Bait and Switch

Subverting the Public’s Right to be Heard

You’ve heard of the fraudulent merchandising practice called bait-and-switch. A retailer lures in customers by advertising a product at a low price and then tells customers that the advertised product is not available but you can buy a substitute at a higher price. Bait-and-switch is also a political term used to describe how bills can be passed while avoiding required public discussion. A bill is proposed (the bait) with the ultimate objective of substantially changing the wording at a later time. The original bill is scheduled for a hearing to meet legal requirements for public notice and discussion. A substitute bill is later submitted (the switch), thus bypassing the objective of public discussion on the real language proposed. While the bait-and-switch trick is technically legal, it is ethically and morally reprehensible, because the political objective is to get legislation or rules passed without anticipated negative community review.

That is exactly what happened at the public hearing I attended last Tuesday on SB869 in the Capitol in Jefferson City. The original bill was noticed for public hearing. I prepared written and oral testimony based upon the version of the bill which was advertised in the public hearing notice. When Senator Wes Shoemyer was called upon to introduce his bill, he announced that he was submitting a substitute bill. The substitute was distributed only to the committee members at the hearing. Since the public had no access to the substitute, they could not be prepared to testify about the provisions under consideration by the committee.

Senator Shoemyer then introduced me to testify in support of his substitute. I was stunned to be called as a witness on a bill I had never had the opportunity to review. I explained to the committee that I felt placed in an awkward position by being called to testify in favor of a bill I had never seen. I further explained that I was not given an opportunity to review the sub and I wasn’t prepared to testify concerning language I had not reviewed.

Blind-sided by the bait-and-switch, I told the committee I had come to testify concerning the original SB869, which only proposed the removal of five words-"within the past fifteen years"- from the bail statutes. Those five little words became known as the Lee Clause after SB1122 passed in 2004. The Lee Clause became law after bondsman Virgil Lee Jackson lobbied for a change in the statutes so he could obtain his general bail bond license. Jackson was an 8-time convicted felon and was unable to get a general bail license. Jackson and others hired lobbyist Steve Carroll and successfully added the 15-year clause allowing convicted felons to be licensed as long as the conviction was over 15 years old. The provision was hidden deep in a huge bill entitled "Dentistry" and passed in final days of session. The 15-year look-back was dubbed the “Lee Clause” since it was specifically crafted to allow Jackson to obtain his general license.

I explained to the committee how the courts have routinely held that the State of Missouri is placing its “seal of approval” upon an individual when it grants a state-issued professional license. The public can then have faith and confidence in the licensee because he/she has obtained this approval. I detailed Jackson’s criminal past and how he was granted a bail bond license in 1996, even though he had served approximately 20 years in state and federal prisons for eight separate felonies he committed over his lifetime. Shortly after the Lee Clause became law in 2005, Jackson was arrested for conspiring to murder his competitor, former Missouri State Representative Jerry Cox. Jackson is now serving 10 more years in a federal prison. I also testified that licensing felons like Jackson damages the integrity of the bail industry, it is bad public policy for the state, and undermines the citizens’ trust in the credibility of all state-issued professional licenses.

The bail bond association lobbyist, Steve Carroll, spoke in favor of the substitute that others were denied the opportunity to review.

Senator Frank Barnitz had signed on as co-sponsor of the original bill just after the session began. I spoke with Senator Barnitz after the hearing and he informed me of his displeasure that he was not notified of the substitute. Barnitz said that co-sponsors expect the courtesy of reviewing the proposed substitute language if his/her name is on the bill. He said that he is opposed to the changes proposed by the bail association and Senator Shoemyer, and only supported the bill as it was originally filed.

The Elections Committee has not met since the hearing to determine whether it will pass the bill, amend the bill, or even take up the bill at all. The committee chair, Senator Delbert Scott, has extended an invitation to submit written testimony on the substitute prior to any decision of the committee.

Although pulling a bait-and-switch is a legal and accepted political maneuver, it certainly subverts the public’s right to be heard in a “public hearing.”

Previous Posts on SB869
Hearing Scheduled
Barnitz Co-Sponsors SB869
Shoemyer Pre-Files SB869