated for a moment, then responded, “Potentially misunderstood.”

“That’s a very difficult question, because that would be individually dependent on whether that’s been misunderstood, or folks feel like they haven’t understood it well,” she said.

McQueen added, “I think that at this point we need to be talking about the standards review process and making sure that’s done remarkably well, and that at the end of it we are very proud of the work that’s been done, and we have Tennessee academic standards that are in place that we can all share in responsibility for assessing and doing and working and making sure our classroom teachers are doing those things well.”

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Featured Liberty and Justice NewsTracker

Amendment 2 — What’s Tennessee Going to Do?

After the votes on Amendment 2 are tallied Tuesday night, Tennessee will embark upon a new chapter in its long and contentious judicial selection saga.

But regardless of the outcome, don’t expect an end to debate — or legal challenges — over issues surrounding the state’s method of picking appellate and Supreme Court judges.

John Jay Hooker, a four-time candidate for governor (including this year as an independent) and the state’s most indefatigably pugnacious disparager of Tennessee’s judicial selection system, told TNReport on Friday that even if Amendment 2 passes, he’s not done filing the fiery-worded legal attacks for which he’s infamous. Not by a long shot.

In fact, the brawling 84-year-old barrister said he plans to continue the fight for direct elections of all Tennessee’s judges for as long as his health and longevity permit, for as long as necessary.

Actually, if Amendment 2 goes down, re-instituting direct judicial elections might be one of the hottest issues on the legislative docket when the Tennessee General Assembly convenes in January.

Hooker’s not holding his breath in anticipation of that, though. He has a lot of years invested in trying to roll back what he regards as a devious, as-yet mostly successful multi-decade scheme by Tennessee’s political elite to seize control of the state’s court system. But while Hooker passionately believes that choosing who ascends to the highest thrones of the judiciary is a role properly left to the people of Tennessee, he’s fully in tune to the reality that most of the state’s political muscle is pressing royally against that outcome.

Hooker’s under no illusions when it comes to the chances of defeating Amendment 2. The current appointment-and-retention system, borrowed from Missouri and renamed the “Tennessee Plan” in 1971, was birthed under suspect pretenses — namely, that it would remove politics from judicial selection. Critics argue that all the Tennessee Plan really did was remove the politics from public view.

Amendment 2 has been cloaked to hide its most objectionable aspect as well, Hooker said.

Omitting What They’re Trying to Erase

Amendment 2 is both difficult to understand and fails to present crucial information voters need to make an informed decision, Hooker contends.

“The presentation of the amendment on the ballot is flawed,” he said. “The voters are at a great disadvantage, and because they can’t be certain what they are voting for or against, it is not a fair election.”

Google ChromeScreenSnapz002The Amendment 2 ballot question asks, “Shall Article VI, Section 3 of the Constitution of Tennessee be amended by deleting the first and second sentences and by substituting instead the following.” It goes on to include the proposed new language. (See the sample ballot question at left.)

What’s missing from the question, however, is the substantive wording of the Tennessee Constitution that, if Amendment 2 is approved, will henceforth go missing from the state’s guiding document: “The judges of the Supreme Court shall be elected by the qualified voters of the state.”

That sentence is the essential provision voters are being asked to blot out. And it also happens to have been the source of more than 40 years of legal and political controversy. For decades judges of the Supreme Court and the appellate judiciary have been appointed by the governor, not chosen by the people, and for decades people have been complaining about it.

By contrast, Amendment 4 on the ballot, which would expand the kinds of charitable organizations legally permitted in Tennessee to conduct fundraising lottery events, includes both the proposed new language and the Constitution’s existing language voters are being asked to amend.

Adding to the ballot-question omission issue is the “Yes on 2” campaign’s assertions in TV commercials and support-solicitation events around the state that the measure “strengthens the voice of Tennesseans in selecting our appellate court judges” and “protects our right to vote for judges.”

Call that fib, fiction or falsehood, it’s not the truth, said Hooker. His assessment in that regard was echoed recently by a disgruntled subset of the Tennessee District Attorneys General Conference.

“The amendment takes away your right to vote, it doesn’t protect your right to vote,” Hooker said. “To say otherwise and to spend all this money advertising that it does is a colossal fraud being perpetrated by men and women who are the highest of Tennessee’s authority figures. It is a disgrace.”

Players Willing to Pay

The “Yes on 2” campaign, which includes a sweeping coalition of the state’s most influential politicians, lawyers and special interests — and even Supreme Court justices themselves, like Jeffrey Bivins and Sharon Lee — has spent vastly more money than the “Vote No on 2” effort. Campaign finance disclosures with the state indicate “Yes on 2” has reported $1.1 million in expenditures, while “Vote No on 2” has spent about $35,000.

Proponents of Amendment 2 argue that by eliminating the Constitution’s existing voter-approved pronouncement that “The judges of the Supreme Court shall be elected by the qualified voters of the state,” dissenters will no longer have any legal or political ammunition for calling into question the legitimacy of the state’s judicial selection system.

“We’re trying to clarify what it should be so that everybody knows and there is no question later on about appointing judges to the highest positions in our state,” said Attorney General Herb Slatery following his swearing-in as the state’s top lawyer last month. “That’s a question we really should not be asking — whether they are constitutionally and validly seated in their seats.”

Slatery said that while “in some people’s minds” there are still questions about the Tennessee Plan’s constitutionality, “it is more perception than legal.”

“We’ve got three Supreme Court decisions upholding the current system, but that doesn’t seem to have answered the question,” said Slatery, who prior to being appointed attorney general by the Tennessee Supreme Court served as Gov. Bill Haslam’s chief legal advisor.

Disagreeing to Agree

In fact, the list of people who don’t put much stock in previous court decisions upholding the Tennessee Plan is rather extensive, and includes many key Amendment 2 supporters. Among them are Lt. Gov. Ron Ramsey, House Speaker Beth Harwell and House Majority Leader Gerald McCormick.

Senate Judiciary Chairman Brian Kelsey who sponsored the legislative effort to put the Amendment 2 referendum before voters, is another who believes the Tennessee Plan is “blatantly unconstitutional.”

“The average person who reads the Tennessee Constitution knows that we have a constitutional problem,” Kelsey said during an Oct. 23 debate over Amendment 2 at the University of Tennessee College of Law. “We have to fix it.”

Kelsey’s opponent in that debate was none other than John Jay Hooker.

Hooker said he respects Kelsey’s honesty on the matter, at least insofar as the Germantown Republican is willing to acknowledge what critics of the Tennessee Plan going back decades have maintained.

Hooker’s respect doesn’t extend, however, to the likes of Slatery and Haslam and former Gov. Phil Bredesen, who have over the years shrugged off or belittled concerns over the Tennessee Plan’s constitutionality, and even taken official steps to ensure the deck always remains legally and politically stacked against returning judicial-selection power to the the people.

Court Intrigues

For example, Hooker called Slatery’s recent appointment of Andrée Sophia Blumstein to the post of Tennessee solicitor general a “political payoff” related to her support for the Tennessee Plan.

The editorial board chair of the Tennessee Bar Journal, Blumstein was handpicked by Gov. Haslam in 2012 to serve on a “Special Supreme Court” assigned to decide a lawsuit Hooker filed challenging aspects of the Tennessee Plan. The case was John Jay Hooker et al. vs Governor Bill Haslam et al.

Last March the Special Supreme Court delivered its opinion, which Blumstein authored. One of the key questions the ruling addressed was “whether the phrase ‘shall be elected by the qualified voters’ refers exclusively to a contested popular election, or whether it also includes other kinds of elections in which the members of the public vote, such as a referendum or a retention election.”

The Special Supreme Court’s unanimous verdict was that, ultimately, it is up to the Legislature to decide what an election is. Blumstein wrote:

According to the plain, ordinary, inherent meaning of “elect,” the Constitution requires that the public be given an opportunity to choose, or to decide by voting, who may serve as an appellate judge. A contested popular election offers voters such a choice, but a contested popular election is not the only election process that gives the voters such a choice. A ballot that asks the voters whether one particular person should be retained as a judge or replaced is an election in which the voters are asked to “choose” whether a particular person is the one they want to be a judge. The retention election ballot gives the voters a choice of accepting one alternative and rejecting another. Thus, the Tennessee Plan’s retention election ballot fully meets the definition of “elect” because it is a process of choosing someone for public office by voting and it fully meets the definition of “choose” because it allows the public to decide by voting whether a particular person is the person the voters want as judge.

In Hooker’s estimation, the fix was in from the moment Gov. Haslam selected members of the Special Supreme Court to hear a case in which he, Haslam, was a named as defendant. Indeed, three of the original members of the Special Supreme Court — which was assembled in the first place because all five members of the regular Supreme Court recused themselves — stepped down after it was revealed that they had previous ties to a pro-Tennessee Plan advocacy group.

Hooker questioned Blumstein’s impartiality as well, but she went on to serve as chief justice for the Special Supreme Court anyway.

The outcome of Hooker vs. Haslam didn’t come as a surprise to him.

“(Blumstein) decided the case in exactly the same way that Slatery and Haslam wanted her to decide it,” Hooker said. “And in my judgment, she’s now getting her payoff, by being appointed solicitor general.”

The attorney general’s office didn’t immediately responded to a request for comment on Hooker’s allegations in that regard Friday.

Also last week, Hooker filed a complaint with the Tennessee Board of Judicial Conduct asking that Chief Justice Lee step down from the court  for circulating a letter through the Tennessee Bar Association’s email list advising lawyers that “Amendment 2 is the right choice for Tennessee and will protect the long‐term integrity of Tennessee’s justice system.”

Said Hooker, “Asking them to vote for an amendment that the chief justice well knows would give her an economic benefit is an absolute violation of the Code of Judicial Conduct.”

“It is an absolute disgrace and she should be reprimanded by the Tennessee Board of Judicial Conduct. And the people should understand that she has compromised the integrity of the court,” he added.

That goes for Justice Bivins, too, said Hooker. “Any of them who are a part of that fraud ought to be held up for ridicule.”

“It is astonishing to me that in this great country born of the idea that the people are the sovereign  — born of the idea of self-government — that they want to take away self-government from the people and they are willing to lie to do so,” Hooker said.

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Amendment 2 a Tough Sell at DA’s Conference

At their fall meeting in Memphis last week, the Tennessee District Attorneys General Conference voted to endorse Amendment 2, a proposed change to the state Constitution to grant the governor authority to pick Supreme Court and appellate judges. But the vote was by no means unanimous, and it took two tries to get it over the two-thirds hump that the conference requires for making such endorsements.

“Quite frankly, there was strong opposition from a few,” Wally Kirby, executive director for the DA’s organization, told TNReport. “Some of them feel like all of the judges should be properly, popularly elected — like they are.”

Kirby said that Bill Gibbons, a former Shelby County prosecutor who for the past four years has served as head of the state’s Department of Public Safety and Homeland Security, was on hand and lobbying heavily for the endorsement. Gibbons’ boss, Gov. Bill Haslam, is chairman of the “Yes on 2” campaign.

After an initial vote on Amendment 2 fell short, Kirby said there was a call for a redo. District attorneys from around the state who were absent from the meeting were contacted for their input. He said there was consensus among those present that “this was something that they ought to have input on from all the elected DAs — so phone calls were made to the ones who couldn’t be there because of court appearances or whatever.”

There are 31 elected district attorneys general in Tennessee — and ultimately at least 21 voted to endorse Amendment 2.

Kirby wouldn’t provide names of those who voted against the measure, but he related that some felt Amendment 2 is confusing, and that the campaign in favor of it has been misleading. The “Yes on 2” commercial suggesting that the amendment protects the people’s right to vote for judges is “very deceiving,” he said.

“That is an out-and-out falsehood,” said Kirby. “It does not give you the opportunity to vote for a judge. It gives you the opportunity to vote in a retention election eight years from now.”

Amendment 2 seeks to eliminate the Tennessee Constitution’s declaration that “The judges of the Supreme Court shall be elected by the qualified voters of the state.”

That sentence would be replaced by a series of provisions outlining a system of appointment-and-retention wherein the governor picks all the members of the appellate judiciary and the Supreme Court. The judges would then run unopposed in retention elections as many as eight years later. That new system would look a lot like what is in fact in place now — a system many Republican lawmakers, including a number of Amendment 2 supporters, regard as unconstitutional.

“The way Tennessee has been picking appellate judges is blatantly unconstitutional,” wrote Senate Judiciary Chairman Brian Kelsey, R-Germantown, in an op-ed for the Tennessean last week. Kelsey, who spent the last three years shepherding Amendment 2’s constitutional amendment language through the General Assembly to get it before voters in November, wrote that Amendment 2 will “fix the problem” and give the state a system similar to that used in Washington, D.C. He called the federal method a “tried and true system for choosing judges.”

One change that Amendment 2 adds to the so-called “Tennessee Plan” currently in effect is that the Legislature would have the power to turn down a judicial appointment by the governor. However, if the Legislature “fails to reject” a nominated judge within an allotted time, the appointment would automatically take effect.

In the federal system, a judge must actually win confirmation, not merely avoid an outright rejection vote.

If Amendment 2 fails, leading lawmakers in both GOP supermajority-controlled chambers of the General Assembly have said popular, contested elections for judges will likely be adopted going forward — thus, the voters of Tennessee would henceforth directly decide who serves at all levels of the judiciary.

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Alexander Running for 3rd Term Because ‘Country is in Trouble’

Lamar Alexander, a two-term Republican incumbent, said Thursday that he’s running for a third stint in the U.S. Senate because he’s excited by the prospect of the GOP regaining full control of Congress.

If Republicans win a majority in the Senate, which political analysts generally agree is looking likely, then Alexander’s in line to become chairman of a powerful legislative committee.

The temptation appears to have outweighed any sense of commitment Alexander feels toward honoring one of the dictates of his famous — at least in Tennessee political circles  — Little Plaid Book, a tract he published in 1998 that contains “rules, reminders and lessons about running for office and making a difference.”

“Rule 297” of the Little Plaid Book states, “Serve two terms and get out.”

Like Sen. Alexander’s opponent in the GOP primary, state Rep. Joe Carr, Democrat Gordon Ball has seized upon the evident transgression of one of his own personal canons of political conduct as evidence that Alexander’s words, deeds and principles don’t necessarily align.

Little plaid bookBut at a candidates’ forum outside Cookeville Thursday, which was sponsored by the state Farm Bureau, it was Alexander who raised the Little Plaid Book term-limits issue right out of the gate in his opening remarks. Alexander said that with respect to retiring after his 12th year in the Senate, he had “thought about doing that,” but the allure of a new term in the majority won out.

“I thought about Senator (Howard) Baker, and how he ran for a third term as majority leader,” Alexander said. “I watched him walk across the aisle with the Reagan tax cut, and I saw what he did for the country.”

Alexander said the havoc wreaked upon America the past six years under Democrats like President Obama and Senate Majority Leader Harry Reid of Nevada is such that he feels compelled to try and stick around another six years to try and undo it.

“Our country is in trouble, and I am running for a third term because I believe I have a chance to be part of a new Republican majority in the Senate, and I will be in a position to help reverse the Obama agenda on health care, on education, on labor and on energy,” said Alexander. He added that Ball would simply be “one more vote for Obama.”

Ball shot back later at Alexander not just for failing to abide by his own code, but also for refusing to support term limits.

“Go to his little red book and read what he says — ‘serve two terms and get out’,” Ball said. “Those were his words, not mine. I believe in term limits. If Sen. Alexander had believed in term limits he would have introduced a bill and we might have term limits by now.”

Ball also argued that what’s ailing America right now is the current crew of Beltway insiders on both sides of the partisan aisle — and Alexander, he said, is one of them.

“If you want to change things in Washington, you’ve got to change the people in Washington,” he said. “We’ve got to change Nancy Pelosi, and Harry Reid, and Mitch McConnell, and Lamar Alexander — career politicians who have made millions of dollars while they’re in office through deals with their buddies, and who will makes millions of dollars when they leave office, by lobbying.”

Alex Harris contributed to this story.

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Amendment 2 Passage Would End People’s Constitutional Claim on Picking Justices

Should politicians pick Tennessee’s Supreme Court, or should the people?

With the Amendment 2 ballot question, voters are being asked to erase a current provision in the Tennessee Constitution that declares, “The judges of the Supreme Court shall be elected by the qualified voters of the state.”

In place of that sentence would be added language that lays out a system of judicial appointment-and-retention similar to the “merit selection” plan the state has adopted and used now for decades — but with the added feature of getting the Legislature directly involved, rather than leaving the selection process to the governor and a judicial nominating commission.

The current system is sometimes referred to as the “Tennessee Plan” — or the “Modified Missouri Plan,” after the state from which it was cribbed in the early 1970s.

Many have argued over the years that the Tennessee Plan violates the spirit and wording of the Tennessee Constitution — including some of Amendment 2’s influential list of backers, which reads like a who’s who of Tennessee politics, past and present.

Judges Not Among ‘Tennessee Plan’ Skeptics 

The Tennessee Plan has been declared constitutional in a trio of Supreme Court opinions. Supporters of the Tennessee Plan tout those decisions as case-closed evidence that “merit selection,” followed by “retention elections,” is a legal and constitutionally permissible way for the state to go about the business of judicial selection.

“We have three state Supreme Courts, separately over the years, that have said the way we select our judges is perfectly fine,” former Tennessee Justice William Koch said recently in a Tennessean editorial board meeting with Amendment 2 advocates. “There are individuals who have disagreed with those decisions, which they have every right to do. We now realize, because that debate’s been going on for almost 20 years now, that the legal solution, even though it is final as far as the court is concerned, is not final with regard to the public. And so, we’re now turning to a political solution to resolve that issue.”

Those who disagree with the high-court’s Tennessee Plan rulings over the years include Amendment 2’s chief legislative sponsor, Senate Judiciary Chairman Brian Kelsey, R-Germantown, both speakers of the Tennessee Legislature, Rep. Beth Harwell and Lt. Gov. Ron Ramsey, and House Majority Leader Gerald McCormick, as well as many other state lawmakers.

Retrofitting History

Critics of the Tennessee Plan have argued that a historical deception of sorts has been employed in the rulings. Namely, that when the Tennessee electorate ratified the “shall be elected by the qualified voters” language in 1870, by a vote of 98,128 in favor to 33,872 opposed, there was no such thing as a “retention election.” Therefore, retention elections weren’t something contemplated either by the framers of the Constitution or the voters who approved it. Retention elections for judges didn’t arise in the United States until first adopted by Missouri in 1940.

The debate over the Tennessee Plan’s constitutionality has been raging since it was statutorily enacted here in the early 1970s by a Democratically controlled Legislature. Winfield Dunn, the Republican governor at the time, has said he regrets ever signing the bill that replaced direct elections with retention elections.

The lone dissenting justice on the Tennessee Supreme Court’s initial opinion upholding the Tennessee Plan back in 1974 wrote that the “shall be elected by the qualified voters” clause is plain and straightforward and ought to be self-evident to anyone who reads it.

The Tennessee Plan’s elimination of popular elections for judges “is so obviously contrary to the arrangement in our Constitution, as presently written…that it is difficult to explain why it is unconstitutional,” wrote Justice Allison B. Humphreys in State v. Dunn. “How do you explain the obvious? All you can do is to point out the plain clear words of the Constitution and say, ‘read it, and follow it’.”

If Amendment 2 Fails, Expect Direct Judicial Elections 

Sen. Mike Bell, who chairs the Senate Government Operations Committee, is among the Tennessee Plan’s most vocal detractors in the General Assembly. He believes retention elections are a sham, at least under the Tennessee Constitution’s current wording. Bell said this week that if Amendment 2 fails, he will press to re-establish competitive appellate and Supreme Court judicial elections in Tennessee.

“I’ve already begun working on a piece of legislation to define the popular election of judges, because I just can’t get past the fact that the language of our constitution is so simple in Article 6 Section 3, and we’ve created a process that seems to be so convoluted,” Bell, a Republican from Riceville, told TNReport Monday. “Now, if Amendment 2 passes, then the people have spoken, and it’s settled. But if the amendment doesn’t pass, we’re right back to where we are now, and I think it would be a strong message to the Legislature that the people want to go to direct elections.”

House Majority Leader McCormick, R-Chattanooga, told TNReport this week he’s hoping Amendment 2 passes in order to put the controversy over the Tennessee Plan to rest. But if it doesn’t, he said, “I think we immediately need to make plans to just go ahead and do it like the Constitution says to do it, which is to have real elections.”

McCormick, too, believes a rejection of Amendment 2 “will be a clear message from the people of the state” that they want popular elections for high-level judges.

“I think we could gather support just to go ahead and come up with some kind of a plan where we have direct elections,” McCormick said. “I think it’s what we should do, and I think it’s what we would do.”

Amendment 2 supporters like Gov. Bill Haslam and former Gov. Phil Bredesen fear that outcome.

They say letting the people of Tennessee decide who serves on appellate courts and the Supreme Court would give out-of-state special interests too much control over judicial selection.

In-state special interests in Tennessee tend to agree. The “Yes on 2” campaign — which has raised more than half a million dollars to convince voters to leave appellate and Supreme Court judicial selection to the politicians — boasts deep-pocketed support from a broad swath of politically connected industry groups and lobbying associations, like the Tennessee legal establishment, the state’s Chamber of Commerce, police unions, the Tennessee Bankers’ Association, the Farm Bureau and the Hospital Association.

“There are a lot of people, from narrow political perspectives on both sides of the aisle, who would like to see elected judges at these levels, because that’s an opportunity to, say, get your labor judge, to get your business judge, get a judge that you think will vote this way or another on something,” Bredesen said at a pro-Amendment 2 discussion panel in Knoxville with Haslam last month. “I just think that if the system were to continue ahead as it is right now, then the possibility of the Legislature then changing that to direct election is very high.”

“And that’s what I try to explain to people — this is not between the current system and (Amendment 2’s) system,” Bredesen said. “Truly, in my mind, it’s between elected judges and ‘yes’ on this amendment.”

Haslam responded, “I couldn’t agree more.”

“Like Gov. Bredesen put it, it’s not between what we have now and what we’ll get with Amendment 2,” said the governor. “I think that the momentum would swing toward folks who want popularly elected appellate judges.”

Alex Harris contributed to this story.