My view: Deliberation, open debate are essential for lawmaking

Kim R. Burningham

Published: Tuesday, April 3 2012 12:00 a.m. MDT

The Utah Legislature meets May 6, 2011.rn

Jeffrey D. Allred, Deseret News

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To most Americans, openness and candor are respected values. The foundation of a representative government is the free expression of ideas. Why then do some members of our Legislature spend so much time dealing in subterfuge, governmental secrecy and circumvention?

In the Utah State Legislature illustrations are not rare. As a legislator of 15 years and an observer of the process for countless more, I know many legislators are open and committed to a public accountability. In my opinion, however, some are not, and changes are needed.

First, open legislative caucuses. For years attempts have been made to require open legislative caucuses. Currently, the minority party opens caucuses; the House majority sometimes open caucuses and the Senate is typically closed. Current open meetings law, written by legislators, specifically exempts legislative caucuses. The result: some decisions are reached without public scrutiny.

A legislator may feign support of a position publicly which he/she does not advocate privately. Memory of such duplicity is vivid. I remember when one legislator adamantly argued against an important education issue in closed caucus. With amazement, I watched that same lawmaker seek to speak in favor of that position on the floor. Such duplicity is unlikely with open caucuses.

Utah's open meeting law provides reasonable exemptions. The Legislature should follow the same guidelines expected of other public bodies!

Second, eliminate last minute legislation. The 2011 Legislature illustrated abuse by delaying debate. HB477 (the infamous case gutting Utah's open records law) was purposely introduced very late in the session to close the window of public sunshine. In an amazing display of "fast track" legislation (approximately two days), the bill was rushed to conclusion.

Last minute bill presentation means a bill may actually appear so late the committee hearings and public debate is entirely circumvented. Fortunately, intense media coverage and public clamor demanded reversal of this abuse caused by a legislative body in a rush. "GRAMA" was reprieved.

Third, reduce the use of "boxcar bills." Thirty years ago, boxcar bills were rare. These "empty shells" are bills filed to meet a deadline without content. As I recall, the device was formerly used so a few high profile bills could be written after legislative committees made decisions. Today's practice is a far cry. Numerous bills with vague titles are introduced, and the secret content is only clear in the last moment.

Fourth, use "intent" language sparingly. This year, a maneuver using intent language occurred in the Education Appropriations Subcommittee. Intent language in appropriations bills has existed for years. That language was usually subtle clarification of a procedure of minor significance.

Not in 2012. In a late-night meeting in the final moments the chairs of the Education Appropriations Subcommittee distributed pages of intent language they wished included in committee recommendations. Most expected intent language to be fairly minor — this was not. The chairs proposed major policy changes (even changes previously debated and defeated).

Fortunately, observers complained even though legislative leaders said nothing untoward occurred, several contested items were finally excluded. The attempt to "pull a fast one" was exposed.

Fifth, reject "omnibus" bill approaches. In 2008, legislators passed an omnibus bill. Near the session's end, new legislation, SB2, was revealed. Politicians had thrown together diverse items in one bill. The strategy was clear: "By including disparate 'plums,' we can buy votes." Examination revealed the sponsors had included two pieces of legislation actually debated and defeated earlier in the session.

One legislator said, "The federal government does it." Hardly a reason to justify such pressurized "logrolling."

A lawsuit against SB2 (the Omnibus Bill) filed by a number of plaintiffs, including former legislators, is currently proceeding through the judicial system. On April 11, the Utah Supreme Court will be hearing arguments on SB2.

Careful deliberation and open debate are essential ingredients of lawmaking. Unfortunately, devices suggested here show some politicians really do not like open, deliberative process. This abuse must be reversed!

Kim R. Burningham is a candidate for Utah State Board Of Education District 5, Utah.

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