The Fine Print

Partisan wrangling, early voting, and limits on the power of the governor

So what constitutes an emergency?

Do long lines at a polling place, or the possibility of an election meltdown because of the surge in voting crowds constitute an emergency? And does the governor have the power to change that?

That in essence is one of the questions raised by the tug-of-war that has erupted in the last two days over early voting.

Gov. Rick Scott was asked Thursday by former state senator Dan Gelber, the Florida Democratic Party and the League of Women Voters to extend this year's period of early voting through Sunday instead of having it end at 7 p.m. on Saturday night as it now scheduled.

In his own letter Gelber warned that the long ballot (due largely to the Legislature placing the entire text of amendments on it) and the long lines was causing "greater dislocation" at the polls then in 2008. That was the year that former Gov. Charlie Crist wrote an executive order that resulted in early voting hours being extended beyond the statutory limit of 96 hours.

Scott, who signed the law in 2011 that cut the number of early voting days back from a maximum of 14 days to the current 8 days, told reporters on Thursday night that he would not grant the request.

Obviously there is a great deal of partisan wrangling going on here.

In the past year there have been federal lawsuits that challenged the reduction in early voting days. And the lawyers for the Legislature were hard pressed to come up with an explanation of why the early voting days were cut to begin with. In one memorable exchange in court earlier this year a federal judge said there was nothing in the record that showed him any good reason for the decision made by lawmakers to cut back on early voting.

Attorney George Meros at that hearing in Jacksonville contended that legislators could have had private conversations with election supervisors that led to that decision. This past week The Palm Beach Post reported that one of the architects of the law that cut back early voting helped write it after consultation with Republican Party officials.

But let's go back to 2008.

Crist's action at the time to extend early voting was met with disbelief from members of his own party. (Remember, he was still a Republican.) And just as importantly legislative leaders _ including then-House Speaker Marco Rubio _ were a bit skeptical of the legal reasoning that Crist used to extend early voting.

In essence, Crist declared that a "state of emergency" existed due to long lines at early voting locations. He used his emergency powers to order supervisors to keep polling places open. Download Executive_Order_Number_08_217

In his order Crist said that there is "a possibility that election officials will be unable to conduct an orderly election and thus residents in our state could be deprived of a meaningful opportunity to vote." So Crist basically used the power that the governor uses when there is a hurricane or other natural disaster to waive a state law.

I have already written in the past how Crist expanded the use of executive power beyond what traditionally had been done by previous governors, even former Gov. Jeb Bush.

The decision by Crist to extend early voting hours was seen by some Republicans as a decision that helped Barack Obama win Florida.

But at the time Rubio and other top Republicans were reluctant to go into court to challenge the executive order. Part of the problem was timing since the decision came just days before the election and it would have been hard to get a judge to halt the extended hours.

Gelber for his part has argued that the prospect of a problem with an election does in fact constitute an emergency. Plus, he cites the fact that Bush did it as well.

That's true but Bush extended voting hours by 2 hours on Election Day because of problems during the 2002 primary with late opening precincts and ballots that wouldn't scan.

Many major counties were using new voting machines for the first time that had put in place in the wake of the chaotic 2000 presidential election where the vote in Florida wasn't settled until more than a month after Election Day.

In one notable case during that primary former U.S. Attorney General Janet Reno _ who was running in the Democratic primary for governor _ had to wait to vote at her own polling place in Miami-Dade County because of problems with the machines.

Now if Election Day turns into a major hassle _ and there are problems at the polling places _ you can expect Democrats to tell Scott "I told you so" and they will use it as ammunition against him on the 2014 campaign trail.

But given the nature of this election you would have to wonder if Scott would have been challenged even if he did issue an executive order.

This time around _ unlike four years ago _ the election result is very much in doubt and it's hard to imagine either side taking a pass on this. At least, however, we would have gotten a judge to decide the extent of the governor's emergency powers.

(Editor note: Sorry for the lack of entries on this blog in the last few weeks. Look for that change in the days and weeks ahead. I truly do appreciate all of those who have enjoyed this blog _ and given me compliments on it since launching it three years ago. My plan is use it to augment _ and go beyond the stories that I do for The Associated Press.)

Will RPOF financial scandal doom fundraising bill?

Wow. Talk about bad timing.

While the Republican Party of Florida financial scandal unravels into a web of lawsuits and criminal investigations, the clock is ticking on a major fundraising and campaign finance bill that now sits on the desk of Gov. Charlie Crist.

Crist has until next Tuesday to veto, sign or let HB 1207 become law without his signature.

The bill has two main components: One part would re-regulate 527 organizations in Florida, also known as electioneering communication organizations. Florida's previous law that required these groups to register and report their financial information was struck down last year by a federal judge. While there have been some quibbles about the wording of this part of the bill - and whether or not it still goes too far to withstand judicial scrutiny - no one has come out in opposition.

It's the other part of the legislation that has drawn fire from Democrats and others.

The legislation would create leadership funds, or "affiliated party committees." These would essentially allow the Senate President, House Speaker and minority party leaders set up accounts that would take unlimited campaign donations and then give the legislative leaders the power to control spending out of these accounts. The argument is that this will allow the public to see which donors are giving money because of requests from legislative leaders instead of co-mingling it in party accounts with other donations.

So then ask yourself. What advantage or disadvantage would Crist get out of signing this bill right now? How would it look and how would it impact his campaign for U.S. Senate?

Republican legislative leaders want it obviously. But it's not like they have been extremely friendly to Crist's legislative agenda this session.

Meanwhile pressure is starting to mount as some people start calling on Crist to veto the bill. State Sen. Dan Gelbercontended that the bill would create "cash register politics" in Florida and Gelber went so far as to assert that staff that run these new funds could solicit money during the session. (Legislative rules bar legislators from soliciting money.)

Now throw in the whole mess with Greer. Crist handpicked Greer for the job as party chairman, but now there is a situation where two incoming legislative leaders - the ones who would get to set up the accounts - now stand accused of supporting a secret severance package with Greer and even offering him "hush money." Party officials say the agreement was never executed and legislative leaders say the hush money allegation is false.

Crist's candidacy has been asserting lately that voters can't trust Rubio - because of the way he handled his own fundraising activities and his credit card expenses. (Yes, Rubio has denied that he did anything wrong, although there is a portion of his expenses that have yet to be totally explained.)

Rep. Seth McKeel, R-Lakeland and the sponsor of the bill, argues that if anything the Greer situation is exactly why more "transparency" is needed.

"I would think the governor would approve having more transparency and accountability,'' said McKeel on Thursday.

But McKeel also acknowledged that he has not talked to anyone in the governor's office nor does he have any idea what Crist plans to do.

Crist could veto the bill and lawmakers could always hand Crist his first ever veto override as governor. That is a bit far-fetched but it certainly would generate some headlines.

Legislator will try one more time to get lobbyists to tell the truth

Sen. Alex Villalobos has had a change of heart.

Just two weeks ago the Miami Republican said he was giving up and had no intention on filing his "Truth in Government" Act that would require those testifying before the Legislature to swear to tell the truth.

But he said he changed his mind after talking to Senate President Jeff Atwater, R-North Palm Beach. He said the Senate president supports having lawmakers push ahead with several bills that deal with ethics, including some of those being sponsored by Sen. Dan Gelber, D-Miami Beach. So Villalobos refiled his bill, which would make it a crime to lie to a legislative committee. It would not apply to legislators and children.

"I see an opportunity given the president's desire to move bills that address ethics and corruption,'' said Villalobos this week.

There has been a renewed interest regarding ethics in the wake of a long list of scandals in the last year - including the arrest of Scott Rothstein and Alan Mendelsohn. Atwater was among those who met with agents from the FBI last year to discuss issues surrounding Mendelsohn.

Gelber said he too has talked with Atwater and he feels confident that some of his bills have a shot of success. Gelber has filed no less than eight bills dealing with campaign contributions, ethics, and the legislative process. Just last week he filed a measure, SB 1554, that would make it crime for any public servant to fail to advertise a solicitation for procurement.

"My sense is that the Senate president recognizes the need to do something,'' said Gelber. "I'm hopeful that a great number of bills will get a hearing if not approved."

Political grandstanding or making sure that "justice" is done?

The battle to become Florida's next Attorney General may hinge on one simple question: What is the proper role for the state's top legal officer?

It is not just a semantic exercise, because it could have deep ramifications if the next Attorney General takes a more activist - and confrontational tone - against others in state government.

State Sen. Dan Gelber, a candidate for Attorney General, last week published a provocative piece where he sharply criticized Attorney General Bill McCollum - and former Agency for Health Care Administration Secretary Holly Benson- for defending the state in an ongoing lawsuit over Medicaid reimbursement rates. (Benson is one of the Republican candidates seeking to replace McCollum in 2010.)

The class action lawsuit filed by the Florida Pediatric Society and the Florida Academy of Pediatric Dentistry and on behalf of Floridians under 21 asserts that the state is violating federal requirements because its low reimbursement rates has resulted in many doctors refusing to treat Medicaid patients.

Gelber - who is running for Attorney General - contends that by taking the case to trial that McCollum and Benson are "fighting to block access to care for children."

"If he wanted to, our Attorney General could concede that is morally repugnant that Florida has the second highest rate of uninsured children in the nation,'' Gelber wrote. Gelber said that instead of fighting the case that McCollum should have settled it and forced the Legislature to spend more money on Medicaid.

This marks the second time that Gelber has threatened to fight the Legislature. Back in October he said that if he were Attorney General he would sue them over education funding.

Ryan Wiggins, a spokeswoman for McCollum, said it wasn't the job of the Attorney General to decide the policy of Medicaid reimbursement rates. Instead the Attorney General has a "obligation" to defend the state in lawsuits.

"Barring conflicts, it is the responsibility of the Office of Attorney General to represent the state, an obligation Attorney General Bill McCollum takes very seriously,'' said Wiggins. "Furthermore this is a policy issue that should be addressed by the Florida Legislature, not litigated in the courts."

The Republican candidates for Attorney General so far have stressed issues such as cybersafety and battling gangs as among the top priorities for the job. Benson on her website says she will fight government regulation on behalf of businesses.

State Sen.Dave Aronberg, a former assistant Attorney General who is challenging Gelber in the Democratic primary, said the job calls for a balancing act.

"As a former Assistant Attorney General, I watched as Bob Butterworth sometimes had to defend laws that he disagreed with,'' said Aronberg. "Other times, however, the Legislature can act so egregiously and in a way that will hurt the people of the state, that the Attorney General must refuse to go along. The key is to find the right balance without being either a rubber stamp for the Legislature or a political grandstander."

When asked whether or not he runs the risks of being viewed as a grandstander, Gelber responded that he believed the state's position on the Medicaid lawsuit was "contrary to the interests of Florida citizens" and that the state should have settled it "years ago." Gelber also said that the "failure of the Legislature" to provide a high quality system of education as required by the state constitution "violates the rights of the citizens."

"As the AG I am not the representative of an ordinary party to a controversy,'' said Gelber. "My obligation is not simply win a matter, but to make sure justice is done. I do have a much different vision of the office than the current AG - and I do intend to use the office to stand up for everyday Floridians even it inspires the ire of the Legislature."

Ethics Commission may ask for more power and steeper fines

Talk about good timing.

On the same week that Gov. Charlie Crist gets rebuffed in his bid to create a statewide grand jury to probe corruption, the state's ethics commission may do something that Crist hasn't done so far: Ask the Florida Legislature for increased investigative power, steeper fines and a different standard to prove that someone has broken the state's ethics laws.

This Friday the commission will revisit its 2010 legislative recommendations. Their discussion comes just four days after the high court dismissed Crist's grand jury request. Crist made the request in the wake of scandals in South Florida.

Some of the ideas that may give more "teeth" to ethics laws, according to Phil Claypool, the executive director of the panel are:

* Giving the commission the ability to launch investigations in limited situations - including allowing the panel to investigate a possible "breach of the public trust" if it is referred to the commission by the governor, the Chief Financial Officer, a state attorney or the head of the Florida Department of Law Enforcement. Currently the commission can only launch an investigation if it receives a written complaint.

The recommendation also calls for giving the ethics commission the authority to launch an investigation in the wake of newspaper stories and other public information that is deemed "reliable and publicly disseminated." In either situation it would take a unanimous vote in order to move forward on these cases.

* Beefing up the civil fines that can be imposed on someone who breaks the state's ethics laws. This recommendation calls for increasing the maximum civil fine that can be imposed from $10,000 to $100,000. The commission can only impose fines in limited cases. But the commission can recommend that the governor impose fines in many cases.

* Change the burden of proving a violation of ethics laws from "clear and convincing evidence" to "preponderance of the evidence."

It may not be surprising that the panel is considering such serious changes. In discussions at earlier meetings this year members have said it is more important to recommend "the right thing to do" than to worry about whether or not something will pass.

And there is a chance that none of these changes will pass. The Legislature has shot down past efforts to give the ethics commission greater power, including recommendations that came from an anti-corruption task force set up by former Gov. Jeb Bush.

State Sen. Dan Gelber, D-Miami Beach, said some of these ideas make sense, but he doesn't know if they will get through the Legislature.

"If you want to restore integrity we have had plenty of ideas already,'' said Gelber, who is pushing his own anti-corruption bill for the upcoming 2010 session. "We just need to get them adopted."

Another round in the Attorney General slugfest

Former Agency for Health Care Administration Secretary Holly Benson is obviously determined to make the GOP primary for Attorney General a real slugfest judging by the Tallahassee heavyweights who are hosting a fundraiser for Benson on Dec. 9.

Among those listed on the invitation are Brian Ballard, Paul and Sally Bradshaw, Jim Magill, Mark Kaplan, and Mike Harrell.The inclusion of Ballard is significant since Ballard is a top fundraiser of Gov. Charlie Crist. Ballard is siding with Benson despite the fact that Lt. Gov. Jeff Kottkamp jumped into this race months ago.

Having four current and former legislators in this race - as pointed out here and here- makes it easy to compare their records. Consider this Part II of an ongoing examination of the positions of the quartet - Benson, Kottkamp, Dan Gelber and Dave Aronberg - on important bills that all they voted on as well as bills that had legal and constitutional questions or show a divergence in their positions.

Terri Schiavo I: The GOP-controlled Legislature during a 2003 special session passed a highly controversial piece of legislation that let then Gov. Jeb Bush order that Schiavo's feeding tube be kept in place despite judicial rulings allowing it to be removed.The law was later struck down unanimously by the state Supreme Court including Bush's own appointees. Kottkamp-Yes. Gelber-No. Aronberg-No. Rep. Benson was one of 28 House members who missed the first vote, but voted yes when the bill came back a second time.

Terri Schiavo II: This bill was taken up during the 2005 regular session and was drawn more broadly than the first. It would have prevented the withholding or withdrawal of food or water to a person in a persistent vegetative state unless they had expressly directed the withholding of food and water. The legislation was never passed because it died in the Florida Senate. (Among those voting no was Sen. Paula Dockery, who is now running for governor on the GOP side. Dockery voted no on the first bill too.)  Kottkamp and Benson - Yes. Gelber and Aronberg-No.

Stand Your Ground: This measure was a top priority in 2005 by the National Rifle Association. It changed Florida law so that someone was no longer required to retreat before they could use deadly force to protect themselves even if they were outside their homes. It also expanded the definition of "castle" - a place where a person is not bound to retreat - to include cars.

This standard has come to play in criminal cases since then, such as the August 2009 ruling that upheld the release of a Tallahassee man who shot and killed another man in a car outside a nightclub. Jimmy Hair and Charles Harper were fighting inside a car when Hair says he got his gun and tried to use it as a club, but the gun went off and killed the other man. The court said the "physical evidence" was clear that the man was shot inside the car and the law makes no exception from immunity when the victim is in retreat "at the time defensive force is employed."

Benson, Kottkamp and Aronberg voted yes. Gelber voted no.

Alimony: This was a contentious bill from 2005 that changed the circumstances in which a court could reduce or terminate alimony payments. The "shacking up" bill was aimed at cases where a spouse moves in with someone but doesn't marry them. But some complained that the legislation went too far and would hurt women. Benson and Gelber voted no. Kottkamp and Aronberg voted yes.

60 percent amendment: This joint resolution placed on the ballot a requirement that all future constitutional amendments need to be approved by 60 percent of the voters in order to pass. Kottkamp, who was a cosponsor of the measure, voted yes, as did Benson and Aronberg. Gelber voted no.

Instant bingo: This 2004 bill authorized the use of instant bingo tickets, essentially allowing organizations that conduct bingo to sell pull-tab tickets instead of requiring people to play bingo the old-fashioned way. Gov. Bush vetoed the legislation, saying it expanded gambling and may have violated the constitutional provision that limits lottery games to the state. Benson was one of just 11 Republicans to vote against the bill. Gelber, Kottkamp and Aronberg voted yes.

Kottkamp vs. Benson vs. Aronberg vs. Gelber

If current Agency for Health Care Administration Secretary Holly Benson jumps into the race for Attorney General, then voters in Florida will have up to four current and former state legislators competing for one job. (Benson said recently she is "seriously" considering it.)

All four served in the Florida Legislature together at one point making it easy to look at their voting records. So consider this Part 1 of an ongoing examination of some key or interesting votes the foursome made. These are votes taken from the special session in late 2005 and the regular 2006 session, the last time they were all together.

SB 6-B: The so-called gift ban, which made it illegal for legislators to accept anything of value from lobbyists. The legislation also required lobbyists to disclose how much they get paid. Kottkamp, Benson, Gelber and Aronberg - Yes.

HB 145: This bill abolished the concept of joint and several liability for economic damages in negligence cases. This was a top priority of the business community and fiercely opposed by the state's trial attorneys. Benson voted yes. Kottkamp, Gelber and Aronberg voted no.

CS/CS/CS/SB 1980: This was the big comprehensive insurance bill that lawmakers passed in the spring of 2006 only to tear it all apart in the January 2007 special session amid an outcry from Floridians angry at rising insurance rates. It did include a $715 million bailout of Citizens Property Insurance Corp. in an effort to blunt the impact of assessments the carrier would place on all property insurance policies in the state. It also gave more leeway for private insurers and Citizens to raise insurance rates, although it also did set the stage for wind mitigation discounts that have since become controversial. Benson voted yes. Kottkamp, Gelber, and Aronberg voted no.

3-B: Medicaid reform. This bill created the Medicaid pilot project pushed by former Gov. Jeb Bush to remake the Medicaid system into a program that more closely resembled private insurance plans. Benson was the bill sponsor. The idea was to expand this program statewide but lawmakers have refused to do so and many legislators from both parties are skeptical that this program has worked. Benson said recently that she still believes in the concept. Benson and Kottkamp voted yes. Aronberg and Gelber voted no.

SB 1350: This was a big transportation bill that contained a $2 per day surcharge on rental cars that had to approved by a countywide referendum. Bush vetoed the bill when it got to his desk. Despite overwhelming support by the GOP-controlled Legislature, both Benson and Kottkamp voted no. Aronberg and Gelber voted yes.

HB 135: This was a charter school bill that established a new statewide board that could approve or deny charter school applications. This move was widely criticized by local school boards who considered it an illegal usurping of their constitutionally-created powers. That viewpoint was shared by the First District Court of Appeal, which ruled in December 2008 that the law created a "total and fatal conflict" with the state constitution. Benson, Kottkamp and Aronberg all voted yes on this bill. Gelber was the lone legislator among the four to vote no.

Aronberg vs. Gelber Round 1

One of the best things about the prospect of a Democratic primary for Attorney General between State Sen. Dan Gelber and State Sen. Dave Aronberg is that Democratic voters will have a easy way to compare two lawmakers before they go to the polls.

Since the two Democrats served side by side during the 2009 session it's not too hard to go back and take a look at how they voted on several key measures that will impact some things that the AG is involved in - such as regulating insurance. (The AG sits on the panel that hires and fires the state's top insurance regulator.)

And yes, the two men parted ways on some important bills, including ones that would deregulate the state's insurance industry and allow Citizens Property Insurance to raise insurance rates by 10 percent a year until the rates are actuarially sound.

This is not to say that Aronberg and Gelber will use these votes against each other on the campaign trail. But the votes could have reverberations in future endorsements - and just as importantly - the money trail when business organizations mull over whether to donate to either one of them.

The Tale of the Tape:

HB 1171, the insurance deregulation bill  or "consumer choice bill" that would allow well-capitalized companies such as State Farm to bypass state rate regulation. Now sitting on the desk of Gov. Charlie Crist, who has hinted he plans to veto the measure.

Aronberg: Yes  - Gelber: No

HB 1495, the Florida Hurricane Catastrophe Fund and Citizens bill which allows Citizens to raise rates and requires private insurance carriers to pay into a cash build up fund to boost the size of the Cat Fund, the state-created reinsurance fund. Crist signed this bill into law.

Aronberg: Yes - Gelber: No

SB 360, the controversial growth management bill that was roundly criticized by environmental groups but still signed into law by Crist.

Aronberg: Yes - Gelber: No

SB 1122, the measure that requires insurers to pay directly to doctors even if the doctor is not in the insurer network. This bill was a top priority for the Florida Medical Association yet opposed by some consumer groups, Senate Democratic Leader Al Lawson, Blue Cross and Blue Shield of Florida and the state's insurance consumer advocate.

Aronberg: Yes - Gelber: Yes

SB 1696, Higher education. This legislation made several changes to Florida's higher education system, including revising the state's Bright Futures scholarship program (forcing students to refund money they received for a dropped course), cracking down on students who don't graduate quick enough or students who try to establish residency to avoid higher tuition costs, and raising the amount that universities can increase out-of-state or graduate tuition.

Aronberg: Yes - Gelber: No

Rounding several other important bills: The two lawmakers voted against the bill that puts back in place a cap on attorney fees in workers' compensation cases. They both voted against the state budget and both men voted in favor of SB 714, the condominium insurance bill that Crist vetoed. Crist vetoed the bill because it pushed back a deadline for when local governments could require condos to put in fire sprinklers.

(UPDATE: Here's another interesting one that I forgot to add earlier - CS/CS/HB 453. This bill expanded the revenue sources available for one of Florida's private school voucher programs. It would allow insurance premium tax dollars to be used to help fund scholarship funding organizations, which then hand out vouchers to low-income children.

Aronberg: Yes - Gelber: No.)