Ted Simons: Good evening, and welcome to "Horizon," I'm Ted Simons. Joining me tonight are Mary Jo Pitzl of the "The Arizona Republic," Howard Fischer of "Capitol Media Services," and 2 Jim Small of the "Arizona Capitol Times." Senate Majority Leader Scott Bungaard in the headlines this week and for all the wrong reasons. Mary Jo, give us the background on this and we'll take it from there.
Mary Jo Pitzl: This started Friday night. Senator Bungaard, who's a Republican from Peoria, was in a charity dancing event. On the way home he got into an argument with his girlfriend. He was driving, she was the passenger. It turned into an altercation along the side of the Piestewa Freeway. Accounts vary. Different things were thrown out the window, her phone, his clothes, presumably dancing clothes. That led to a physical altercation which brought on police and brought charges of domestic violence. At the end of the day, perhaps Bungaard -- he disputes that but reports say he claimed legislative immunity from arrest. Let the police know that indeed he is a state senator, this'll get out, and just wanted them to know that. They handcuffed him and his girlfriend, they took her off. She did some time in jail, about 17 hours, and they un-handcuffed him and sent him home and then all hell broke loose.
Howard Fischer: The funny part is, that he insisted that he was just telling people that he was a lawmaker so they weren't just dealing with some monkey. He decided, if you're going to haul somebody off to jail it wasn't going to be him. That claim holds no water.
Ted Simons: Your looking at the police report, one of the arresting officers is suggesting that once the legislative session is over-go ahead-obviously that was a conversation point out there correct?
Jim Small: That's the recommendation from the officer who questioned Senator Bungaard. When the session's over, we need to pursue charges. I think the Phoenix Police Department has indicated that they are going to revisit this case and not just let it die. Once the session ends they are going to come back to it.
Mary Jo Pitzl: You wouldn't be having that conversation unless someone has raised the issue of immunity. That person appears to be the senator. There does seem to be a fair level of confusion down at the capital and elsewhere about, what is legislative immunity.
Mary Jo Pitzl: On the outside, the general public says, what do you mean, you get a get out of jail free card? But down at the capitol there's great confusion that it's something he even should have invoked. He said he will sponsor legislation to do away with it.
Howard Fischer: I've been at the capitol since â€˜82, and there have been maybe a dozen lawmakers over the years who have cited this section. Theoretically speaking, the idea is, you exempt people not from the crime, but from being arrested for minor crimes, being served with civil papers. The idea being that during the legislative session and right before you don't want to have somebody taken off and unable to vote and represent their constituents. It's now 100 years since we put that in the constitution. The question becomes, does it serve a purpose. 4 You know, it's not, again, as Mary Jo points out, it is not immunity, per se. It is immunity from civil process, immunity from being handcuffed, arrested and hauled off and jailed for minor crimes. Now, there is a category in there, and this is where it gets real interesting. It does not include crimes of breach of the peace. What's breach of the peace? If you're arguing in the median of the 51 you're probably breaching some peace there.
Ted Simons: We did have some law folks on here, Dan Bar was on the program and explained, it sounds like breach of peace, when you put a guy in handcuffs that's where you're going on that. Talk to us about this regarding the confusion. Sounds like a lot of folks think diplomatic immunity and legislative immunity are the same thing. There's some confusion there.
Jim Small: You hear that on TV, you know, popularized by crime dramas on television. But it's interesting, the breach of the peace thing. It seems like the Phoenix Police Department maybe erred on the side of caution, not wanting to violate this or not wanting to really kick this hornets' nest and say we arrested the state senator for a misdemeanor. Several years ago, there was a state senator who was arrested for a domestic violence incident and went to jail. He never said, I'm a legislator like Senator Bungaard apparently did, he got arrested and went to jail. He got out the next day, 17 or 18 hours in jail. There is kind of an interesting comparison with that. 5
Ted Simons: How much damage to Bungaard's political future?
Howard Fischer: Political future? Maybe that's the question. I'm not sure how you dig out of this. The problem is that, you know, what's the old saying, when you're in a hole, stop digging? On Saturday we got a press release from his publicist, then we got a press release from her publicist, and then we got a joint press release on Sunday, saying we wish each other well. Then the floor speech and the radio interviews where he's only digging deeper and the conflicts between what he's saying in the police report. The good news for him, it's another year and a half until the election and maybe people will forget, but this is really bad. We're talking about something people understand. Domestic violence, fight on the freeway.
Mary Jo Pitzl: And in the more immediate term, he is the number two guy in the Senate, he is elected by his fellow Republicans. There doesn't seem to be any move to remove him from the position of majority leader, but that could change. Democrats have been mulling over, is there anything that can be brought before the Senate ethics committee.
Ted Simons: Russell Pearce, Senate President, calls Bungaard a victim.
Mary Jo Pitzl: Yes, that's what the president said the other day. Then he sort of walked it back in another interview, saying he didn't want to throw anybody out under the bus and he was going to try to stay above it. His initial comments were that the 6 police were wrong, surprising for a law and order guy like Pearce, who comes from a police background himself and he sees him as a victim.
Ted Simons: Let's continue on the Pearce topic here. Howie, the idea of restricting press conferences inside. No more using any old hearing room now? What's going on here?
Howard Fischer: Well, no. The issue is, lawmakers can still have press conferences. In fact, lawmakers can invite others who are not legislators to participate in the press conference. The issue is, who can be in the audience. What's happened, particularly for the Democrats, they will invite a little crowd to watch a video and look at something, and they will cheer and clap. And Russell said that there's potential security problems there. This is obviously an outgrowth of the whole issue from the week before with the crowd on the immigration bill, who's coming in. What's fascinating, though, these are the very same hearing rooms open to the public for any other hearing. You have a funny situation, I can go into Senate Hearing Room 1, listen to the hearing. When they have a press conference, I have to leave and then come back later. The other part of the question is, as the media changes, what is a reporter? What does a reporter look like? If you write for an online publication are you a reporter? The White House is letting in bloggers to their press 7 conferences. So, who then is a reporter?
Mary Jo Pitzl: The White House doesn't let the general public in. If I was touring the White House I couldn't pop in for a news conference. It's not unheard of to bar the public or to not allow them to attend news conferences.
Ted Simons: But the norm down there, did it use to be the norm? I'm hearing the norm used to be outside somewhere, now it's all over the place.
Jim Small: Typically press conferences have been outside. But that's not an exclusivity by any means. Especially as the session drags on, it gets hot by 10:00 in the morning, so you have a lot of people who have press conferences inside. They built a press conference room in the Senate.
Howard Fischer: What's even worse, they kicked the media out of the press room to build a press conference room that they don't use.
Howard Fischer: Here's the other thing. Some of this is for television, the copper dome in the background looks real good as opposed to three white lawmakers standing in front of a podium. Press conferences are for our convenience. I appreciate what Mary Jo was saying. It's still down to the fact that unlike the White House, these are public buildings; these are public hearing rooms that you can wander into at any time.
Ted Simons: Let's keep that particular train of thought going as we try to figure out if there's a list of people banned from this one particular public building. I keep hearing no, there's no ban. 8 And yet, the Senate President says, if you're on that list, by the way, come to me. What is that?
Howard Fishcer: This gets even better than that. This was the outgrowth of what had happened more than a week ago, the demonstrations in the overflow hearing room. It resulted when Salvador Resa came back to meet with Steve Gallardo to say, I'm sorry, you have to leave, you've been banned.
Hoawrd Fischer: who said I've been banned?
Howard Fischer: The president says you've been banned. We know he didn't leave and we all know he was arrested.
Howard Fischer: Here's where it gets interesting. The question of the list. The media said, where is the list. Russell insisted he never asked for them to be banned, that he said, go to the police report. His chief of security said in a sworn affidavit, Mr. Pearce told me to go down to the overflow room, find out who the leader is, photograph him, identify him and ban that person. Even then, none of this matches.
Ted Simons: Is it lawful to permanently ban someone from the state Senate building? Do we know?
Mary Jo Pitzl: I don't know if it's lawful. I think there is the broader question, though, of the appearance of the politics of it. I mean, it is a public building and the people's house. For Arizona this has been -- as long as I've been running around the state there haven't been bans. You don't see that happening over in the House, which has far more people that reside there. They just don't have Russell 9 Pearce.
Howard Fischer: The issue is -- back to your question: Can he ban someone? From Russell Pearce's perspective he can do anything he darn well pleases. He was the one who said, senator's can bring guns into the building. It's my building, I'm the chief administrator, and I can do whatever he wants.
Howard Fischer: I don't know that another branch of government is prepared to tell the Senate President what he can do in his building. So, if it comes to a lawsuit, he can do it. From a pure political perspective, do you really want an enemies list?
Ted Simons: Jim, what are you hearing as far as other lawmakers? How are they responding to this? Are they just kind of standing back and letting it all happen?
Jim Small: I think most people are keeping their heads down on this. You've got someone in President Pearce who is willing to take slings and arrows and has been for years and this is no different. I'd be surprised if we really see much of a push from Republicans especially, Democrats are going to complain about it and they have been. But whether the Republicans, any of them, decide to step up on this, I find that doubtful.
Howard Fischer: Russell Pierce says there's no list. But if you have been banned by some unknown entity, you come to me to get unbanned.
Mary Jo Pitzl: How can you come to him if you can't get in the building?
Howard Fischer: I've never thought of that. I like that as a thought.
Ted Simons: That's a brain twister. That's what that is.
Ted Simons: Speaking of a brain twister, the idea that the State of Arizona can go ahead and see a federal law or federal action and decide, a group of 12 or whatever, and tell the state Legislature that we recommend this is not -- this is a 10 nullification of federal law. This thing's got legs to it, doesn't it?
Mary Jo Pitzl: It was killed earlier in the Senate on a 12-18 vote. The sponsor, Senator Lori Cline, was able to bring it back up for reconsideration. The decision to bring it up for another vote happened yesterday. Sometime in the near future, the Senate will sit down and revisit this issue. It may not be dead yet, it may very much have legs.
Howard Fischer: And the fact is that the sponsor is -- shall we say, misinterpreting her own legislation? I think her intent is, this is Senator Lori Cline from Anthem, her intent is to say, there's a federal law that we question, we want to expedite a process through the U.S. Supreme Court to review it. Assuming the U.S. Supreme Court decides to take what Arizona asks them and immediately expedite it. But if you look at the legislation, it says the moment the legislature, a simple majority, says this is a void law, you, as an Arizonan, are not required to obey any federal law, mandate, resolution, recommendation, executive order.
Ted Simons: The word is you are not obligated to do that.
Howard Fischer: I want to be the person, if they say the legislature says the federal income tax is void. I'm not sure I want to be the test case for saying, excuse me, Russell Pearce said I don't have to pay your tax.
Ted Simons: This thing had died, now revived a little bit.
Ted Simons: How far does something like this go?
Jim Small: I'm not sure, if they put this up for another vote, that it passes again. One of my colleagues was over there yesterday when they did this. There are still four Republicans who voted against the reconsideration. They were, but they told him, 11 no, I'm still voting no on the bill when it comes up again. You still have a large enough contingent of Republicans to kill this bill.
Ted Simons: Quickly before we move on to ACCCHS, we've got a gun bill passing as well, going after clean elections, as well. Along with something like nullification, along with the state gun, along with all sorts of other things. What's going to happen in the House? What's going to happen with the Governor?
Howard Fischer: Well, that's the $64,000 question. Because the senators seem quite content, sure, I can safely vote for this. We'll throw it into Kirk Adams' house and let him figure it out. There are plenty of Republicans there that can lose. Nine Republicans can still pass this. But the question becomes what does Kirk think? On one hand, Kirk is not of the same ilk in terms of wanting to challenge everything. On the other hand, he'd like to run for Congress, and given who votes in the primary, this tends to be the far-right wing of the party. Then there's the question of the governor. The Governor may not want to it come to her, but Kirk may not be willing to fall on his sword to keep it from going to her. She loves challenging the federal government. How far does she want to go on this? The 14th Amendment, does she want to go ahead and sign a bill saying we want to nullify federal law? It's one thing to challenge Obamacare in court, it's another thing to say, we are sovereign and we get to overrule federal law.
Ted Simons: Speaking of the Governor, considering now a freeze as far as ACCCHS is concerned? How does that differ from what's out there already?
Mary Jo Pitzl: The freeze is sort of a precursor to removing 280,000 people from the ACCCHS rolls. You've got to have a phase-down or phase-in plan. As of April 1, that puts people on notice that, we're not 12 going to let more people into the program, it let's you start to dial that down.
Ted Simons: That sounds as unconstitutional as everything else, if you're messing around with an initiative, isn't it?
Jim Small: Under federal Medicare law, you have to do this plan. Six months before you enact cuts for the budget, it puts you back at the beginning of April. You have to enter into this phase-down plan. Proposition 204 that voters approved here about a decade ago. That's going to be the big issue. They cleared one hurdle with the Feds and they got permission from there but whatever they do is still going to be challenged in the court. We've spoken with the attorneys who've said look were working on this right now, were getting plaintiffs.
Ted Simons: Sounds like Tim Hogan's already -- yeah.
Howard Fischer: Not even Tim Hogan, the whole healthy Arizona crew that pushed this. The first person to walk into a DES office, because DES does the screening, to be told yes, you would normally qualify for ACCCHS, but now you don't, that becomes the plaintiff. It's going to happen.
Ted Simons: The idea of the Governor meeting with Kathleen Sebelius and the HHS director and the idea of maybe requiring copays and not allowing taxi service and these sorts of things. Imposing a fee if you don't show up for an appointment. Is that going to make that much of a difference?
Mary Jo Pitzl: The government has proposed ways to bring these small, small little cuts. If you believe the numbers, like Representative Karl Seal held a news conference yesterday and said if we could get people not to take taxicabs to their appointments, we could save the state $15 million. We're talking about $541 million, so up against that, $15 million, that might get you some transplants covered, but it's not going to save the program.
Jim Small: I've talked to folks about that very issue. On the administration side you would end up costing them money. Even if you saved the $15 million, you're paying for the 13 taxicab fare, having to go through paperwork and make sure everything is copasetic is an administrative burden.
Howard Fischer: There is something to be said for certain hurdles whether you want to call them copays or deductibles or things like that. Not so much that the $10 copay by itself makes a difference, but if it's $30 to go to the E.R. versus $10 dollars to go to a doctor, people overuse the E.R. now, and I'm not just talking about AHCCCS, I'm talking about private insurance. If there's no disincentive to use the most expensive, use the most expensive because it's open at three in the morning.
Ted Simons: Between what we've seen now with HHS trying to work with the governor, the governor actually saying, we're trying to do the best we can to nullify these cuts? Are we seeing a little bit of compromise here? Are we seeing people working together on this issue?
Mary Jo Pitzl: I think you've got some stuff coming behind the scenes. You've got the provider community here in Arizona still talking about a way to bring on a provider tax which had been proposed last month, and lawmakers rejected it. That idea is not dead yet. I think they are meeting with the Governor next week to talk about a way to maybe not have to make such a Draconian move.
Howard Fischer: On the other side of the equation, talk about the president trying to have a proposal meeting with the National Governor's Association last week saying, look, the original healthcare law, Obama-care, had a provision that in the beginning of 2017 you could opt out and do something else. Well he says I'll move it back to 2014.
Howard Fischer: The problem is, if you look at his big offer, it says, you can opt out, but you have to cover just as many people, and you have to go ahead and do it in a way that your not asking for federal money, so how much of a compromise that is, I'm not sure.
Ted Simons: It seems relatively encouraging the folks are talking and they're not constantly yelling and shouting.