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Behind closed doors: Public decisions made in private

Published: Saturday, Jan. 23 2016 9:30 p.m. MST

People tour the House of Representatives at the Utah State Capitol in Salt Lake City on Thursday, Jan. 21, 2016. The 2016 Legislature begins its annual 45-day session on Monday, Jan. 25, 2016.

Laura Seitz, Deseret News

SALT LAKE CITY — Twice, Gov. Gary Herbert has advanced plans to use the millions of dollars in Medicaid expansion funds available to the state to provide health care for low-income Utahns.

And twice, the Utah House Republican caucus has decided behind closed doors that those plans shouldn't advance in the Legislature, citing an internal rule requiring the support of at least 38 members, enough for passage without Democratic votes.

That's led to concerns about transparency and accountability as closed caucus meetings are used to decide key issues, according to the Utah Media Coalition, which represents the Deseret News and other major media outlets and journalism organizations.

House Minority Leader Brian King, D-Salt Lake City, is also concerned and went so far as to accuse House Speaker Greg Hughes, R-Draper, of abusing his power to render Democrats irrelevant.

And Josh Kanter, founder and president of the board of the left-leaning Alliance for a Better Utah, said when lawmakers discuss legislation and count votes behind closed doors, it's a problem for everyone, not just the media.

The governor, however, was reluctant to criticize his fellow Republicans, who hold supermajorities in both the House and Senate.

"I think the more open and transparent we can be, the better it is for the public," Herbert said. "But I expect there are some times when they need to have some frank discussion and just as soon not have the press" there.

It's up to lawmakers to decide if the practice should be changed, the governor said.

"I think there's an appropriate balance," he said. "I don't think everything needs to be open. But I don't think everything needs to be closed either."

If the public has concerns about closed caucus meetings, "they need to weigh in on it, and I think the Legislature listens to the public," Herbert said. "Certainly, when there's pressure brought to bear, I think they respond appropriately."

But both the House speaker and Senate President Wayne Niederhauser, R-Sandy, said there's no plans to reconsider closing GOP caucuses during the 2016 Legislature that begins Monday.

And neither GOP legislative leader has responded to a letter challenging closed caucuses sent nearly a month ago by attorneys on behalf of the media coalition, attorney Jeff Hunt said.

"It wasn't intended as a threat to bring a lawsuit, but at the same time, we do expect some serious engagement by legislative leaders on these issues," Hunt said, promising the issue will be pursued.

The state's Open and Public Meetings Act provides an exclusion for a "political party, political group or political caucus" to meet in private, but the letter said that doesn't extend to meetings where a majority of lawmakers are present.

That means, the letter said, a majority of House or Senate members can't "discuss, debate or vote upon pending or proposed legislation behind closed doors just because all of the attendees happen to be members of the same political party."

Otherwise, the letter said, "the fate of all legislative proposals could, for all practical purposes, be decided in secret." That's a concern that extends beyond the media, Hunt said.

"That would be a serious political miscalculation if people are thinking this is just a media issue. It's not," Hunt said. "I think the public cares deeply about these issues and wants the business of the Legislature done in the public view."

Chris Karpowitz, co-director of BYU's Center for the Study of Elections and Democracy, said decisions made by public officials in private adds to Americans' distrust of government.

"When people see the Legislature making decisions in a way that's perceived to be behind closed doors, that doesn't help this sense that we can't trust those who are elected to act in the best interest of their constituents," he said.

Karpowitz said closing a caucus to discuss strategies and issues isn't what's causing concern.

"That's not, in and of itself, a harmful thing. It's when you combine that with disproportionate control of the state Legislature and a willingness to use those meetings as a way to move key pieces of legislation off the agenda that it becomes a problem," he said.

A 'rare occasion'

Not all caucuses are closed.

Only Senate Republicans keep their caucuses closed to the press and public. Democrats in both the House and the Senate have a policy of opening all their caucus meetings, while House Republicans usually meet in public.

House Majority Leader Jim Dunnigan, R-Taylorsville, said House Republicans held 23 caucus meetings last year and closed portions of about a half-dozen and all of only one, called during the legislative interim in October to discuss Medicaid expansion.

Hughes said more than 90 percent of the time Republicans have met in caucus, the meeting has been open to the press and public.

"We, on rare occasion, have closed our caucus," the speaker said, adding the closures were mostly to talk about campaigns and other political topics.

"But there's some issues that were hotly contested or debated that we wanted to be able to speak with complete candor and not see it politicized. I think there is some value in that," Hughes said.

During the 2015 Legislature, the House GOP caucus room doors were shut when the governor's Healthy Utah plan for Medicaid expansion was reportedly rejected despite having passed in the Senate.

House GOP leaders initially said the proposal wouldn't get a hearing, but relented under considerable pressure. The plan to provide health care for some 126,000 Utahns failed in committee and later in an attempt to revive it on the House floor.

The House Republican caucus was said to have come to the same conclusion last fall about what was supposed to be a compromise Medicaid expansion plan from the governor and GOP legislative leaders, known as UtahAccess+.

Those meetings frustrated Democrats in the House, who hold only 12 of the 75 seats in the lower chamber, because the speaker had said he would require Medicaid expansion to have 38 votes in the caucus to advance.

That's the number of votes it takes to pass legislation in the House, more than a majority of the 63 Republican representatives. Hughes has said that's a long-standing House GOP rule on key issues, although some former speakers disagreed.

'Abuse of power'

In a Nov. 30 email to the speaker obtained by the Deseret News, King accused Hughes of "abusing your power" to disenfranchise minority party members.

"You may feel my use of the words 'abuse of power' is uncalled for or uncivil. But what would you call it if you were in my shoes? I'm not tiptoeing around what's happening here," the House minority leader wrote.

"From a procedural perspective, cutting the Democrats out of the process is a nuclear bomb. There is nothing worse you can do legislatively or politically to the members of the minority party," he said.

King said he did not receive a response to that email, or one he sent earlier to House leaders expressing Democrats' frustration with the 38-vote requirement that they believe leaves them irrelevant.

"We might as well not show up. That's what I hear the speaker saying. Of course, he denies that," King recently told the Deseret News and KSL editorial boards, calling the requirement "very different from anything we've seen in the past."

'Good political strategy'

A former Utah House speaker, David Clark, a Republican from Santa Clara, said there was always an effort to find 38 votes within the House GOP caucus on major issues, but legislation wasn't held back if the votes weren't there.

"We just took it upon ourselves to say that if we were going to lead, we had to get 38," said Clark, who served as House speaker in the 2009 and 2010 sessions. "It is politics, and that's just good political strategy."

But Clark, who claimed Republicans only closed a single caucus for a half hour during his tenure, said he couldn't "recall saying, 'All right, there's no caucus position on this one. It will never see the light of day.'"

Rep. Brad Dee, R-Ogden, who served as majority leader under Hughes' predecessor as House speaker, the late Becky Lockhart, said there's no set rule that it takes 38 votes for a caucus position, but that is the standard.

Dee, who unsuccessfully ran against Hughes for the speakership, said he believes Hughes is being unfairly criticized.

"He's trying to work with the will of the body," Dee said. "He's taking, I think, some unjustified hits for that."

Longtime lobbyist Craig Moody, who served a two-year term as speaker in the early 1990s, said Republicans didn't hold a supermajority of the Legislature then and had to pay much more attention to Democrats.

"The 38 (vote) rule is kind of comical," Moody said. "If we lost six (Republicans), Democrats could control the vote. … It was a lot closer numbers-wise. And we probably had a lot more open discussion on the floor."

Hughes said the rule that 38 votes are needed for the caucus to take a position is informal and usually invoked only when an issue is big enough that it will take up considerable committee and floor time, like Healthy Utah.

"We did it with that one. And it did not even receive close to the support it needed to move forward, so we didn't want to let it have the effect of letting it interrupt other bills. That doesn't happen very often," the speaker said.

'A political decision'

Hughes said the vote taken in the closed caucus on the governor's plan for Medicaid expansion money confirmed what House GOP leaders already knew, as did the committee hearing and floor votes that eventually occurred.

"That bill was unique in terms of the lobbying that was occurring, but the lack of support it had in the caucus. So we just had to make sure we were seeing things the way we thought they were, and we did see it the right way," he said.

The speaker said he can't predict whether that will happen again this session.

"We will close caucuses if and when we feel we need to have those frank conversations. And we feel that they are rare in nature, but it is something that we do and is not foreign to the legislative process," he said.

Hughes said the Senate deserves similar scrutiny.

"As long as your outrage is consistent, that's fair enough," he said. "I envy a body like the Senate that can close every one of them, and not have to go through maybe the angst that's created when this body rarely closes it."

The Senate president said he hasn't heard any constituents complaining about the Senate Republicans' long-standing practice of closing caucuses. He said being able to discuss Healthy Utah behind closed doors helped the plan pass in the Senate.

"I owe a lot of the discussion to being able to vet that issue in a closed caucus," Niederhauser said. Members were able to consider the governor's plan without worrying about critics.

"Whether it's the press, the tea party, all kinds of interests out there are ready to question, criticize, press you, threaten they're going to run against you, all that sort of stuff," he said. "So we do that in a private situation."

Josh Daniels, policy analyst for the libertarian-leaning Libertas Institute of Utah, said he doesn't see a problem with closed caucuses.

"Insofar as a political caucus is a political organization and is taking a political decision, they're not conducting public business," Daniels said, comparing the decisions by House Republicans on Medicaid expansion to legislative leaders agreeing issues like alcohol reform won't advance.

'Public's right to know'

Kanter, with the Alliance for a Better Utah, said he's opposed to any legislative meetings behind closed doors.

"We think that's effectively what's been happening, particularly with Medicaid," he said, with lawmakers "hiding behind the loophole of a closed caucus, but it certainly appears to be a meeting of the supermajority of the Legislature."

Kanter said he hopes voters will push for the law to be changed so caucuses can't be closed, whether it's over Medicaid expansion or another issue.

"Of course it can be done. It's just a question of when voters have had enough," Kanter said. "That can't just be a media problem. That is a public's right to know problem."

One Republican lawmaker did try to change the law in 2012, but his bill was never considered.

"You can imagine the reception that got," said Rep. Kraig Powell, R-Heber City. "I had some legislators tell me that if you don't like closed caucuses, you're stuck with a situation where, as a rank-and-file legislator, you have no idea what's going on."

Powell, though, said that's a trade he's willing to make.

"Lawmaking is not easy. It's not easy to do it in public. It is a very political process. I actually do believe if we had to do more in public, there are some issues that some legislators would not bring up," he said.

But Powell said he believes the controversy over the closed caucuses may result in fewer instances of decisions being made in private, something he said his constituents have said they want to see.

Citing the intense public pressure that led to the repeal of a hastily approved 2011 bill seen as gutting the state's open records law, Powell said lawmakers need to pay attention to their concerns.

"If we're going to be accountable to the public, the public has to know what to hold us accountable for," he said. "My prediction is the caucus will continue to try to hold open caucuses as much as possible, especially because of some of the questions raised."

Email: lisa@deseretnews.com

Twitter: DNewsPolitics

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