Give ’em an inch . . .

By Representative Steve Berch

A lot has happened since my last newsletter – and there’s a lot more yet to come. As a result, this newsletter is somewhat jam-packed. The House is getting close to finishing up voting on bills it creates, but we still have a slew of bills from the Senate to vote on. And both the House and Senate are still creating new bill (albeit not too many). I’ll try to send these legislative updates more frequently as we approach the last few weeks of the 2024 session.

One common denominator among several bills this year is that while they may seem benign or limited in scope on the surface, they set the stage for more severe legislation next year. That is the subject of this newsletter’s title and opening narrative.

The camel’s nose under the tent

As the saying goes, let the camel’s nose under the tent and the rest of the camel will soon follow. That appears to be the purpose of several bills this session. For example:

H421 (passed the House, in the Senate) defines word “sex” to by synonymous with the word “gender” (seven words buried in the bill). This was presented as simply clarifying definitions in statute and having nothing to do with policy. Right – until a slew of policy bills next year use this bill to control the information displayed on a driver’s license or birth certificate, or any other statute containing the word “gender.” I voted AGAINST this bill.

The “Accelerate Charter School Act” (H422 – signed into law) – was presented as simply streamlining 25 years of multiple charter school bills. I support charter schools, and if all this bill did was simplify current statutes, I would have co-sponsored it. But buried in this 36-page bill were several new changes that truly “accelerate” the proliferation of charter schools while local public schools remain underfunded (there is still a backlog of over $1 billion in K-12 school building maintenance):

Enables out-of-state, for-profit interests to assemble an unlimited amount of charter schools under one governing board that they can control.
Allows these private parties to give charter schools an unlimited amount of money.
Removes parental and teacher approval before ownership of a public school charter can be transferred to another controlling entity. Currently, 60% of the teachers and 60% of the parents must approve a transfer of ownership.

These changes set the stage for creating a regional statewide system of charter schools (including virtual charter schools) controlled by for-profit education service providers. Not overnight, but over time.

That intent was revealed in the original draft of the bill which would have also removed governance of the current Idaho Charter School Commission from under the State Board of Education. That change was removed in the final version of the bill, but all it will take now is a simple bill next year to make that change. I voted AGAINST this bill.

H644 (passed the House, in the Senate) requires the members of the State Board of Education to be appointed by region instead of currently being appointed at-large. This sounds reasonable until one remembers H293 from last year which would have required all members of the State Board of Education to be elected regionally via partisan elections. That bill failed by one vote. If this bill becomes law, it will do 90% of the work of last year’s bill. All it would take is a simple bill next year that changes “appointment” to “partisan elections” – which then opens the door to the real purpose of last year’s bill: ushering in ideological governance of public education. I voted AGAINST this bill.

And then there was the school voucher bill disguised as a “parental choice tax credit” (H447 – died in House committee). This bill would have allowed public tax dollars (in the form of a credit) to be spent on for-profit private and religious K-12 school tuition. The bill limited the amount of allocated taxpayer dollars to $50 million. However, the credits would have been issued on a first-come, first-served basis. That absurd process hid an insidious purpose: it would have created a demand-exceeds-supply scenario that could then be used to justify dramatically increasing the amount of tax dollars spent on this scheme later. Arizona did something similar a few years ago, starting with a modest amount of allocated money. Now Arizona is looking at having to spend nearly $1 BILLION next year on their “parental choice” program – at the expense of being able to adequately fund public education. Although this bill is now dead, the determination to continue this pursuit is not. I expect another effort to be made either later this session or next year.

This is why I often vote against bills that may sound good today but can do serious damage tomorrow.

One can only hope that a recent anti-cannibalism bill today (H522) won’t be used to make eating finger steaks a crime tomorrow. (And yes, I voted AGAINST this bill.)

Rotunda Roundup

Education

School facilities funding (H521 – passed the House, in the Senate). This bill supposedly provides $2 billion for school facilities over the next 10 years (about $200 million/year) by borrowing $2 billion and paying interest on the debt with taxpayer dollars. I say “supposedly” because the bill places several conditions as to how the money can be spent. The most restrictive condition is requiring it to first pay off old school bonds before it can be used to fund new school facilities. This doesn’t help school districts needing new revenue now to fix or replace school buildings.

This will force most school districts to continue asking voters to approve new school bonds. The reduction in property taxes by paying off old bonds will be lost when having to approve new bonds. In addition, the $200 million needed each year to pay off the $2 billion debt gets taken from the source that funds schools each year – thus leaving less money available to allocate for schools. And none of this takes a downturn in the economy into consideration.

Other items that have nothing to do with school facilities are also attached to this bill. These items include another reduction in the income tax rate which will reduce state revenue by $60 million a year. This leaves even less money available to adequately fund education. The bill also eliminates the August election date, thus making it even more difficult for school districts to float bonds when the legislature fails to adequately fund their schools. I voted AGAINST this bill, which does less than it claims to do and potentially more damage than is readily apparent. Here’s a list of some of the items buried in this so-called “facilities” bill:

I offered a different approach to funding school facilities in my February 4th newsletter (Fiscal Malpractice). The legislature should review the $5.2 BILLION in revenue it doesn’t collect annually in the form of sales tax exclusions that are never reviewed and never expire. If a review process concluded that only 10% of those exclusions could no longer be justified, that would generate over $500 million in incremental revenue each year. We’d have the $2 billion in four years – without having to borrow money and waste taxpayer dollars on interest payments.

Teach age-appropriate Holocaust information in schools (HCR25 – passed the House, in the Senate). This resolution asserts that the teaching of the Holocaust should be reinforced in public and charter school curriculum. I voted FOR this resolution which reaffirms that those who don’t learn from history are bound to repeat it.

Teach civics education in public schools (SCR116 – passed the Senate, in the House). This resolution encourages the teaching of American history, patriotism, the founding of our republic and the greatness of our country. I was looking forward to voting for this resolution until I asked the sponsor in committee why the word “democracy” wasn’t mentioned anywhere in it. That’s when things took a turn. The answer I got was “America is a Republic.” I asked, “Are you saying American is not a democracy?” Same answer: “America is a Republic.” The sponsor’s refusal to acknowledge that democracy is a founding principle of our country calls into question the resolution’s true intent – and is the reason I voted AGAINST it.

Block internet access to certain content in schools and teach digital literacy (H663 – passed the House, in the Senate). I voted FOR this important bill that protects students from unacceptable content while in the classroom and provides digital literacy instruction in grades 6 through 12 that will help prepare students to function in an increasingly digitized world.

Allow telehealth behavioral health services to be provided in schools (H684 – passed the House, in the Senate). If a child attending school needs private counseling, they need to leave school, be driven to meet with their therapist, and then be driven back to school – resulting in lost class time and inconvenience for the parent. This bill allows the student to meet with their therapist via a telehealth meeting in a private room within the school building, thus minimizing their time away from the classroom. I voted FOR this bill which benefits everyone involved.

Provide outcome-based funding for education (H595 – passed the House, in the Senate). This bill creates a new, incremental funding source for public schools based on two measures of performance: growth in performance over time and proficiency in performance to expectations. Both metrics offer an incentive to all schools, with acknowledgement that there are multiple ways to recognize success. The bill calls for an initial budget of $40 million, with opportunities to increase it in subsequent years. I voted FOR this bill. While it will be important to monitor the outcomes, I recognize it as an attempt to look at new ways to improve results.

Health & Welfare

Prevent district health boards from doing all that’s necessary to protect the public (H525 – passed the House, in the Senate). This post-COVID bill is born out of the dislike for masks and fear of vaccines from four years ago. It’s stated purpose is to narrow the ability of district health boards to administer and enforce only “necessary and reasonable” health laws and regulations, eliminating the broader mandate to do “all things” for the preservation and protection of public. I voted AGAINST this politically motivated, science-denying bill, which fails to consider the magnitude and mortality rate of future threats to public health that may be far worse than COVID.

Designate all family members as Essential Caregivers (H489 – passed the House, in the Senate). This is yet another post-COVID bill when family members were limited in their ability to visit relatives in assisted living and nursing home facilities. The problem with this bill is that it may diminish the ability of the patient to control who gets to visit them – and not visit them – by automatically designating all family members as an “essential caregiver.” I support allowing family members to visit their loved ones, but I voted AGAINST this bill because of the unintended consequences it may have on the patient or resident. There may be circumstances where they may not want to designate that status to some family members, especially if they can’t communicate their wishes.

Repeal existing law that allows needle exchange programs for addicts (H617 – passed the House, in the Senate). This bill erroneously assumes that needle exchange programs for drug addicts will promote continued drug abuse. Addiction is a disease. If an addict doesn’t have a sanitary needle, they will use a contaminated one and then have intimate interactions with other people. This is how diseases like HIV and hepatitis infect a community. Enabling addicts to obtain sanitary needles helps slow down the spread of deadly diseases. I voted AGAINST this bill, which creates a clear and present threat to public safety.

Establish provisions governing Pharmacy Benefit Managers – PBMs (H596 – passed the House, in the Senate). Some background: PBMs are third party administrators under contract by health/prescription plans, employers and government entities to manage prescription drug programs for health plan recipients. PBMs administer the prescription drug benefit for nearly every public and private health plan in the United States. They decide which pharmacies are included in a prescription drug plan’s network and how much the pharmacy will be paid for dispensing services. The purpose of this bill is to establish parameters and standards for how PBMs operate in Idaho.

The bill limits a PBM’s financial control over local pharmacies which appears to be driving smaller ones out of business (a significant risk to those living in smaller towns). However, the bill also runs the risk of higher prices for consumers. The complexity of the situation is significant, the outcome of this bill is uncertain and reaching a decision was difficult. I voted FOR this bill due to the outsized role PBMs appear to play as a middleman relative to the value they actually provide.

Extend postpartum Medicaid coverage for 12 months to eligible individuals (H633 – passed the House, in the Senate). This bill extends much needed medical services that help ensure the health and safety of new mothers and their children. I voted FOR this important bill that also saves the state money by extending a 90/10 federal funding match for a full year instead of a 70/30 match.

Business/Local Government

Prevent cities from protecting consumers against unscrupulous landlords (H545 – passed the House, in the Senate). Boise created an ordinance prohibiting landlords from discriminating against applicants based on their source of income, particularly those who receive Section 8 vouchers (which helps the homeless find housing). Within weeks, this bill appeared to prevent Boise – and all Idaho cities – from enacting such an ordinance, thus exacerbating homelessness. But the bill went further. It included a prohibition on cities regulating apartment application fees and deposits. This sneaky move resurrects a failed bill from the 2022 session (H442). I voted AGAINST this year’s bill, which removes consumer protections against bad actors. Instead, it protects bad actors from consumers.

Notify mobile home residents of the possible sale of their community (H590 – passed the House, in the Senate). Current law requires the owner of a mobile home community to notify the tenants of the possible public sale of the property so they have the opportunity to purchase it (and thus prevent being evicted). This bill closes a loop hole in statute that did not require them to be notified in the event of a private sale of the property. I voted FOR this bill, which will help many of my constituents who live in mobile home communities.

Limit the ability for cities to regulate Short Term Rental (STR) properties (H506 – in the House). This bill addresses an emerging conflict taking place in several Idaho cities, especially resort communities. An increasing number of single family homes in residential areas are being converted in to STRs either by the homeowner for extra income or out-of-state interests purchasing (or building) these homes and turning them into year-round businesses. With this comes a constant churn of transient occupants who are not invested in the tranquility and aesthetics of their surroundings. As a result, some cities have enacted ordinances that require a homeowner running a STR to meet standards expected of a business, which can require very costly upgrades and investments. This pits the rights of a property owner against what’s right for the local community. This bill did not strike a reasonable balance. It eliminated nearly every ordinance a city might want to enact. The Business committee voted unanimously to place this bill on General Orders (a sort of holding tank), with the request that the parties work to amend the bill to strike a better balance between these conflicting interests.

Elections

Protect elected officials and political candidates from “deep fake” electioneering (H664 – passed the House, in the Senate). A candidate whose image, appearance or speech that has been altered in an electioneering communication to mispresent them without a disclosure that the content was manipulated can seek injunctive relief and damages. People still have the freedom of speech to create these AI-generated “deep fakes,” but they need to let the audience know that it has been altered and is not authentic. I voted FOR this bill, which is another good example of the legislature trying to get ahead of the damage emerging technologies can do to innocent parties.

Make it more difficult to collect signatures on citizen-driven ballot initiatives (H652 – passed the House, in the Senate). This bill requires petitions to be turned into election officials on a monthly basis and makes it easier to challenge signatures on a petition. This is yet another attempt to subvert and hinder the citizen-driven ballot initiative process – something the legislature has been trying to do since Medicaid Expansion was approved by the voters. I voted AGAINST this bill, which solves a problem that doesn’t exist and will make it more difficult to collect signatures, especially during the winter in rural Idaho.

Public Safety

Go to jail for illegally passing a school bus (H610 – passed the House, in the Senate). This bill would send a person to jail for six months if they illegally passed a school bus twice within a five-year period. I support the intent of this bill, but I voted AGAINST it because the severity of the penalty doesn’t fit the crime.

Provide immunity for security teams of religious organizations (H601 – passed the House, in the Senate). This bill provides immunity from civil damages for the actions of voluntary security personnel serving religious organizations, including the use of lethal force. While well-intentioned, I voted AGAINST this bill due to the absence of training, experience or proficiency requirements. There is a reasonable expectation that anyone providing public safety in a security capacity has some level of proven experience performing that function.

Other

Purple Heart license plates (H547 – passed the House, in the Senate). I co-sponsored this bill with Rep. Ted Hill (R-Eagle). This bill was brought to me by a constituent who earned a Purple Heart as a marine in Vietnam. It corrects an inequity in the law where disabled Purple Heart recipients who request a Purple Heart license plate don’t have to pay the plate fee, but those recipients who are not disabled do have to pay the plate fee. This bill removes the plate fee for all Purple Heart recipients. I am proud to have the opportunity to show appreciation and support for our veterans in all ways possible – large or small. I (obviously) voted FOR this bill.

Disclosing explicit synthetic media (H575 – passed the House, in the Senate). This bill makes it a crime to publish explicit synthetic media with the intent to terrify, threaten, intimidate, harass, offend, humiliate, or degrade another person. The purpose of this legislation is to address the recent rise in malicious actors using AI technology to create “deep fakes” of victims for the purpose of harassment or sexual extortion. I voted FOR this bill, which is an important early attempt to get ahead of the harm this rapidly developing technology can cause.

Appropriations bills (H648, H649, H650, H692, H693, H694 – passed the House, in the Senate). These are the first of the additional appropriations bills following the bare-bones “maintenance” appropriation bills I discussed in an earlier newsletter. I remain critical of the sudden and unwarranted change in the appropriations process, which is the reason I voted against all the so-called maintenance bills. However, I voted FOR all these second-round bills based on their merit. I will not let concern for a bad process stand in the way of voting for a good bill.

Expanding the role of members on JLOC. (This item does not pertain to legislation). I am a member of the Joint Legislative Oversight Committee (JLOC), which oversees the Office of Performance Evaluations (OPE). The responsibilities of JLOC members are primarily to assign projects to OPE and approve the public release of the reports OPE creates in response to those projects. What’s missing is a follow-up process to help ensure that action is taken on the report’s findings.

Steve Berch represents District 15, House Seat A. He is a member of the Education, Business, Local Government committees, and JLOC (Joint Legislative Oversight Committee).