The Utah Legislature is passing more new laws than ever before.
And the 104 part-time legislators are passing a higher percent of bills before them than ever before.
Which clearly leads to the question: How is this GOP-dominated, conservative-controlled body laying so many new laws on citizens who, basically, believe in LESS, not MORE, government?
Rep. Mel Brown, R-Kamas, co-chair of this year’s new Legislative Process Committee, says it’s clear to him that the quantity of work in the 45-day general session certainly has gone up.
But Brown seriously wonders if the quality has kept pace. Most likely, it’s actually gone down.
The numbers show that legislators are swamped with complex bills, vote on many without fully understanding what they may mean to citizens, and take the lead of more senior members in voting both in committee and on the floor.
The process committee heard a number of troubling statistics from its admittedly-overworked staff this week.
Here are just a few:
— An all-time high number of bills are being requested from Legislative Research and General Counsel.
Around 1,200 bill files were opened for the 2013 Legislature, which by the Constitution has only 45 calendar days to complete its annual general session.
That is one of the shortest general sessions among the 50 states.
— In 2013 around 70 percent of all the bills formally filed passed.
— Only 27 bills were actually voted down, either in the 75-member House or the 29-member Senate.
There are various reasons so few bills die. But one theory is that more congenial legislators don’t want to harm the feelings of fellow lawmakers, and so don’t vote to kill his or her bill.
— 525 bills passed in 2013; up by 135 in 2003. (Many bills die from lack of action the final days of each session. They are not killed by actual votes on the chamber floors.)
— There is less and less debate in both the House (where there is only one vote on the floor for each bill) and in the Senate (where there are actually two votes on each bill).
— Both bodies are passing more bills on their “consent” calendars. Those are bills that are voted up or down (nearly always up) without debate. The vote must be unanimous. The sponsor gives a brief summary and the vote is called for. In the House, there is an electronic vote. The Senate doesn’t even do a roll call on consent; the president just announces that there are no nay votes.
Consent bills used to average around 40 in each house; now that is up to around 100 in each house.
— Standing committees aren’t doing much in the way of “sifting” bills – or killing some and passing others.
— Two years ago, said Brown, only one bill was killed in a committee.
— In 2013, only six bills were “tabled” in a committee – which most likely lead to the bills’ deaths.
One of the great complaints by legislators in recent years is the increased use of substituting bills, either in a committee or on the floor.
A substitute bill, said John Fellows, the Legislature’s chief counsel, is “cleaner,” and there is much less chance of mistakes being made when a number of amendments are made on the floor or in committee.
But often times a sponsor will desire a bill that he or she knows will have real problems. So instead of starting out with that problem bill, the lawmaker introduces a watered-down version.
Then, later in the bill hearing/voting process, the lawmaker substitutes the bill for the one he originally intended. There is less time to debate it, less time to understand it’s total meaning.
Rep. Patrice Arent, D-Holladay, in the 1980s was a drafting attorney inside of Fellow’s office.
She said there were times when a legislator would ask for five items in a bill, but then tell her to take out the two controversial ones for the original introduction.
She did what she was asked, but was uncomfortable when during the time-stressed session she was asked to draft a substitute bill with the controversial two measures back in it.
“I know this is still happening today,” said Arent, who sits on the process committee.
But wait, can’t the bill passing train be slowed down by a legislator asking for an updated fiscal note (how much it costs taxpayers) on a substitute bill?
Yes and no.
Jonathan Ball, the Legislature’s top budget staffer, confirmed to UtahPolicy that while an updated fiscal note must be attached to a bill before it has a final vote in the House or Senate, in fact a bill sponsor can ask (and some do) the Fiscal Analysts Office to hold (keep private) an updated fiscal note on his substitute bill.
And, in fact, a substitute bill that HAS an updated fiscal note, can be heard, and passed, in a committee WITHOUT the committee members ever seeing that updated note – the sponsor has withheld it as is allowed under current legislative rule.
In other action, the committee at its next meeting will make recommendations on better use of time during the first week of each session.
And members will also make recommendations on better used of time in the final session’s week.
Concerning that last week: Of concern is the practice by some cagey legislators of holding their bills on the floor calendar of their own house. Toward the end of each session, they move their bill in their house and it comes over to the other house AFTER standing committee hearings have been cancelled – as is the practice the final week.
Thus, their controversial bill only has a public hearing and committee vote in their own house.
Even though few bills are killed each year in committee or in the other house floor vote, the sponsors still don’t want to take that risk. Once a bill goes to the other house, the sponsor basically loses control of it.
A study by legislative staffers finds that more and more bills are only getting a public hearing in the sponsor’s own house – the senator gets a vote in the Senate committee, but bypasses a House committee hearing/vote and vice versa.
In 2003, 160 bills had only one public hearing – in the sponsor’s house.
By 2013, 390 bills only had one hearing – in the sponsor’s house.
In previous process meetings, committee members said it is often the case that early in a session lobbyists or special interest groups aren’t paying as much attention. But after a bill passes in one house, more public scrutiny takes place.
However, since no public hearing is held in the opposing house, no public objection can be made.
The process is further waylaid if the sponsor substitutes his bill in the opposing body (that is done by the co-sponsor in that body.)
Now there could be important changes to the original bill, but NO public hearing on that substitute at all.
For various reasons, in 2013 30 bills passed with no public hearing at all, even though rules call for at least one such hearing. (The rules are suspended in the final week.)
Those could be technical budget bills whose contents have been vetted by a budget subcommittee, but several were actual bills that came up quickly at the end of the session, staffers said.
Committee co-chairman Sen. Lyle Hillyard, R-Logan, noted that in 2011 the now-dreaded HB477 had two “full” hearings, one in the House and one in the Senate.
But the GRAMA-deflating bill was still handled in a manner that legislators quickly regretted, noted Hillyard.
The bill was recalled from the governor’s office, amended. But later Gov. Gary Herbert called a special session to repeal it, after a public and media outcry.
Committee member Rep. Mike McKell, R-Spanish Fork, a freshman who saw action for the first time in the 2013 session, said he knows he and other freshmen voted on bills that they really didn’t know much about, “even though I know there were guys up studying bills all night.”
“I didn’t know all the bills as well as I should have. I certainly wouldn’t run my law practice like that, not at all.”