KyKurmudgeon

Sunday’s column:

FRANKFORT — More than once in this column, I’ve noted the sight that often greets folks leaving the Capitol late in the day.

Buzzards. Hundreds of buzzards circling the sky above the seat of state government. Hundreds more roosting in the trees lining the nearby Kentucky River.

They come to mind again as another General Assembly begins because their numbers and the sense of impending death these carrion convey make them a fitting symbol for the likely outcome of the triangular political maneuvering that will play out below them during the next few months.

Call this the Buzzard Triangle, because it can be just as deadly as the fabled Bermuda Triangle. Not for ships, sailors and passengers, mind you. But rather for reason, common sense and any semblance of bipartisan support for good public policy that can drag Kentucky out of the mid-20th century — if not the 19th — onto the doorstep of the 21st century’s second decade.

Gov. Steve Beshear occupies one corner of this triangle. He wants Kentucky racetracks to get slots, and not solely because it would put them on an equal footing with their counterparts in “racino” states where purses and breeding incentives are fattened with revenue from expanded gambling. Taxes from racetrack slots would make it a bit easier for Kentucky to deal with a $1.5 billion revenue shortfall over the next two-year budget cycle.

But Beshear repeatedly has voiced opposition to enacting comprehensive tax reform during a recession. Never mind that real reform would give relief to low- and middle-income Kentuckians at a time of their most desperate need. Never mind that it would give the state the stable, sustainable revenue base that would make it more resilient in future economic downturns. Now is not the time to do tax reform, according to Beshear.

In another corner of the triangle sits House Speaker Greg Stumbo. He, too, supports racetrack slots. He even pushed a bill through the House last summer only to see it die in a Senate committee.

Unlike Beshear, though, Stumbo has made positive noises about addressing some level of tax reform in this session. His stated motive is that he doesn’t want to turn his back on education, which has been protected from the effects of other recent revenue shortfalls but may be at risk now.

That leaves the third corner, where Senate President David Williams talks about slots as if they are a societal ill, even though he has acknowledged frequenting casinos himself.

Williams also has indicated a willingness to address tax reform. But his recent comments regarding the size of the revenue shortfall (he puts it at something less than $1 billion) suggest he’s more inclined in this session to reduce the size of state government and make it live within its means. Of course, that probably would involve layoffs of state employees that increase the state’s jobless rate as well as the demand for the very state services that get cut in the process.

Beshear needs a win. Midway through his first (and perhaps only) term, his administration’s achievements, commendable as some of them may be, fall considerably short of “legacy” status.

Partly, that is the result of having to deal with a series of revenue shortfalls that not only demanded much of his attention during the past two years, but also left no spare budget change for sexy new initiatives.

But a significant share of the blame rests with Beshear himself. He squandered much, if not all, of his post-election political capital in a disastrously unsuccessful attempt to keep Lt. Gov. Daniel Mongiardo’s former Senate seat in the D column. He has never fully recovered from that debacle and has yet to demonstrate the political and persuasive skills a governor must bring into play if he wants to bend the legislative process to his will.

Stumbo’s recent comments on taxes and education (following his success at pushing expanded gambling through the House after Beshear failed in his first attempt) at least suggest he may be positioning himself as a strong, progressive alternative to a weakened, hesitant incumbent in the 2011 Democratic primary.

Upset by Beshear’s attempts to improve Democratic numbers in the Senate by appointing incumbent Republicans to plum jobs, Williams can be expected to make life as difficult as possible for the governor during this session. Of course, if obstructionism by Senate Republicans produces Draconian results, well, that has a down side, too.

So, there it is. Welcome to the Buzzard Triangle.

Mixing comparisons, if not metaphors, the inscription at the entrance to Hell in Dante’s Inferno provides an apt warning of what lies ahead as this triangle maneuvers through the 2010 session: “Abandon hope, all ye who enter here.”

Hooray! Column time again. But this is the last one for the year. We’ll be shorthanded next week, and I’m outta here the following week. So, happy holidays to all.

Sunday’s column:

You win some; you lose some.

Gov. Steve Beshear and the Kentucky horse industry won one, barely, in a special election to fill the state Senate’s 18th District seat. Then, they lost one, big time, in a 14th District special election.

After Rep. Robin Webb won the 18th District seat vacated when Beshear appointed Republican Charlie Borders to the Public Service Commission, Democrats figured they had found a winning formula for taking back the Senate after 10 years of being exiled from power.

On the other side, the unsuccessful pitch Senate President David Williams and Sen. Damon Thayer made to a horse industry group about  linking expanded gambling to a vote of the people suggested Republicans were hearing hoofbeats.

So, Beshear tried the “appoint and conquer” gambit again, naming former Majority Leader Dan Kelly to a circuit judgeship. But the second attempt turned into a big “Oops!” for Beshear and the horse industry when Republican Rep. Jimmy Higdon soundly defeated the Democratic candidate, former state Rep. Jody Haydon, in the special election to fill the 14th District seat.

For different reasons, Beshear and U.S. Sen. Mitch McConnell tried to spin the result into a reflection of the national mood — Beshear to deflect blame, McConnell to argue the public is outraged at the Democratic powers that be in Washington.

But even though Republicans used some national issues in this race, all politics is local. And this race was as local as it gets.

First, the horse industry hurt its own cause by going negative early and often. Higdon, a likeable candidate well known in the district, no doubt picked up some sympathy votes as a result.

Second, Beshear angered some Democrats in the district by appointing a Republican to a judgeship coveted by members of his own party. Angry members of your own party don’t help you win elections.

Third, appointing one Republican to a cushy job in hopes of electing a Democratic replacement can be spun as something other that what it really was. But a second appointment establishes a pattern that looks remarkably like a power grab, and voters tend to dislike power grabs.

Finally, Higdon may have started the race with an edge in name recognition because he had been on the legislative campaign trail more recently than Haydon and because the geography of the district put him in proximity to more of its voters. Marion County, Higdon’s home, borders three of the district’s other four counties while Nelson County, where Haydon lives, borders just two.

Even though he’s 1-1 in special elections created by appointment, Beshear probably won’t try it again anytime soon.

So, what does the horse industry do next in pursuit of racetrack slots?

Well, if it can’t change the 20-17-1 Republican-Democrat-Independent dynamic in the Senate, maybe it can exploit the division in the Republican Party over gambling to change the dynamic within the Senate Republican caucus.

Williams has the caucus aligned with the party’s voting base, which opposes expanded gambling. But that upsets many Republicans because it has cut off some of the flow from its money base, which traditionally has included the Thoroughbred industry as a major player.

It still can be a player if, instead of just giving money for any Republican cause, it focuses on fielding well-financed, pro-slots primary opponents for incumbent Republican senators who have let a “red” industry down.

Even in safe districts for one party or the other, the fear of well-financed primary opponents can concentrate incumbents’ minds, perhaps enough so in this case to change some of those no Republican votes into yeses.

Other duties have me tied up this. Next week probably will be the same. And the week after that, I’m taking some time off for the holidays. Don’t know when normality will return.

Sunday’s column:

This and that as the morphing of the state Senate continues:

Frankfort’s worst-kept secret in recent memory produced its expected conclusion when Gov. Steve Beshear picked former Senate Majority Leader Dan Kelly to fill a vacant seat on the 11th Judicial Circuit bench. Funny, isn’t it, how the months of hallway chatter preceding the nominating process proved to be so eerily accurate on this one?

Oh, well, Beshear at least gave the appearance of considering the other two nominees. He let a full weekend go by before naming Kelly to the post, thereby creating another opportunity for Democrats to capture a seat formerly held by a Republican in a special election.

But the Kelly gambit has more potential for exploding in Beshear’s face than the appointment of Republican former Sen. Charlie Borders to the Public Service Commission, which set up the special election won by Democrat Robin Webb.

Although a coveted job with big-time pay, a PSC commissioner essentially serves at the whim of the governor. When Borders’ initial term is up, whoever occupies the governor’s office will decide whether he gets reappointed or gets shown the door.

But appointment to a judicial post invests the lucky recipient with the perks of incumbency when the next election rolls around.

By giving a Republican the opportunity to run a “Keep Judge Kelly on the Bench” campaign in the next election, Beshear upset some members of his own party who thought a Democratic governor should bestow such favors on fellow Democrats. Should they decide to sit out the upcoming 14th District special election, picking up Kelly’s seat would become more problematic even though Democrats’ advantage in voter registration is more than 2 to 1.

All other things being equal, though, the 14th District ought to be receptive to the current Democratic mantra about giving Kentucky’s signature racing industry the expanded gambling options it needs to compete with racino-enhanced purses and breeding incentives that are luring Kentucky trainers and owners to other states.

The 14th isn’t in the heart of horse country, but elements of the racing industry exist there. And it has a significant population of Catholics, who are more accepting of gambling than some other faiths.

                                                         * * *

I grew up in the 14th District, in Washington County. I came of age, slightly ahead of legal age, at a couple of Lebanon nightclubs way back in the day.

But I know the two candidates in the special election — Republican Rep. Jimmy Higdon and Democratic former Rep. Jodie Haydon — only through their legislative careers. Both are good guys. And left to their own devices, I would expect them to run a clean campaign.

Unfortunately, their respective parties and assorted other groups rarely let two decent candidates settle the issue by themselves these days.

                                                         * * *

Then, there were none.

Entering last week, 11 of the 12 states Kentucky’s racing industry competes with offered some form of expanded gambling. On Tuesday, Ohio voters made it 12 for 12.

Not immediately, of course. A Cincinnati casino isn’t expected to open until 2012. But when it does, the one remaining gap in the line of casinos along Kentucky’s northern border will be closed.

And Kentucky tracks, which recently requested 67 fewer racing dates in 2010 than they initially requested for 2009, will find themselves at an even greater competitive disadvantage.

All the more reason for Kentucky lawmakers to take the legislative route to approving racetrack slots rather than a constitutional amendment process that could delay approval by up to two years.

                                                       * * *

“Holiday tree” is too PC by far for the kurmudgeon in me.

But having gone there, Gov. Beshear should have stayed there. Reversing course to “Christmas tree” comes across as a flip-flop.

I’m not dancing yet, but I got lucky and had the “one week on crutches” version of knee surgery. So, I’m back to being a kurmudgeonly editorial writer/columnist/blogger.

I’m scheduled to get a knee scoped Wednesday. If I’m lucky, I’ll be bouncing around again in one week. If I’m unlucky, I won’t do any bouncing for four weeks. Since it’s my right (driving) knee, guess which I prefer.

Anyway, if it’s the unlucky option, I may do some blogging and editorial writing from home during those four weeks. I might even write a column or two. On the other hand, I may just lie on my butt reading good books, watching old movies and cussing out the brace immobilizing my leg.

Sunday’s column:

That didn’t take long.

Prominent members of his party take Senate President David Williams publicly to task for blocking any resolution of the gambling debate, and it suddenly starts raining proposed constitutional amendments sponsored by Senate Republicans. One of them even comes from the obstructionist himself.

Of course, Williams’ amendment wouldn’t resolve the gambling issue. On the contrary, it’s a delaying tactic. If his proposal to ban expanded gambling absent the passage of a constitutional amendment wins legislative and voter approval in 2010, the earliest an amendment authorizing slots at racetracks or any other form of gambling could pass would be 2012.

(Yeah, I know it’s technically possible voters could approve both Williams’ amendment and the one proposed by Sen. Damon Thayer — that actually would authorize racetrack slots — next year. But let’s be real. Kentucky voters aren’t bipolar, which they would have to be to pass both of these measures at one time.)

But delay is secondary to the real motive behind Williams’s proposal — a desire to have an amendment on the ballot that brings conservative voters out in a crucial election that will determine which party controls the Senate during the legislative and congressional redistricting following the 2010 census.

You can say the same for Thayer’s amendment, but he at least wrapped it up in prettier packaging for the racing industry. Still, the horse crowd isn’t rushing to unwrap this present either, and with good reason.

Slots legislation passed by the House in June limits this form of gambling to the grounds of existing racetracks and one track that may be licensed later. Except for that one available license, the bill would have limited slots to locations where gambling already occurs on a near daily basis.

Under Thayer’s proposal one license would be auctioned off to the highest bidder in each of the seven counties with existing tracks. It’s conceivable tracks could be outbid for these licenses. That not only would expand the locations where legalized gambling occurs, it would also put the tracks in competition with other gambling venues in their own counties.

Kentucky needs a geographic expansion of its gambling options — if it involves destination resort casinos, some of which are owned by the tracks. That’s the best way to recapture the $500 million or so Kentuckians now gamble in other states each year. But slots halls competing with tracks within the same county? Uh, no.

In addition, implementation of Thayer’s plan simply takes too long for a signature Kentucky industry that is, as Ellis Park’s Ron Geary told lawmakers in March, “fading away, folks, before our very eyes.”

Assuming Thayer’s  amendment wins approval from state voters in November 2010, local option elections in those seven counties could push the start-up of slots operations well into 2011 or beyond. By then, the circuit that has provided Kentuckians year-round jobs for decades could resemble a half-circuit, if we’re lucky.

Not to mention the fact that the details of Thayer’s plan would be added to an antiquated constitution that hinders governance in a modern society because it already contains, like, 9,000 too many details. If this bombs, the fix can only be made with another amendment.

Kentucky racing being a “red” industry, the state’s horse farms traditionally have provided fertile ground for Republican fund-raising. But despite a wet growing season this year, word is that particular cash crop has dried up a bit because the Republican state Senate killed the slots bill passed by the House during the June special session. Neither of these proposals is apt to get those greenbacks blooming again.

Tied up with other duties all week. Hope to return to some level of normality next week.

Sunday’s column:

“Due to (Senate President David) Williams’ utter mismanagement, this (gambling) issue now pits Republicans against Republicans, not Republicans against Democrats, as he would have us believe,” Lane’s End Farm general manager Bill Farish wrote in a column published by the Herald-Leader in late September.

“Sadly, Williams seems less concerned about helping our (racing and breeding) industry and more concerned about maintaining control over his Senate fiefdom,” the son of former President George W. Bush’s ambassador to Great Britain added later in the piece.

Last week, Williams drew criticism from Louisville lawyer John David Dyche, author of the recently released Republican Leader: A Political Biography of Senator Mitch McConnell.

Williams’ “hard-line posture and strong-arm tactics on gambling are counterproductive,” Dyche wrote in The Courier-Journal, adding that “Williams has put several GOP legislators in difficult political positions.”

Of the two blows delivered to Williams by fellow Republicans, Dyche’s was perhaps the more telling. Farish, after all, has a stake in the push to keep Kentucky racetracks competitive with their counterparts in states where purses and breeding incentives are supplemented by revenue from alternative gambling. His displeasure with Williams’ obstructionism on this issue could be expected.

Dyche, on the other hand, is one of Kentucky’s better known Republican pundits who tends to reflect mainstream thinking in the party.

So, when he writes about the need for Republicans to “put gambling behind them — preferably by letting the public vote on a constitutional amendment,” you have to believe he’s speaking for a lot of like-minded Republicans. And you have to consider the possibility that pressure from within his own party might force Williams to allow a floor vote on gambling in 2010.

If it does, it likely would take the form of a constitutional amendment, perhaps sponsored by one or more of the Republican senators from horse country who have been put at risk by Williams’ current stance.

The thing is, though, a constitutional amendment on the 2010 ballot is the last thing Democrats should want if they’re truly committed to winning back control of the Senate.

With former state Rep. Robin Webb’s win in a special election for the 18th District seat formerly held by Republican Charlie Borders, Democrats have reduced the Republican Senate majority to 20-17, with one independent. They hope to whittle it down a bit more in another special election later this year, assuming Williams’ oft-voiced prediction that Majority Floor Leader Dan Kelly will get a judicial appointment comes true.

(Republican Rep. Jimmy Higdon has already filed papers with the Registry of Election Finance for a 2010 race in Kelly’s district. Democrat Jodie Haydon, a former state representative, also has filed with the Registry. So, both parties apparently believe Kelly will get a judgeship.)

If Democrats succeed in picking up Kelly’s seat, they would go into the 2010 elections — which will determine who controls the post-census redistricting — down to just 19-18-1 with a few Senate Republicans from horse country at risk because of their anti-gambling votes earlier this year and at least one Republican seat open due to the announced retirement of Sen. Gary Tapp.

Under those circumstances, Democrats would have to be politically brain dead to go along with putting an amendment on the ballot that would draw conservatives to the polls to vote against gambling. Better to just sit back and watch the Republican squabbling on the subject continue.

FRANKFORT — Call it vindication for the surviving spouses of the Comair Flight 5191 crash, mining disasters and other accidents who came to the Capitol in 2007 seeking to right a legal wrong, only to be rudely, insensitively, insultingly rebuffed by the Republican-controlled state Senate.

Call it an affirmation of those survivors’ recognition that Kentucky case law regarding loss of spousal companionship (consortium in legal language) in wrongful death cases turned reason on its head.

Most of all, call it justice at last. Not so much for those survivors who passionately and eloquently argued their case in the Capitol halls more than two years ago. (For instance, only one suit stemming from the Flight 5191 crash remains unsettled.) But justice for Kentucky’s future survivors whose lives are shattered when their wives and husbands die as the result of “a negligent or wrongful act” of a third party.

Since 1970, KRS 411:145 clearly has stated that surviving spouses can seek damages for loss of companionship in these cases. But Kentucky’s prevailing case law has disagreed, nonsensically allowing loss of companionship claims when a spouse is injured and survives but denying such claims when a spouse suffers a wrongful death.

Thursday, the Kentucky Supreme Court corrected this injustice by ruling that the statute means exactly what it says.

“The courts have been exhorted that ‘common sense must not be a stranger in the house of the law,’” Justice Mary Noble wrote in the unanimous opinion. ” … It defies common sense to put a value on such losses while a spouse is lying incapacitated, but to say the loss is worthless after death.”

Later in the opinion, Noble posed this question: “Can it reasonably be said that one whose spouse survives suffers more loss of consortium than one whose spouse dies?”

The answer, of course, is no, a resounding no. If anything, the loss is greater in instances of death.

As the opinion pointed out, the flawed logic of the prevailing case law — which traced its origins back to English common law — could cause people to make sure the victims of their negligent or wrongful acts do not survive “as only by instantly killing them can the (responsible party) be guaranteed to owe no loss of consortium damages. While this logically follows the common law rule, it is obviously absurd.”

Unaddressed in the opinion is an opposite absurdity that is of just as much concern for people who, like me, desperately want the plug pulled as soon as it’s evident they have slipped into a permanent vegetative state. Prior to Thursday, Kentucky law encouraged people to keep vegetative spouses alive if it meant they could collect loss of consortium damages, a prospect I find abhorrent.

While justice in this instance was delivered to Kentuckians through the wise ruling of a unanimous Supreme Court, I firmly believe credit also goes to those surviving spouses — of Flight 5191, of mine disasters, of other accidents — who brought their crusade to the halls of the Capitol back in 2007.

They brought the injustice of prior case law to the attention of the public. They started the conversation about its absurd consequences, a conversation that reached a proper conclusion Thursday in a case unrelated to any of their losses.

They struck me as heroes then. They still do.