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When Legislators Behave Badly—What Should Be Done?

Twenty-two different people have told the Attorney General that Republican State Representative Jeremy Durham engaged in various kinds of sexual innuendo and relations with them. He has suspended his campaign but has chosen not to resign. What should be done?

Sounds like a question with an easy answer, but it’s not as easy as it looks. Here are some of my thoughts based on twenty-two years in state politics, which included the “pleasure” of serving in office when legislative colleagues were indicted and the “pleasure” of holding a “trial” to expel a colleague only to be sued in federal court for doing so. But before I share those thoughts, let me be clear; I’m not defending Rep. Durham or the conduct he’s been accused of or whatever conduct he has actually engaged in. In fact, given everything, if I were him, I would resign, but that’s not where we are.

Should the Legislature remove him?

This is a bit tricky because to say “no” is to risk being accused of winking at the behavior of which Rep. Durham’s been accused or condoning his behavior. But I would say in this particular case, “Go slowly because the precedent you set could prove problematic.”

Politics can be a dirty business. Power is a great temptation. People will say all kinds of things about others, particularly when not under oath, in order to remove them from power or ascend to a place of power. Accusations do not always prove to be actualities.

Until yesterday, when Rep. Durham admitted that he made some of the statements he was accused of, the Legislature had only unsworn allegations to go on. Of course, it’s fine if the Legislature wants to make its own determinations of guilt and innocence based on unsworn “he said, she said” allegations and denials, but the members may find themselves spending more time on expulsion proceedings than on legislative matters if they start down that path.

Rep. Durham’s admission would ameliorate the potential precedent for incessant “witch-hunts,” but current legislators have a practical issue to consider. While removing Rep. Durham from office now would make a “statement,” the Legislature is adjourned until next January. If the voters don’t re-elect him on August 4th, then should the Legislature be called back into session for some unforeseen reason, his primary opponent would take office anyway. Removing him now will not affect his ability to take office in January if the voters should re-elect him. And that leads to a final consideration.

Were Rep. Durham’s term not at an end as a practical matter, then the Legislature would need to pursue what the investigation has uncovered. But voters start going to the polls today, and they can serve as their own jury. After all, the power of that office in our system of civil government belongs to them. And that brings up my final observation.

One of my associates shared with me a recent commentary in which the author said we have the kind of politicians and laws we have because we, as a people, allow it. If that’s true, and it largely is, then all I can say is “Ouch! Who is going to hold us accountable?”

We can begin to hold ourselves accountable by voting wisely this election cycle. We hope TNVoterGuide.org will help you do that.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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It’s Not Business as Usual, Governor, and Never Really Was

President Obama’s “guidance letter” asserting the U.S. Department of Education’s view that the word “sex” in Title IX includes gender identity has caused a firestorm in Tennessee. Gov. Haslam issued a rather tepid statement on Monday to which some legislators responded with the idea of a special session. The Governor’s response to that idea was, “Just exactly what are we trying to do, because currently no one is being sued?” Well, that’s not necessarily true anymore. So what’s next?

The Governor’s statement is not necessarily true anymore, because yesterday the Obama administration’s non-governmental enforcement arm, the ACLU, filed a complaint with the U.S. Department of Education asking it to investigate Sumner County’s school system for violations of Title IX. Why? Because it does not allow a boy who identifies as a girl to use the girl’s bathroom. And what does the ACLU cite as grounds for this Title IX violation? The Obama “guidance letter,” of course.

The Governor had previously said that “there’s nothing new” in the “guidance letter” and that schools should just keep on doing what they were doing. Well, obviously, the ACLU had a different interpretation of the Obama “guidance letter,” as did most legislators who were asking him to make it clear that the state would back up the local schools if they were sued.

Well, the Governor grossly miscalculated—not just because of the complaint filed yesterday, but because there has, indeed, been “something new” since the day the Obama letter was issued.

The “something new” that the Governor overlooked is that, as of last Friday, school districts had another factor to add into their locker room shower policy deliberations: “What do we make of the Obama ‘guidance letter’? Might an enforcement action follow? Will the ACLU use the ‘guidance letter’ as leverage in the threat of a lawsuit if we don’t let boys in the girl’s locker room shower?”

The reference in the “guidance letter” to the “condition” upon which schools take Title IX money was a shot across the bow of every school system in the state. The potential of losing perhaps hundreds of thousands of dollars cannot be ignored by local schools as easily as the Governor seemed to think.

School boards needed to know if the state was going to “have their back” if they continued to designate bathrooms and locker room showers based on biology rather than psychology and the feds or the ACLU came after them. The Governor did not ever say that, and that is why some legislators started talking about a special session.

Legislators, naturally protective of their local school systems, wondered what would happen if the feds began an enforcement action against their school. Would the state step in and defend them? Sure didn’t sound like it based on what was coming out of the Governor’s office and the office of the Attorney General.

Legislators knew that if the state was not willing to take on the federal government, then local school districts would be sitting ducks. And yesterday the ACLU, as should have been expected, fired a shot at the “duck” swimming in Sumner County.

That complaint, though, was why a growing number of legislators were talking about a special session prior to yesterday—to provide the kind of leadership that had been missing, to let their local school boards know they can keep doing what they are doing with the confidence that the state “has their back” if they do and they won’t fight alone.

Of course, that was the thinking before yesterday. Now, with the complaint going before the Obama administration and not an “independent” federal judge, can anyone really doubt that the Department of Education will not find a violation of federal law? For goodness sakes, they just sued North Carolina for the same thing Sumner County is doing!

Real leadership would put a stop to a foregone conclusion type of investigation by finding a way to sue the Department of Education. And if we were smart, we’d sue in the more friendly confines of the federal district court in East Tennessee.

If that means we need a new law to ensure such a suit can be brought, then so be it. It’s time for some real leadership and maybe the Legislature can provide it.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Medicaid Expansion: Two Issues Legislators Should Consider

This week the Governor put the question of expanding the traditional Medicaid program squarely on the table for our legislators to debate next month. He is asking for a special session of the legislature to focus on this one issue. I applaud the heart behind his proposal, but as we apply our heads to it, I’d like to suggest we debate some things beyond just the elements of the proposal itself.

The proposal, as I understand it, is an attempt to provide health insurance coverage to what we might call the “working poor.” While we can debate the difference between absolute and relative poverty, at least we are not talking about something that’s purely a “hand out.”

Those who would be covered would be earning some income, so they are in the workforce. And the proposal would try to put those to whom it would apply into the private sector insurance market and require some element of co-pays for services. Those elements are commendable.

It is also commendable that Gov. Haslam has a heart for those who are economically challenged and may struggle with affording some basic level of health care. It is “morally right,” to use an expression the Governor used, to care about the well-being of our fellow citizens.

But if all the legislature debates is whether it is “morally right” to care for our fellow citizens and the “mechanics” of the proposal, it will miss the opportunity to have a much-needed debate at a much deeper level than we’ve had in our state and nation in a long time. Let me suggest just two fundamental matters that should be debated.

The first major issue we’ve ignored since the New Deal, if not before, is to whom the moral duty to care for our neighbor falls in a civil society made up of individuals, families, private associations, and civil government. Historically, we have said it was the moral responsibility of individuals, families, and private associations.

For instance, years ago, in my hometown of Chattanooga, individuals and their families who saw a need to care for those with physical and mental challenges came together and out of their own resources established two wonderful institutions that still exist, Siskin Hospital and Orange Grove. You may know of such organizations in your own community.

If we stop to think about it, care for the poor is essentially an act of either mercy or grace. Civil government is an instrument of law. Are we willing to debate whether an instrument of law can be an effective instrument of mercy or grace without eventually destroying both law and mercy and grace?

Under the guise of grace and mercy, law can become an instrument of injustice by taking from some to give to others. Respect for the law is lost and then law becomes an instrument of plunder, not protection. Of course, taking from some to give to others might help the other person in the short run, but it will not make the person from whom money is taken gracious or merciful. In fact, it might just make them resentful and more callous toward the poor, hurting them in the long run.

Lastly, even if we are not willing to reopen debate on this issue, there is the issue of debt. If we’re going to talk about what is morally right, then we must talk about the fact that our federal government is printing and borrowing money it doesn’t really have to pay for this expansion.

So the question for debate is whether it is morally right for our state to be part of expanding a federal debt. In asking this question, I’m thinking of two things Solomon said. First, that a good man leaves an inheritance to his children’s children (Proverbs 13:22), and second that the borrower is the slave of the lender (Proverbs 22:7).

We will leave an inheritance to our children’s children; the only question in this regard is whether it is morally right to leave them an inheritance of even greater debt with its corresponding loss of freedom.

There are other issues that come to mind, but if our legislators will take up just these two issues, we will be better served. It might even make a special session really special.

Related Video:

David Fowler Explains the Future of Medicaid Expansion


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Does a Politician’s Christianity Really Matter?

Because I have been a state senator and now lead a state organization dedicated to promoting public policies that respect God’s design for marriage and family, life, and religious liberty, I talk to a lot of state politicians and political candidates, particularly at election time. Therefore, it’s not surprising that most who talk to me this time of year are professing Christians. But a conversation I had the other day raised a question about the extent to which one’s Christianity matters.

Many who know me would be surprised to hear such a statement coming from my lips. I don’t say it because a person’s character or the basis for his or her understanding of right and wrong doesn’t matter to me. It matters a lot. But that’s not enough.

I say this because being a Christian doesn’t mean that the candidate for office understands anything about how our form of government is supposed to work. We would not hire a person to handle our finances, run our businesses, treat our illnesses, or do much of anything else simply because they said they were a Christian, even one we might call “devout.”

As a case in point, I spoke with a candidate for office the other day that, based on what I know, I would fully expect to see in the eternal presence of God. But the first thing out of the person’s mouth set off alarm bells for me and required a quick tutorial in the doctrine of separation of powers.

This person, whom I respect, mentioned that when it came to abortion I probably had more trust in the legislature to handle the issue correctly, the implication being that maybe the judiciary was either more trustworthy or better able to balance this sensitive issue. I quickly assured this person that I didn’t trust the legislature either and that, in my case, my distrust was based on real-life experience.

Then I explained that the issue wasn’t about the branch of government in which we should put more trust to make abortion policy, but to which branch of government the enactment of public policy had been entrusted under our state and federal constitutions.

There is only one real, right answer to that question: the legislature. And we’re in the mess we’re in today because, in part, both our politicians and a solid majority of Americans have apparently forgotten that. We only care about whether we get the result—the policy—we want.

That’s the only reason I can think of to explain why Congress and voters aren’t throwing out members of Congress right and left for not impeaching a President (and any President) who essentially keeps enacting or changing the law through executive orders and impeaching activist judges who violate the Constitution by twisting its words and by encroaching upon the legislature’s constitutional prerogatives.

Fortunately, at least for this one candidate, I think my little “refresher course” on constitutional government set things rights. But my point is that candidates who don’t understand our form of government and their responsibilities under that form of government aren’t the type I’m looking for, no matter how often they are in church or how personally holy they are.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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The ‘New’ Haslam-Ramsey Campaign

It was this time four years ago that Mayor Bill Haslam, now the governor, and Lt. Gov. Ron Ramsey, who was also lieutenant governor back then, were campaigning against each other. Now they seem to be on opposite sides of another campaign. And the campaign may just help you decide how to vote on a critical matter in November.

The campaign I’m speaking of is actually two intertwined campaigns. Gov. Haslam and Lt. Gov. Ramsey both support Amendment 2 to the state’s constitution. Haslam is spearheading a campaign to pass Amendment 2. Ramsey, on the other hand, is spearheading another campaign that bears on the pros and cons of Amendment 2. Haslam says Ramsey will “muddy the waters” in connection with his campaign for Amendment 2.

So what is Amendment 2 and what are these “campaigns” about, on which two of our state’s top political leaders seem to differ? Amendment 2 will determine how we decide who will sit on our state’s Supreme Court. The two campaigns highlight different ways Amendment 2 can be viewed by voters.

The Facts about Amendment 2

The language in our state constitution that would be changed by the amendment currently says the judges of the Supreme Court “shall be elected by the qualified voters of the state.” Of course, we’ve not had contested Supreme Court elections in years. Instead, the governor appoints someone to the court and then, at the next election, that person runs unopposed in a yes-no retention election.

Amendment 2 would modify the current appointment-retention election system to add some accountability on the front end of the appointment process by giving the legislature the authority within a certain period of time to reject a gubernatorial nominee. That is certainly an improvement over the current process.

The Voters’ Choices

Now, if a person wants to have contested Supreme Court elections, he or she should vote against the amendment and hope that legislators will assume a “no” vote means voters want contested elections. However, there’s no guarantee a majority of them will think that way. After personally fighting over this issue at the state Capitol for 20 years, I can assure you that many legislators who support Amendment 2 will fight hard against any legislative proposal for contested elections.

But I suspect there will be a number of voters who fall into a “middle” group—some will not want to trust the legislature to return to contested elections, and some will want to avoid contested elections. So what do they do?

The Determinative Issue

These voters will have to decide whether there should be some form of judicial accountability after the governor and the legislature agree to put someone on the court. If the answer is “yes,” then the version of accountability Amendment 2 offers voters is a yes-no judicial retention election. These voters must, therefore, determine whether retention elections can provide the kind of accountability they want.

That is where Ramsey’s “campaign” and Haslam’s concerns about it get interesting.

Ramsey is raising money (on his own time) and making presentations to different organizations to convince voters not to retain the three Supreme Court judges that will be up for a retention vote in August. According to statements made to various media outlets, Ramsey thinks that campaigning against a judge’s retention is a perfectly fine thing to do.

In fact, Ramsey thinks the campaign can demonstrate to voters that retention elections can be an effective means of judicial accountability. That, he thinks, will help Haslam’s campaign to pass the amendment.

But the Governor apparently disagrees. He thinks Ramsey’s campaign muddies the water by injecting into the judiciary the “politics” that he hopes to avoid with the approval of an appointment-retention election.

And therein lies the rub. Are retention elections supposed to be meaningful or simply “for show?”

Perhaps the best way for voters to let Haslam and Ramsey know which side of this question they are on come November will be whether they vote to retain or reject the judges up for “election” in August.  Kicking these judges off the bench should send a clear message to our state’s politicians that voters want some kind of meaningful ongoing judicial accountability.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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