A great explanation of the Missouri cloning money trail

A fellow who reads this blog emailed me a response he wrote to help a friend of his answer a very good question that I'm not sure I fully understood until tonight: It is really true that Amendment 2 will cause public money to be used for embryonic stem cell and cloning research? The answer is "yes," but of course, it's a convoluted "yes." Assuming that he forwarded this to me to share with the world, I'm posting it here with only minor edits:

The Question:
----- Original Message -----
From: XXXXXXXXXXXXXXX
To: XXXXXXXXXXXXXX
Sent: Tuesday, October 17, 2006 6:51 PM
Subject: Stem Cell Question
Hey XXXXXXX, I was having a debate on the Stem Cell amendment at work, trying to convince a few people that there are both moral and political reasons to vote no. As they are both for scientific advancement, they don’t care so much about the moral implications, but they were intrigued by the public funds being used for private profit argument. But then they did their own research and found this.

YES on 2 also makes good economic sense for our state. Amendment 2 does not ask for or require state funding for any type of stem cell research. In fact, it will generate new state revenues and quality jobs by ensuring that Missouri medical institutions can keep and attract private funding for stem cell research. In addition, the development of stem cell cures for costly diseases like diabetes would significantly reduce health care costs for patients – and help reduce taxpayer-funded Medicaid costs.

This info came from the link below.http://www.missouricures.com/facts.php

Is there any good way to prove that this site is lying? Now they think the info I’ve been providing is false. I can do my own digging, but since you’ve been so involved in the effort I thought you were a good person to contact.

Thanks,

XXXXXXXXXX. . . . . . . .

The Answer:
----- Original Message -----
From: XXXXXXXXXXXXXXX
To: XXXXXXXXXXXXXX
Sent: Tuesday, October 17, 2006 9:45 PM
Subject: RE: Stem Cell Question

An excellent question you ask about public funding for Embryonic Stem Cell and cloning research! The answer is a little lengthy and convoluted, and few people (outside of those who negotiate economic incentives for a living, and lawyers and professors who play sophistical games with language) really understand how the bad guys will exploit the system. I hope you don't mind that I'm going to answer your question anonymously and forward it to a blogger or two that I know for wider circulation.

Before you read all this, print out the actual amendment language which I've attached. [CLICK HERE TO GET IT] Note that this is NOT the ballot language you'll see in November; the general public is too stupid (think the bad guys), to read and vote on the actual amendment language. The ballot contains just a "plain language" gloss on this operative language--and a convenient one that allows the bad guys and their allies in the Secretary of State's office to add and the judiciary to maintain another layer of obfuscation. For our purposes, we need to look at the real amendment language.

The whole amendment is just a big dirty lawyer's trick, of course. Most obviously, they've redefined "cloning" from the generally accepted scientific definition to a new one that excludes Somatic Cell Nuclear Transfer (SCNT), the method by which other mammals, including Dolly the sheep, are cloned, and the method of cloning human beings, who, if not killed for medical experiments within a few weeks of creation, would develop as babies that are genetically identical to the donors of the cell nuclei). In the real world, words mean what they mean. In politics, words have no meaning at all. But in legal documents (legislation and contracts), words can mean whatever the drafter wants them to mean, because it's a closed system in which the drafter controls the definitions.

Now, to your answer: you must start by saying that on its face, the Amendment does not call for the direct allocation of public funds for the research. But this is another dirty lawyer's trick.

First, see Section 38(d)2(7). This section seems like it's saying that embryonic stem cell (ESC) and cloning researchers must follow state and local laws of general applicability. But the requirement that anyone follow generally applicable law is always presumed, and it's not necessary to state that in a constitutional amendment, is it? The real purpose for this section is found in the phrase "...to the extent that any such laws do not (i) prevent, restrict, obstruct or discourage any stem cell research or stem cell therapies and cures . . . or (ii) create disincentives for any person to engage in or otherwise associate with such research or therapies and cures."

The real effect of this section is to exempt ESC and cloning researchers from laws of general applicability if (i.e., "to the extent that") such laws inhibit their research. How far does this go? If there is a state regulation that recognized parental ownership of frozen embryos stored at fertility clinics (a tragedy in itself), and dictates that the embryos cannot be intentionally destroyed or otherwise used without the parents' permission, then, well, that is a generally applicable law. But if that generally applicable restriction on use of other people's embryos is determined to "obstruct or discourage" ESC research, the ESC researchers are exempt from it. The amendment would let the researchers go in and simply commandeer the embryos without parental permission (but it would prohibit the researchers from compensating the parents for their loss, of course). If there are laws to protect patient safety or privacy, but those laws tend to "obstruct or discourage" ESC and cloning research, then the ESC and cloning researchers are exempt from them. Taken to an extreme, if there are state laws against using human tissues (e.g., a woman's ova) for research without the donor's informed consent, ESC and cloning researchers would be exempt from those laws if they could show it obstructs or discourages ESC and cloning research. Likewise, if there are state laws prohibiting public funds from being used in ESC and cloning research (and there are, under the Missouri Department of Economic Development and the Missouri Development Finance Board regulations, as we recently learned), those regulations are invalidated "to the extent that" they "prevent, restrict, obstruct or discourage" ESC and cloning research, which, of course, they do!

Now let's look at Section 38(b)5. This Section is even more straightforward in facilitating public funding of ESC and cloning research. It doesn't directly appropriate money, of course. But as you may know, there are a gazillion ways to divert public money to private purposes. At the local level, companies with policital clout (or who hire lawyers and consultants with political clout) can divert property taxes, sales taxes, and earnings taxes generated by their activities from the public coffers back into their own pockets. The programs to do this are myriad: Chapter 100 plans, Chapter 353 plans, Tax Increment Financing plans, Industrial Revenue Bonds, LCRA programs, etc., etc. At the state level, additional programs like the "Missouri Quality Jobs" program, state-level tax increment financing plans, state economic development grants, and other jobs training programs can result in diversion of tax revenues from the public coffers back into private hands. Some of these programs are "entitlements"; i.e., if you meet the qualifications, you get the money. Others of these programs, like TIF financing, are discretionary: city or state officials ultimately make a policy decision to approve or deny public funding under the program for any reason or no reason. Ordinarily, local and state governments are cautious in granting incentives like TIF financing, and they reserve that financing only for what they, as the policy-makers, deem to be the most worthwhile projects for their community.

Knowing that, now read Section 38(b)5, and you can see what they're getting at:

To ensure that no governmental body or official arbitrarily restricts funds designated for purposes other than stem cell research or stem cell therapies and cures as a means of inhibiting lawful stem cell research or stem cell therapies and cures, no state or local governmental body or official shall eliminate, reduce, deny, or withhold any public funds provided or eligible to be provided to a person that (i) lawfully conducts stem cell research or provides stem cell therapies and cures, allows for such research or therpies and cures to be conducted or provided on its premises, or is otherwise associated with such research or therpies and cures . . . on account of, or otherwise for the purpose of creating disincentives for any person to engage in or otherwise associate with, or preventing, restricting, obstructing, or discouraging, such stem cell-related activities.

What does this mean? This means that if a ESC and cloning research group applies for public money through one of these economic incentive packages, and they meet the bare objective qualifications for the program, they cannot be denied funding under a program (even if it's a discretionary program). If you're on the Booneville City Council and someone comes to you with a request for TIF assistance on their new hotel or Best Buy store or widget factory, you have some discretion. You get to decide whether the hotel or store or factory is so important to the City of Booneville that it's worth diverting tax dollars to construct it. But if Cloneandkill, Inc., applies for TIF financing on a new lab to be built in Booneville (yes, in Booneville), then so long as they meet the bare minimum requirements, it would seem that you, as a government official, would not have any discretion: you may not "eliminate, reduce, deny or withhold any public funds" from Cloneandkill. Cloneandkill and allied companies, foundations, and universities get better, rubber-stamp treatment of their scientifically dubious and morally heinous ESC projects than any other sort of commercial or scientific endeavor. If they don't get every cent of "corporate welfare" that they request, instead of negotiating with the city or the state as ordinary applicants would, they can simply go to court and argue that the denial is unconstitutional.

So you can see (I hope) that the door to funding is opened wide by Amendment 2, and thanks to Section 38(c)7, which I won't retype here, the door can't be closed, except by repeal of the amendment. The two sections I discussed above don't expressly appropriate money to the ESC crowd (unlike California, where the Clone-and-Kill referendum did expressly appropriate many millions of taxpayer dollars), but they do make it almost impossible to refuse the ESC crowd any opportunity to dip into the public trough.