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VOL. 40 | NO. 37 | Friday, September 9, 2016

As long as you’re here, go ahead and kick Durham out

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State lawmakers hit the snooze button in July when prospects were high for a special session to oust Rep. Jeremy Durham over a career of carousing.

They’re now getting a wakeup call from Gov. Bill Haslam after federal transportation officials gave the Legislature an Oct. 1 deadline to fix a new underage DUI law or lose $60 million for breaking the feds’ “zero-tolerance” statute. The “disappointed” Haslam is calling for a special session to hold on to the money.

Considering Tennesseans will have to pay about $25,000 a day to bring the gang back to Nashville, they might as well kill two birds with one stone.

After all, it should take about 15 minutes to adjust the blood-alcohol limit in the 2016 law to match federal guidelines and maybe an hour to send Durham to the legislative trash heap.

Durham

They could even consider some sort of resolution censuring Rep. Joe Armstrong, who was recently convicted of tax evasion after he benefited heavily from an increase in cigarette stamp prices a decade ago.

Armstrong’s felony conviction prevents him from holding state office any longer, but he should be able to keep his pension after more than 20 years in office.

Durham, on the other hand, won’t get a state pension, about $4,100 a year starting at age 55, if he’s ousted before the end of his fourth year in office. Others in the political world say he doesn’t deserve that or the legislative pay he’ll receive into November.

First things first

After being notified in mid-August the state could lose 8 percent of its federal highway funding because of the new underage DUI law, Tennessee leaders practically begged for an extension until January when the General Assembly will convene.

Department of Transportation Commissioner John Schroer and Attorney General Herb Slatery both sent letters to the U.S. Department of Transportation arguing separate Tennessee laws provide for “zero tolerance” of underage drinking.

Slatery acknowledges when the new law is read in “isolation” it conflicts with federal statute requiring a .02 percent maximum blood-alcohol content for anyone under 21 caught drinking and driving.

Yet even though the new law makes sanctions harsher on underage people, it also places the maximum blood-alcohol content at .08 percent for drivers 18 to 20 years old, a clear contradiction of federal statute.

Never fear, Slatery contends, because other state laws prohibit any person under 21 from possessing alcoholic beverages in a public place and from buying, possessing, transporting or consuming alcoholic beverages, both of which require the court to send the state Department of Safety an order denying driving privileges for offenders.

On the surface, those would appear to be enough. But the feds will nitpick you to death if you’re not careful.

In 1995, a decade after the National Minimum Drinking Age took effect, Congresswoman Nita Lowey (D-NY) offered an amendment “to close a loophole in the law that tragically claims thousands of lives each year on our nation’s roadways: drinking and driving by minors,” according to a letter to state officials from the U.S. Department of Transportation Chief Counsel Paul Hemmersbaugh notifying them they were out of compliance with federal law.

Twenty-one years ago, 23 states prohibited those under 21 from buying alcohol, consuming alcohol publicly but not from drinking and driving, Lowey told fellow Congress members, according to the letter.

“My amendment sends a very clear message. If you are under 21, consumption of alcohol combined with driving will be treated under state law as driving while intoxicated,” Lowey said at the time.

Tennessee finally adopted its underage drinking-and-driving law in 1999 to get in line with the federal program.

Legislative history makes it clear the underage DUI law was meant to build on the minimum drinking age program, instead of restating its requirements, Hemmersbaugh writes.

“Independent of the general Minimum Drinking Age provision of Federal law, Section 161 requires a State to enact and enforce a law setting a per se BAC [blood-alcohol concentration] legal limit at no greater than 0.02 percent for all individuals under the age of 21 while operating a motor vehicle,” Hemmersbaugh states.

Neither of the laws Tennessee officials cite involves driving as an element of the offense, he contends.

“The offense must be driving while intoxicated or driving while under the influence of alcohol,” he writes.

As far as giving an extension until January, Hemmersbaugh says even though the bill’s sponsors didn’t intend for the measure to conflict with federal statute, “Unfortunately, the federal statute does not allow that flexibility.”

Consequently, Tennessee law has to comply with federal rules by Oct. 1, a yearly requirement, to avoid the highway funds withholding penalty, he says.

Dealing with it

Wailing and gnashing of teeth followed, as Tennessee’s Republican leaders complained about the federal decision, some saying it is clearly political, giving Obama’s Democratic administration a chance to zap a red state.

“We are disappointed in the U.S. Department of Transportation’s decision. The state made clear to federal officials that while it disagrees with the interpretation that Tennessee is out of compliance, any such perceived impact of the law was inadvertent and could be fixed in January 2017,” Gov. Haslam says in a statement.

“To avoid any negative impact to the state, I will ask the General Assembly to convene in a special session and clarify state law in this matter.”

The special session is expected to be held Sept. 12-14.

Lamberth

The bill’s sponsor, Rep. William Lamberth, a Sumner County Republican, reportedly called it a political move against Tennessee. Sen. Jim Tracy, a Bedford County Republican who chairs the Senate Transportation Committee, also expressed disappointment but said the state should do whatever it takes to hold on to the money.

“It is very unusual and it very well could be political. I’m not sure,” Tracy says. “But it’s very unusual, the people I’ve talked to, that the federal government wouldn’t work with you and make you do something like this this quick.”

Murfreesboro Democrat Gayle Jordan, who is challenging Tracy in the Nov. 8 election, used the foul-up to deliver some stinging criticism, saying every legislator is responsible for reading the bills they consider.

“Unfortunately, it appears that on this issue, Sen. Tracy didn’t understand what he was voting on,” she says.

“It should be a no-brainer for the lawmakers to come back for a brief session, vote to fix their mistake, and be done by lunch.”

Consider this, though: The measure passed the state Senate 30-0 and had only two negative votes in the House. So as it turns out, nobody knew what they were voting for, because nobody wants to look soft on underage drinking and driving, especially in an election year.

Of course, it’s not the first time the 109th General Assembly dropped a pile of money from the feds.

U.S. Rep. Jim Cooper, a Nashville Democrat who was out front on the issue and joined a congressional delegation effort to get an extension, took an opportunity to make a point.

“This never should have happened in the first place. I’m glad state lawmakers are fixing their $60 million mistake. The Legislature also should reconsider the $1 billion in federal money left on the table and pass Insure Tennessee,” Cooper says in a short statement.

In view of the Republican Legislature’s hatred for the Affordable Care Act and two-year failure to catch about 290,000 people in an insurance gap, Cooper shouldn’t hold his breath.

They’re on the verge of expanding TennCare in a pilot program rather than adopt a measure proposed by their own Republican governor.

But that’s another matter.

Democratic criticism

Never one to miss a chance at blasting Republican leadership, Democratic state Rep. Mike Stewart of Nashville blames the mess on House Speaker Beth Harwell, who faces a challenger in the November election.

Harwell

Stewart and the Democratic Caucus say Harwell is largely responsible for ending each year’s session in April, instead of giving lawmakers and Joint Fiscal Review Committee staff enough time to review the financial impact of every bill.

A presentation by former Fiscal Review Director Jeff Spalding in 2015 showed his staff was overburdened and rushed to get the job done.

An independent review by the National Conference of State Legislatures backed up Spalding’s argument.

“Speaker Harwell was warned that we were moving too fast and that Fiscal Review was not able to keep up. Now, the taxpayers will have to pay thousands of dollars to bring lawmakers back to fix an unprecedented failure that should have been prevented,” Stewart says.

Of course, Harwell denies she’s the problem.

Spokeswoman Kara Owen says Fiscal Review staff was added, pay was improved and software program upgrades were made as a result of the NCSL study and the internal review, which was done at Harwell’s request.

Ketron

State Sen. Bill Ketron, vice chair of the Fiscal Review Committee, says he couldn’t blame Fiscal Review for not consulting with the Department of Transportation about the impact of the underage DUI bill. In “hindsight,” however, he says staff probably should have checked.

Ketron also contends since Krista Lee and Robert Curry took over Fiscal Review and added several analysts, “we haven’t seen any problems.”

The final analysis

With those factors in mind, this could be the ultimate case of falling through the cracks, a bill proposed in 2015 and not fully vetted finally passes in 2016 after a turnover in Fiscal Review. Or, it really could be a case of trying to get the heck out of Dodge every year.

The session lasts less than four months, a point Republican leadership consistently makes to show the state is saving money and keeping government out of people’s lives.

Truth be told, though, legislators travel to Nashville throughout the summer for study sessions, hearings, meetings, photo ops, etc. Calling them in for two or three days should be no big deal, and it really shouldn’t take that long.

The supermajority Republicans were reticent to give Durham the boot in July, some saying they were trying to save taxpayers money, even though leadership wanted to put his head on a spike outside the Capitol.

They could use this special session to look like heroes, showing Tennesseans we will hold anyone accountable, no matter what party, if they abuse the office by chasing nearly every skirt in the Legislative Plaza.

Since the new DUI law requires only a small adjustment, it should require no great study.

They could take care of that snafu and Durham before lunch and get home before dinner so they can wake up in their own beds the next day, with no need for hotel stays.

Even if they did stick around, the $25,000 per-diem expense would be offset in a matter of six years by cutting Durham’s pension.

It’s time to wake up and quit blaming the feds for Tennessee’s legislative shortcomings.

Take care of business and get back home.

Sam Stockard can be reached at sstockard44@gmail.com.

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