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Missouri auditor says attorney general tried to falsely inflate cost of abortion rights amendment

Andrew Bailey shown from below in the midst of a crowd of reporters holding up microphones and recording devices.
Brian Munoz
St. Louis Public Radio
Missouri Attorney General Andrew Bailey shown here in January shortly after being sworn in.

In a seemingly unprecedented move, Missouri Attorney General Andrew Bailey demanded that the state auditor include “inaccurate information" in the fiscal summary for a proposed amendment enshrining abortion rights in the state constitution.

Missouri Attorney General Andrew Bailey is trying to convince the state auditor’s office to increase the projected cost of an initiative petition seeking to enshrine abortion rights in the constitution, according to records obtained by The Independent.

Auditor Scott Fitzpatrick has refused to make the changes Bailey demanded, arguing that the attorney general is trying to include “inaccurate information” in the fiscal summary that would appear on the ballot.

While the drama over the cost of the amendment played out, the attorney general’s office signed off on a ballot summary for the abortion-rights initiative petition that describes it as allowing “dangerous, unregulated and unrestricted abortions.” But because of the impasse over the fiscal note, that language has not yet been made public.

In correspondence obtained through Missouri’s Sunshine Law, Bailey rejected Fitzpatrick’s fiscal summary, which cited several state agencies in concluding the state would face “no costs or savings” as a result of the proposed constitutional amendment.

The summary did say one local government entity estimates losing at least $51,000 in reduced tax revenues, and that opponents of the proposal contend it could lead to significant loss in state revenue.

Bailey wrote on April 10 that the fiscal note should tally in the billions.

“…because the impact to the State of Missouri is likely to be so drastic but is not reflected in the submissions you received from state and local entities, the fiscal note on which your summary relied is legally deficient,” he wrote.

Fitzpatrick pushed back on each Bailey’s claims, writing on April 21 that though he vehemently opposes abortion and would like to be able to say the initiative petition would cost the state billions of dollars, “it wouldn’t.”

“To submit a fiscal note summary that I know contains inaccurate information would violate my duty as State Auditor to produce an accurate fiscal note summary,” Fitzpatrick wrote.

Chuck Hatfield, a longtime Jefferson City lawyer who worked in the attorney general’s office under Democrat Jay Nixon, tweeted Thursday that Bailey’s attempt to alter the fiscal summary appeared unprecedented.

“In 30 years of watching ballot titles,” he wrote, “I have never heard of an AG trying to change an auditor’s fiscal note calculations. This is wild.”

While the auditor faces resistance from Bailey on the fiscal summary, the ballot summary written by Secretary of State Jay Ashcroft was approved by the attorney general on April 24.

In the summary, Ashcroft writes that the proposed constitutional amendment would allow “dangerous, unregulated and unrestricted abortions” and “nullify long standing Missouri law protecting the right to life,” among other provisions.

Eleven versions of a proposed initiative petition seeking to roll back Missouri’s ban on abortion by adding protections for the procedure to the state constitution were filed in early March with Ashcroft’s office.

The proposals would amend the constitution to declare that the “government shall not infringe upon a person’s fundamental right to reproductive freedom.” That would include “prenatal care, childbirth, postpartum care, birth control, abortion care, miscarriage care and respectful birthing conditions.” Penalties for both patients seeking reproductive-related care and medical providers would be outlawed.

A spokesman for Ashcroft said the ballot summary could not be finalized and made public until the secretary of state’s office gets a fiscal summary from the auditor.

Brandon Alexander, Fitzpatrick’s spokesman, declined further comment.

A spokeswoman for the attorney general’s office said the focus should be on “the out-of-state money working to usurp the legislative process in order to endanger the lives of the unborn that are currently protected in the state of Missouri. We will continue to use every tool at our disposal to defend the sanctity of life.”

‘Questionable methodology’

Judge Johnnie Cox, right, administers the oath of office to Missouri State Treasurer Scott Fitzpatrick during the Missouri Bicentennial Inauguration on Monday, January 11, 2021, at the Missouri State Capitol Building in Jefferson City.
Daniel Shular
St. Louis Public Radio
Missouri State Treasurer Scott Fitzpatrick during the Missouri Bicentennial Inauguration on Monday, January 11, 2021, at the Missouri State Capitol Building in Jefferson City. Fitzpatrick is now serving as the state auditor.

While the auditor’s office is a partisan position, the process of establishing potential costs of questions appearing on the statewide ballot is not supposed to be.

Before a proposed initiative petition may be circulated for signatures, the secretary of state sends it to the auditor, who is required by law to create a fiscal note and a fiscal note summary that states “the measure’s estimated cost or savings, if any, to state or local governmental entities.”

The auditor’s office consults with state and local government agencies, and receives comments from those who support or oppose the measure. The information is evaluated, and the office prepares a fiscal note and a summary to appear on the ballot that is no more than 50 words.

The summary cannot create prejudice for or against the proposal.

The fiscal note and summary then head to the attorney general, who is tasked with approving the legal content and form of the summary. After the attorney general certifies the auditor’s work, which is typically a formality, it goes to the secretary of state.

Bailey argues that both the Department of Social Services, which oversees the state’s Medicaid program, and the Department of Revenue were incorrect when they told the auditor’s office that there would be no cost to the state if the initiative petition passes.

The attorney general believes — and several opponents of the abortion-rights petition argued in letters to Fitzpatrick — that the proposed amendment could put federal Medicaid money at risk, costing the state at least $12 billion annually. He also contends the fiscal summary should reflect possible loss of tax revenue as “aborting unborn Missourians will have a deleterious impact on the future tax base.”

Fitzpatrick said information obtained from DSS and DOR was “clear and did not raise additional questions or appear incomplete.” Yet he still spoke directly with the director of both agencies, he wrote, as well as the state’s Medicaid director to address Bailey’s concerns. Their conclusions did not change.

“Based on my experience in state government as a legislator, State Treasurer and State Auditor and my overall knowledge and understanding of the state budget and Medicaid funding, I see no argument to be made that the state’s $12.5 billion in annual Medicaid funding is at risk,” Fitpatrick wrote.

“Additionally, no legal opinion presented to me, including yours, provides analysis supporting the claim that Missouri’s Medicaid funding could be lost due to mandated violations of federal law, and stating such in the fiscal note summary would be inaccurate.”

The fiscal note produced by Fitzpatrick does include that a local government entity estimates costs of “at least $51,000 annually in reduced tax revenues.” That stems from an estimate submitted by Greene County that it would immediately suffer a $51,000 fiscal loss due to the “anticipated abortion of approximately 135 future citizens.”

Bailey wants the auditor’s office to extrapolate that statewide, Fitzpatrick wrote, which would be inaccurate and inappropriate.

“The State Auditor’s Office,” he wrote, “is not required to parrot the fiscal responses provided by proponents or opponents in the face of knowledge that such responses are unreasonable or otherwise include questionable methodology or an unidentifiable source for its fiscal assessment, nor should it be.”

As of Wednesday afternoon, a fiscal note has not been approved and submitted to the secretary of state.

Both Bailey and Fitzpatrick are Republicans who are new to their jobs.

Fitzpatrick is a former state lawmaker who was appointed Missouri Treasurer in 2019. He was re-elected to the office the following year, and was elected auditor last November.

Bailey became attorney general in January after being appointed to the job by Gov. Mike Parson to replace Eric Schmitt, who was elected to the U.S. Senate.

This story was originally published by the Missouri Independent.

Jason Hancock has been writing about Missouri since 2011, most recently as lead political reporter for The Kansas City Star. He has spent nearly two decades covering politics and policy for news organizations across the Midwest, and has a track record of exposing government wrongdoing and holding elected officials accountable.
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