NEBRASKA LEGISLATURE
The official site of the Nebraska Unicameral Legislature

Sen. John Kuehn

Sen. John Kuehn

District 38

The content of these pages is developed and maintained by, and is the sole responsibility of, the individual senator's office and may not reflect the views of the Nebraska Legislature. Questions and comments about the content should be directed to the senator's office at jkuehn@leg.ne.gov

The common justification for poor academic proficiency and low rates of college readiness among graduates of Nebraska high schools is poverty. At first look, the claim makes intuitive sense. Children who come from poor homes without adequate food, medical care, and housing are not able to learn during the school day. They experience stress other children do not. There is no doubt that children who come from families in poverty face greater challenges in reaching academic proficiency.

However, the claim that poverty is the primary reason for Nebraska high school students’ poor levels of college readiness quickly falls apart under even basic scrutiny. Using U.S. Census Bureau figures, the poverty rate for school aged children 5-17 in Nebraska is 13%. However, three times that many graduates, 39%, don’t reach any of the college readiness benchmarks established by the ACT. Clearly, poverty does not explain 2 out of 3 of the students who fail to meet a single proficiency benchmark.

Moreover, the “evidence” used to justify the claim, such as a graph produced by the Nebraska Department of Education, compares rates of lower income students in a school to average ACT composite scores in the same school. It does not link student socioeconomic status to their individual performance. They are not actually demonstrating that poor kids are less prepared, but rather showing that schools with more poor students, on average, tend to graduate students with poorer average composite scores. That data tells us about schools, not kids.

A numerical trick used to justify the poverty claim is to use a non-equivalent metric other than income-based poverty as a substitution.  In Nebraska, the NDE uses “free/reduced school lunches” as the variable for poverty. Children from families below 130% of the poverty level are eligible for free school meals. Schools are paid $3.31 per child for lunch and $1.79 to provide breakfast. That group alone encompasses more than just children who live below the poverty level, but would be a reasonable measure of poverty.

However, the statistic used by NDE is lumped together with students who also receive reduced price school meals, being required to pay the school only $0.30 per meal.  To qualify, the family can make between 130-185% of poverty. A single parent with two children who makes $19 per hour at their job would qualify. A family of six, like I grew up in, making $62,000 per year, above the Nebraska median household income of $59,000, would qualify for reduced price school meals. The Nebraska Department of Education includes those children in their “poverty” statistic. Lumping the two groups together and not providing separated data at the district or state level is an attempt to inflate the “poverty” numbers and perpetuate the excuse.

The argument also ignores the significant resources provided to children in poverty to overcome the lack of family income. Nutritionally, a child in poverty receives free breakfast and lunch at school. In addition, the average low income Nebraska household with children receives $395 per month to buy food through Supplemental Nutrition Assistance Program. That does not include additional food benefits through WIC, the Women Infants and Children program.

The impacts of poverty on children and their ability to learn are addressed through multiple additional programs. The average child on Medicaid in Nebraska receives $3400 in health care benefits annually. Furthermore, over 11,000 school age children from low income families receive an average annual subsidy of $3,200 to pay for child care. Federal rental assistance is paid to 27,000 low income Nebraska households for housing, and another 43,000 Nebraska households receive LIHEAP money for their utilities. Nutrition, medical care, child care, and housing assistance are all provided to improve the stability of the home for poor kids and improve their ability to be academically successful.

Also, the Nebraska school equalization aid funding formula, TEEOSA, provides schools districts increased state-aid per student based on the proportion of students in poverty. These additional direct instructional resources are to help children from low income families overcome the hurdles presented by their home life.

Despite evidence to the contrary, the poverty excuse for widespread academic failures in the state’s education system persists, perpetuated at even the highest levels of the education bureaucracy in Nebraska. It is convenient, as it avoids anyone’s accountability for failure to teach our kids. If statistics are manipulated and misrepresented cleverly, the concept appears to make sense.

Dismissing the academic ability of an entire population of children based purely on their socioeconomic status is unbridled discrimination. Poor children can learn. Two out of three Nebraska graduates who do not meet any of the ACT benchmarks are not in poverty. We must rethink education in Nebraska.

Imagine a scenario where 4 out of 10 bridges collapsed from improper engineering. Or, if only 22% of hospitalized patients met all benchmarks for standard of care. The engineers responsible for the failed design and the health care providers who consistently breached the standard of care would be subject to sanctions of their license, civil liability, and even face possible criminal charges. In both, public outrage would demand immediate improvement. In neither case would anyone entertain the notion of lowering the standards on the engineering licensing exams or health care practitioner board exams in light of systemic failures in performance.

Such scenarios seem too extreme to ever occur in reality. However, in Nebraska only 22% of 2018 high school graduates met all four college readiness benchmarks established by the ACT exam, while 39% did not attain any. The greatest asset of Nebraska, our children, are being failed by the current educational system. The vast majority of Nebraska high school graduates will require remedial coursework, paid at their own expense and often with borrowed money, to be successful in either two or four year college programs.

Ignoring years worth of alarming evidence, the State Board of Education and Nebraska Department of Education adopted a rule change lowering the standards required for admission to teacher education programs in Nebraska. The test, called the Praxis Core Academic Skills for Educators, evaluates skills in math, reading, and writing of potential teachers. Fortunately, Governor Ricketts did not sign off on the rule change, citing the need for high standards for teacher proficiency in Nebraska. It was ultimately withdrawn.

There are many outstanding teachers throughout Nebraska and teacher quality matters. A 2012 study by a Columbia and two Harvard professors, cited by President Obama in his 2012 State of the Union address, quantifies the major earnings impact of even slight improvements in teacher performance. The study found that replacing a teacher in the bottom 5% of their performance measure with only an average performing teacher raised the average lifetime earnings of the class by $250,000. Replacing an average teacher with a top 5% performer raises the lifetime earnings by almost $1.5 million.

In addition to the increase in earnings, the study identified students in classes with high value-added teachers got higher quality jobs, lived in better neighborhoods, and girls were less likely to become teenage mothers. Each of these is a marker of upward social and economic mobility. This is not the only evidence supporting the impact of teacher quality on learning outcomes.

Finland is often cited as the model of a successful education system, with some of the highest academic achievement in the world. You have likely seen videos on social media describing the extra emphasis on recess and unstructured play time for students. Teachers are among the highest paid professions in Finland. What is left out of the narrative are the extremely rigorous requirements to become a teacher in Finland, specifically that they must be among the top 10% of their high school class. It is more difficult to graduate with a Finnish teaching degree than to become a physician. Amanda Ripley, author of book The Smartest Kids in The World, puts it this way: “To get into education college in Finland is like getting into M.I.T. in the United States. And imagine what could follow if that were true here.”

Lowering the bar for academic proficiency for teachers is contradictory to evidence-based recommendations for improving student performance. The response of the Nebraska Department of Education Director of Teacher Certification to poor pass rates of teacher ed program applicants is equally baffling. Kevin Peters told the Lincoln Journal Star “We had a lot of kids not doing well on that test for whatever reason.” Rather than explore the underlying cause for lack of academic skill proficiency and developing a plan to fix it, the proposed alternative was to just lower the standards.

It stands to reason the skill deficiencies measured in sophomore college students by the Praxis Core Academic Skills Exam may be the same deficiencies identified by the ACT among high school graduates. Without aggressive remediation, high school deficiencies remain throughout college. It is unlikely K-12 students will develop the skills and passion for rigorous academic achievement if the people they spend the most time with outside of their parents, their teachers, don’t have a respect for and record of high academic achievement themselves.

Horace Mann, one of the earliest advocates for universal public education in the United States, said “education, then, beyond all other divides of human origin, is a great equalizer of conditions of men—the balance wheel of the social machinery.” The ability of education to improve an individual’s social and economic mobility is unparalleled.

Competency in reading, quantitative skills, and science are not only required for attainment of degrees. Modern American life utilizes increasingly complicated financial products–mortgages, insurance plans, credit options, and retirement savings. Advanced medical technology requires more complex decisions for patients and families. Information literacy in the digital age is needed now more than ever.

In the recently released report of 2018 Nebraska high school graduates’ ACT scores, 81% of Nebraska graduates aspired to post-secondary education. It is clear Nebraska students and families value education as the gateway to a better future. The great tragedy is revealed a few pages earlier in the report. While 8 in 10 students want to pursue higher education, only a little over 2 in 10, 22%, met the proficiency benchmarks in english, reading, math, and science necessary to succeed in first year college courses. More outrageous, 4 in 10 did not meet a single benchmark.

A student’s academic potential cannot be measured by a single test, nor should a student be defined by a single score. However, taken in aggregate, the results of the first year in which all Nebraska high school juniors are required to take the ACT test should sound alarm bells among parents and policy makers. It is incorrect to assert the ACT is only relevant for students pursuing a four year college degree. The modern ACT is far more than a memorization and recall standardized test. Today’s ACT is a sophisticated evaluation tool that assesses skill and competency in english, math, reading, and science.

While much focus is incorrectly placed on the composite score, the ACT has developed a series of metrics that effectively predict how prepared a student is for introductory college courses. Using comprehensive data, the ACT has established baseline scores in four different areas that predict a student will have a 75% chance of scoring a grade of C or better in an introductory college course, the college readiness benchmarks referenced above.

The 6 in 10 Nebraska high school graduates who want to pursue education beyond high school but do not possess the proficiency in the four skill areas to be successful in a first year college course have several options. All come with a significant out of pocket cost. First, they can enroll in college course work, struggle, and drop out. Second, they can pay for remedial coursework in college to build the skill set they did not attain in high school, costing both years and tuition dollars. Third, they can change their post-high school goals from their aspirations, limited by their lack of proficiency in high school skills. In all three of these alternatives, most Nebraska students and their families will be taking on debt to finance the costs.

The fourth, and worst alternative, is that students not prepared for academic work beyond high school, regardless of their desire, simply cannot pursue it. The great equalizer of education is beyond their reach. This is the greatest tragedy of all.

College is not the best or only path for every high school graduate. However, every high school graduate in Nebraska should be prepared to have the option to pursue a two or four year degree if they choose. The systematic failure across the state of our public education system to prepare all students for success beyond the high school diploma cannot be ignored. The Nebraska Education Commissioner saying the state is doing “relatively well” is a cop out. Nebraska students and families deserve better. Education leaders need to stop making excuses.

From the Great Recession, triggered by complex mortgages many consumers did not understand, to the 2016 election in which voters could not discern real from fake information on their social media feed, recent history is riddled with avoidable complications created by a lack of academic proficiency in basic quantitative and reading skills. Now, more than ever, students need to be leaving high school with verifiable skills, not just a diploma.

Objective evaluation of policy after it has been implemented is vital. Only through critical analysis can lawmakers determine whether or not a policy is having its intended outcome and make any needed modifications. The Legislative Performance Audit Committee, which I chair, has released a performance audit in response to requests from legislators to examine the impact of the juvenile justice reforms adopted in 2013 and 2014 on the operation of the male youth facility in Kearney known as YRTC-K.

In 2013 the Nebraska Legislature passed a sweeping reform of the juvenile justice system. Prior to the passage of LB 561 in 2013, youth offenders were managed in a more punitive, custody-based model. At the center of that system were the Youth Rehabilitation and Treatment Centers. Originally known as the Nebraska State Reform School for Juvenile Offenders, two YRTCs are operated by the Department of Health and Human Services: a male facility in Kearney and a female facility in Geneva. A driving force behind the reform measures in 2013 was a belief that courts had become over-reliant on an incarceration-like system for youth offenders rather than rehabilitation and treatment, which meant unnecessarily commitment of juveniles to the YRTCs.

The 2013 policy adopted a rehabilitative approach to youth who had committed crimes. Rather than punishment by commitment to a state facility, juvenile courts would first utilize community based social services, approaching the offense with local treatment rather than incarceration. Commitment to the YRTC would be the last resort for high risk youth or those who do not improve after utilizing all available local resources. In 2014, LB 464 gave additional discretion to prosecutors and the courts when pursuing charges in juvenile or adult court for youth offenders, expanding options for use of a treatment rather than a punitive approach to juvenile crime.

Specifically, the performance audit examined the demographics of youth committed to YRTC-K, the nature of youth violations at the facility, and the staffing levels during the period directly prior to and immediately following the implementation of the juvenile justice reforms. The purpose was to evaluate any potential impact of the legislative action on the population at YRTC-K.

Among the wealth of information in the 86-page report, two findings stand out and warrant further evaluation. First, youth from rural counties are disproportionately represented in the YRTC-K population. In fact, from 2014-2017, rural youth at YRTC-K are 10-15% higher than the percentage of rural youth statewide.

The disparity warrants further information about the rural offenders at YRTC-K, including their offense level and participation in rehabilitation programs before institutional commitment. The legislative changes were successful in decreasing the total number of youths committed to YRTC-K, as well as the average daily population, by utilizing local treatment resources first. However, if rural youth do not have adequate access to treatment and rehabilitation programs in their communities because the services do not exist, commitment to YRTC-K may be the only option, rather than a last resort.

Second, the performance audit revealed an extremely unequal distribution of violent offenses committed by young men at YRTC-K. The audit identified that 37% of the youth had no documented reports of misconduct, either violent or non-violent. Of those youth cited for a violent incident, 32% had only one incident, while another 42% had only between 2 and 5 incidents. However, a very small proportion of the population were responsible for most of the violent incidents, with 14% of those cited committing between 6 and 10 infractions and 12% committing 11 or more infractions. On the extreme, 7 individuals were responsible for more than 30 violent incidents each.

It is prudent for lawmakers to examine whether a single facility is the best option for housing a population of non-violent youth and youth with a mild record of infractions with a much smaller population of youth who exhibit consistent patterns of violent behavior during commitment. For the safety of youth and staff at the facility, identifying alternative strategies for dealing with the small population of youth responsible for the greatest violence may be beneficial.

The YRTC-K performance audit highlights the need for specific goals and identified metrics to be clarified during the adoption of legislation. Defining what the outcomes of any reform measure will be and how to measure their success or failure is a responsible approach to public policy.

In 2015, a study appeared in the academic journal International Archives of Medicine titled “Chocolate with high Cocoa content as a weight loss accelerator”. Within weeks news of the study was reported in over 20 countries in print, on morning TV shows, and in online stories. The study’s results showed that the participants on a low carbohydrate diet who ate 1.5 ounces of dark chocolate daily lost more weight compared to those eating a low carb diet alone, were too good to be true.

The headlines were sensational. The coverage was global. The study was a hoax.

Filmmaker Peter Onneken and journalist John Bohannon developed the scenario to demonstrate how a scientifically unsound study, literally “junk science”, could be published by a journal and reported on by the media with no critical evaluation of the merits or validity of the data. Although the study was actually conducted, the sample size was very small, only 15 people, and the analysis of the results lacked standards and rigor expected of scientific inquiry. Not a single journalist examined the methodology or results of the study before reporting it to the world. In a very graphic and indisputable way, Onneken and Bohannon made their point.

On September 14 a report was filed with the Nebraska Legislature on the progress of a $250,000 pilot study of cannabidiol oil paid for by Nebraska taxpayers at the University of Nebraska Medical Center. LB 390, passed in 2015, authorized the study and required a progress report to the Legislature each year by September 15. The report filed is less than a page and a half in length and contains the information required by law.

The legislative report is not, by any stretch of the term, a scientific study. While the number of participants are listed (23), and some of the side effects are enumerated, there is no analysis of the significance or magnitude of the observations. The report states “the majority have demonstrating [sic] benefit”, but does not state what those benefits are, if “majority” means merely 12 of the 23, if the 3 patients who dropped out of the study due to negative effects are included, or whether the drug had different impacts on the 11 minors in the study compared to the adults. The small sample size, large number of variables that are mentioned, and the diversity of the study subjects are all red flags for anyone critically evaluating the outcomes of the study.

That did not, however, stop media from overstating conclusions based on the brief status report of the project. A September 15 Lincoln Journal Star article repeated the text of the report, without ever examining whether the results were statistically valid. In response to an email I sent to the report’s author, the UNMC Associate Vice Chancellor for Clinical Research, on September 18, he replied “the principal investigator is working with a statistician now on the data” and that complete data was not yet available even for review. Given the very small number of study participants, it is impossible to distinguish any observed effect from random chance without careful and rigorous statistical analysis.

The lack of statistical analysis or even a complete data set didn’t seem to matter to the Lincoln Journal Star editorial board, who proclaimed in a September 21 editorial headline “UNMC study reiterates need for a medical cannabis law”, even though the “study” didn’t even examine medical cannabis. The cannabidiol oil in the study is actually a commercial product that received FDA approval in June of this year. Just a few days later, the Omaha World Herald News Bureau also cited the “study” in an article about proposed medical marijuana legislation. Senator Anna Wishart, who is again proposing the policy, sent the Lincoln Journal Star article to all senators via email on September 18 as “evidence” in support of her medical marijuana policy.

When media articles and legislative reports are used as the basis for making policy, they should, at minimum, be based on sound and rigorous analysis. Making conclusions based on a small, incomplete data set that has not yet undergone any peer review is reckless and irresponsible. The failure of the report’s author and the journalists to inform the public that the data set has not yet been subject to analysis has the potential to mislead and misinform. A single email was all it took for me to obtain the facts.

While the chocolate-weight loss scenario showed how absurd sensationalized science reporting can be, the reporting on the cannabidiol study is not a joke. When taxpayer money is used to fund a study, the assumption is the results will be presented in a valid, unbiased manner. I have recommended to the report’s author he amend his filing with the Legislature to reflect the incomplete and unanalyzed status of the data. Verifying the veracity of information should be the first job of a journalist, especially when their articles are used by lawmakers and editorial boards to promote public policy. This instance indicates lawmakers cannot assume accuracy in newspaper articles without verifying the details themselves. The facts matter. Public trust and human lives are at stake.

As the only one-house state legislature in the nation, Nebraska’s legislative branch of government functions very differently from the other 49 states. Senators are elected on a non-partisan basis, with open primaries advancing the top two candidates regardless of their party affiliation. With no “majority party” or “minority party” structures established in the legislative rules, political party registration does not play any official role in the internal organization of the Legislature, its committees, or its leadership.

Having only a single chamber based solely on population fundamentally changes the political dynamic in Nebraska compared to other rural states. Despite agriculture being the largest industry and economic driver of Nebraska, lawmakers outside of Douglas, Sarpy, and Lancaster counties are a minority in the legislative process. It is expected that the number of seats representing greater Nebraska will shrink by two in the redistricting following the 2020 census. Without a geographically based chamber, like the senate in most states, to balance the population based chamber, there is less incentive to cooperate on legislation of common interest to the state as a whole. The legislative paralysis on funding for rural schools and the Ag land property tax crisis demonstrate the practical reality of a single, population based legislature.

The structure, both operationally and electorally, of the other two branches of Nebraska state government also differ from many other states across the nation. In other states some agency directors are elected on a statewide partisan ballot. Most notable is the election of the Director of Agriculture in our neighbor Iowa. Constitutional officers also vary. For example, the state of Kansas does not have a State Auditor.

The widest variation in the executive branch among the states is found in the office of the Lieutenant Governor. In Nebraska the Lieutenant Governor is selected by the candidate for Governor before the general election and the two appear together on the general election ballot as a ticket. Nebraska is one of only six states that follow that process.

Five states, including Wyoming, do not have a Lieutenant Governor. In Tennessee and West Virginia the office is filled by the president of the state’s Senate, who is elected by the state senators from among their own. In 18 states the Lieutenant Governor and Governor are elected separately, allowing for the possibility of members from different parties or political adversaries to be elected to the two roles. In eight states, the Lieutenant Governor is selected by voters in a separate primary election rather than selected by the gubernatorial candidate, and then the two run jointly as a ticket during the general election. Seven states require the Lieutenant Governor candidate to be selected prior to the primary election and appear on the ticket with the gubernatorial candidate. In four states, including South Dakota and Iowa, the Lieutenant Governor is selected by the major political parties at their state convention rather than through a primary or gubernatorial selection process.

Within the judicial branch, the “Nebraska way” is not universal. In Nebraska a judicial nominating commission advances a slate of nominees to the Supreme Court. The Governor selects a justice from among those on the list. The six associate justices are appointed based on geographic districts, while the chief justice, a position held for their entire tenure on the court, is drawn from a statewide pool. In contrast, the Supreme Court justices in a number of states are elected by popular vote of the electorate. Some are based on party registration, others on a nonpartisan ticket. Within the court, terms in office, term limits, and age restrictions vary widely from state to state.

Learning from the successes and challenges of other states is helpful to improve the effectiveness of Nebraska government. It is all too easy to get caught in a closed mindset, assuming the way things are done in Nebraska is the only way. Periodic assessment of what is working well and a clear-eyed assessment of what is not is essential to the democratic process.

When Nebraskans adopted the model of the Unicameral Legislature in 1934, one of the principal arguments in favor of the change was legislative efficiency. George Norris found the bicameral system particularly inefficient. The timing of the ballot initiative has also been credited with the adoption of the Nebraska unicameral experiment. The failure of the 1933 Legislature to address prohibition, tax reform, and appropriations “left a generally bad impression” among Nebraskans. Voters, facing the financial pressures of the Great Depression, demanded efficiency from state government and expected a responsive and adaptive legislature.

With striking echoes of the upheaval that led to the creation of the unicameral system, Nebraskans again express extreme frustration 85 years later at the failure of the Nebraska Legislature to address tax reform and many other issues. At the root of much of the legislative inaction is the increased use of the filibuster as a tool for obstruction of the legislative process by a minority of senators. Nebraska would be wise to look to the example of other states that effectively use the filibuster in moderation through common sense rules that require professionalism of the legislators engaged in the political tactic.

You won’t find the word “filibuster” in the Rules of the Nebraska Legislature. The term is used to describe a political tactic to extend debate with the intention of preventing a vote on a bill. Using various procedural motions, senators consume legislative time allocated to the floor debate of a bill, thereby preventing an up or down vote on the merits of the legislation. In order to overcome a filibuster, a cloture motion, which is a motion to cease debate, must pass. In Nebraska, a cloture motion requires a two-thirds majority vote in the affirmative, or 33 of the 49 senators voting to cease debate and vote on the underlying bill.

As a political tactic, the filibuster is as old as the reign of Julius Caesar. Cato the Younger exploited the rule that all business before the Roman Senate must conclude at sundown, debating an issue to the end of the day and preventing action. The filibuster is a controversial hallmark of the U.S. Senate. Most states have some form of extended debate, although the rules vary not only between states but often between the Senate and the House of a state.

Extended debate and the use of the filibuster is an important tool to allow minority interests in the Legislature to be heard. However, the purpose of extended debate in a legislative body is to allow the minority extra time and debate to make its perspective known, and, in doing so, attempt to convince the majority of its position. In a representative democracy, the ability of the minority to obstruct the will of the majority after having additional hours to present their case to fellow lawmakers and the public is nothing short of undemocratic.

Almost all states that permit extended debate have strict rules of conduct for lawmakers wishing to employ the tactics of the filibuster. Most common is enforcement of rules that require the discussion during the filibuster be germane to the legislation at hand. In many states, debate is ceased if legislators deviate from strict focus on the bill as few as three times. In Texas, legislators can’t eat, drink, use the restroom, sit, or even lean against their desk during a filibuster.

In most states, debate is not allowed to become overly personal. Members often are not allowed to refer to each other by proper name, and references to the executive branch, judicial branch or the actions thereof usually are not allowed. Indecent language and disorderly words are prohibited by most other states. If you have tuned in to the legislative coverage during a Unicameral filibuster, you know that is not the case in Nebraska, where debate meanders far off topic and the time is often filled with personal attacks against others in Nebraska government.   

Among states that permit procedural execution of the filibuster, all have a mechanism for permitting a vote to end debate. Known as cloture, Nebraska has the highest threshold in the nation for ceasing extended debate. While most states require a simple majority of lawmakers voting or a three-fifths majority of elected members, Nebraska requires a two-thirds affirmative vote of the entire legislature. This threshold is higher than even an override of a gubernatorial veto. The wording of a cloture motion under Nebraska Legislative rules is “full and fair debate”, an inaccurate statement since most of the debate in the dozens of filibusters during my four years in the legislature was not germane to the bill on the agenda.

Nebraskans would be wise to carefully examine the rules in practice in the forty-nine other states that effectively protect the ability of minority interests to be represented without the needless gridlock experienced in Nebraska. When the 1933 Nebraska Legislature failed to adapt to the needs of Nebraskans, it spurred a successful ballot initiative intended to improve the efficiency of state government. If the Nebraska Legislature continues to be stalled on important tax reform and spending provisions by the obstruction of a small minority, citizens may need to look to history as a path toward a more effective legislative future.

States across the country grapple with many similar issues. State governments nationwide attempt to spur economic growth, develop stable education funding policies, address access of vulnerable citizens to health care, and enhance their transportation infrastructure. Revenue volatility has been recognized as the “new normal” for state governments big and small, as well as rural and urban. Every state is attempting to develop reasonable tax policies and stable funding for vital state programs.

The federal system in the United States empowers states with the autonomy to develop solutions independently and tailored to their state. In 1932, U.S. Supreme Court Justice Louis Brandeis famously wrote a “state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” As “laboratories of democracy”, states across the nation are developing and implementing new and innovative approaches to issues that face many legislatures.

During my time as a state senator I have had the privilege to meet, collaborate, and share ideas with other state legislators throughout the Midwest and across the country. I have been a presenter on livestock policy at the national meeting of the State Ag and Rural Leaders and invited to a roundtable on innovative drug access at the Biotechnology Innovation Organization International Meeting with the National Conference of State Legislators, among others.

I have been particularly active in the Council of State Governments, both within the Midwest region and nationally. I currently serve as a member of the national Shared State Legislation Committee (SSL) for CSG. Each year the committee produces a docket of legislation that is made available to legislators and bill drafters across the country. Bills are proposed by state legislators nationwide for inclusion in the SSL docket. The committee evaluates each bill and discusses it before deciding whether or not to include it in the national publication.

The criteria we use to evaluate each proposal reflects the intent to disseminate the best outcomes from the 50 state laboratories of democracy. For inclusion, the bill must address a current state issue of national or regional significance, provide a benefit to bill drafters, and provide a clear, innovative, and practiced structure and approach. Through creation of the volume, CSG is able to provide the benefit of experience and expertise from states across the nation to every legislator in the country. There is no need to “reinvent the wheel” for complex issues.  Unlike “model legislation” developed by special interest groups to achieve their political purposes, the SSL docket is developed by legislators with the sole purpose of sharing ideas and strategies with their colleagues. During my years on the committee, I have been able to sit down at a table with my peers from across the country work through hundreds of innovative pieces of legislation.

Following each meeting of the group, I am struck by two things. First, states as diverse as Florida and Nebraska face many of the same challenges. Citizens have ever increasing expectations of their state governments, regardless of population size, location, or demographics. Second, Nebraska’s structure of state governance is very different from most states in a number of significant ways. While most obvious is that we are the only one-house state legislature, there are a number of striking differences in how state government is organized in Nebraska.

Over the next few weeks I will be writing about some of the unique structural aspects of Nebraska state government.  In some cases, these differences provide a distinct advantage. In others, they prevent vital collaboration and information sharing that is needed to address complex state problems.

Compared to many states, participation by Nebraska senators in regional and national legislative groups is relatively low. That is a missed opportunity for Nebraska. If more senators listened and learned from our colleagues across the country, we would not find ourselves stuck on high center on so many important issues. Voters want their health care providers, engineers, and teachers to be up to date on the most current facts and information in their fields. I suspect they expect their lawmakers to be equally as proficient.

Public hearings are an important part of the legislative process. In Nebraska, every bill that is introduced must have a public hearing. The hearings allow every citizen the opportunity to provide their insight and expertise to legislators, as well as give voters the chance to voice their opinion on legislation directly to senators. However, bill hearings held during the legislative session are not the only public hearings conducted by the Legislature.  Although the Legislature is not currently in session, hearings on Interim Study Resolutions are currently underway. You can find the list of the public hearings, including their topic, date, and time on the Nebraska Legislature website.

Interim Study Proposals are introduced by senators or standing committees during the legislative session. Designated with the “LR” prefix, each study is referred to one of the standing committees using the same criteria when referencing legislation. Following adjournment of the legislative session, legislative staff and committees begin working on the various study topics introduced. Committee Chairs prioritize the resolutions assigned to their committee and determine whether a public hearing will be held. This year 109 different studies were introduced.  A full list of the interim study resolutions and their full text is available on the homepage of the Nebraska Legislature’s website.

Interim studies vary significantly in their depth and purpose. Studies introduced this year include examination of specific statutes or programs, such as the Property and Casualty Insurance Rate and Form Act and the One-Call Notification System Act. Others are more general in nature, like the availability of the affordable housing or the school finance structures. Interim studies tend to be political, rather than objective, in nature. They should not be confused with a Performance Audit, which is an objective study of a legislative program with defined standards for analysis conducted by trained professional auditors. Legislative staff, which may or may not have expertise in the specific topic being addressed, are typically responsible for the research and production of the interim study report.

Public hearings are not required and are at the discretion of the chair. Whether or not the hearing will be open for public testimony is also at the discretion of the Committee Chair. Frequently, hearings are conducted with invited testimony presented by special interest groups with a specific interest in the study topic. The purpose of a study is as variable as their specificity. Interim studies can be used to research future legislation, providing an opportunity to identify stakeholders that may engage on an issue. They may also examine a concept that failed to advance in a prior session, helping to refine and improve legislation for future years.

While Legislative Resolutions and their associated interim studies do not result in a change in policy or law, they are worthy of public attention. Interim studies are frequently cited in bill hearings and during floor debate of bills. The scope and topic of studies provide insight into the interests of individual senators, as well as the priorities of Committee Chairs. Most important, interim study topics frequently appear as bills in subsequent sessions.  

If you have an interest in any interim study topic and would like to submit comments or participate in the hearing, please contact my office for assistance.  Citizen engagement in all of the public hearings is important.

 

The legislative, executive, and judicial branches in Nebraska function through a system of checks and balances. Nebraska law outlines the procedures by which one branch of state government can check the actions of another, ensuring compliance with the Constitution and laws of the state through accountability.

Thousands of your tax dollars are paying private attorneys as some state senators seek to obtain a judicial ruling that Nebraska state senators and their staff have absolute immunity from legal action. If successful, the legislative branch would not be subject to any injunction or oversight by the courts should the Unicameral break the law. I oppose these efforts and believe elected officials and their staff should be subject to Nebraska law. Nebraska voters expect state senators to follow state law and be subject to the same checks on power as other branches of government.  

On the last day of the legislative session Judiciary Chairwoman Laura Ebke brought a subpoena request from seven members of the Judiciary Committee to the Executive Board for approval. In the request, Senator Ebke sought authorization to subpoena Corrections Director Scott Frakes to a hearing called by the Judiciary Committee. At the time of her request for subpoena, Director Frakes had not even had an opportunity to respond to her request that he appear before the committee. The hearing in question was not the product of an investigation authorized by the Legislature, but rather requested solely by the Judiciary Committee. Five of the eight members of the Executive Board voted to authorize the subpoena.  

Under Nebraska Law, specifically Section 50-406, the Legislature has the ability to issue a subpoena to compel testimony to exercise oversight. The opening section of the statute states clearly: “In the discharge of any duty imposed by the Legislative Council, by statute, or by a resolution of the Legislature” a committee may issue subpoenas with approval of the Executive Board. A committee cannot exercise subpoena power in an investigation or hearing unless the investigation itself has been authorized at some point in time by a majority vote of the entire Legislature.

The logic is clear. A rogue committee and a small group of senators should not be able to launch an investigation and gain authority to issue subpoenas without the knowledge and consent of the Legislature as a whole. As is seen in this case, only 11 of the 49 senators among two committees have been able to exercise the subpoena power and drag the Nebraska taxpayer into legal proceedings.

The Attorney General, in an unprecedented move, filed a motion to quash the subpoena on the grounds that it was not issued in compliance with state law. Executive Board Chairman Dan Watermeier and Judiciary Chairwoman Laura Ebke, without a meeting of the Executive Board, filed a countersuit, claiming absolute immunity for the Legislature from legal action. District Court Judge Lori Maret agreed with the Attorney General that the subpoena was not in compliance with Nebraska statute 50-406 in a ruling on August 8 and quashed the subpoena.

In a motion that passed only with a simple majority of five votes, the Executive Board of the Legislature has now filed an appeal to the District Court ruling, again arguing absolute immunity for legislators. The foundation for their assertion lies in the Speech and Debate Clause of the Nebraska Constitution, found in Article III Section 26. The Constitution reads: “No member of the Legislature shall be liable in any civil or criminal action whatever for words spoken in debate.”

As Vice Chairman of the Executive Board and governing committee of the Legislature, I am one of the fifteen senators named as defendants in the legal action brought by the Attorney General that the Legislature is currently appealing. However, I did not vote to authorize the illegally issued subpoena that is the initiating cause of the lawsuit, nor have I voted to authorize the legal challenge and current appeal. It is my strong conviction that members of the Legislature, acting in their official capacity, must follow state law when exercising their oversight function.

Constitutional protection for senators to be able to speak freely in the course of debate without fear of legal action for their political viewpoint is appropriate, and even essential for free government. However, no member of the Nebraska government should be immune from following the law. A legal argument that Legislative Committees cannot be held accountable by the courts for failure to follow the law does not align with the principles of transparent, accountable government. These five individuals, a small minority of senators, are using your tax dollars in an attempt to use the courts to prevent you, the voters, from being able to place any check on legislative power. Everything about this countersuit and appeal is wrong–what it seeks and how it was authorized–and I will continue to fight it.

Sen. John Kuehn

District 38
Room #12th Floor
P.O. Box 94604
Lincoln, NE 68509
Phone: (402) 471-2732
Email: jkuehn@leg.ne.gov
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