Bob Bernick’s Notebook: Number of Secret Bills Exploding on Utah’s Capitol Hill

What would you say about a legislative process where nearly two-thirds of all proposed bills were secret until they were formally introduced into the Legislature?

I doubt many voters would like that system.

I’m guessing voters would like to see those bills – or at least their titles – made public much earlier in the law-adopting process.

Well, UtahPolicy, using various public sources, has determined that as of a week ago, there were 423 bill files opened in the Office of Legislative Research and General Counsel, of which only 160 were openly listed by title along with their sponsors’ names.

That means 263 bills – or 62.17 percent – were “protected.”

A better word is secret.

Under Utah legislative rules any one of the 104 state House and Senate members can request that researchers/attorneys open a bill file, and start work on researching and drafting a proposed bill, and keep that work secret.

The public, media – even other legislators – can’t be told by staff that the lawmaker is considering such a bill.

Now, early in each legislative session there is a bill-filing deadline. And by that date all bills – whether secret or public – must be number and introduced by sponsoring lawmakers.

But even then, bills can be a “boxcar” –  given a short title and a number, but have no text in them.

And the titles of boxcar bills can be vague, like “government amendments” or “budgetary changes.”

Then, late in the annual 45-day general session, the boxcar bill can be retitled, text placed in it, and the proposed new law sprung upon the public, media and other legislators.

You all remember HB477 in the 2011 Legislature? That GRAMA “reform” bill was secret, then a boxcar, then text placed in it and passed (with required public hearings) within 72 hours toward the end of the session.

Much public embarrassment by GOP Gov. Gary Herbert and GOP leaders as Herbert called a special session just weeks after adjournment and HB477 was repealed.

In any case, as the 2015 general session of the Legislature looms – it starts in late January – UtahPolicy finds that nearly two-thirds of all bill files opened are “protected.”

Secret bills bother several legislators – like Rep. Kraig Powell, R-Heber City – who says he makes all of his bills public upon his request that a bill file be opened.

Powell says it is only right and proper that lawmakers make known to their constituents and others the kind of bills they may, or may not, decide to formally introduce in the Legislature.

But most other lawmakers don’t agree.

And often that’s because they just don’t want the hassle of dealing with the public/media/special interest groups that would jump on them if they knew what the legislator was considering.

For example, let’s say that any number of powerful special interest groups WANT higher taxes and more revenues for road construction and maintenance.

And those groups find several sympathetic legislators who may sponsor revenue-enhancing bills.

But if those lawmakers – especially GOP lawmakers – make public a bill being drafted in October for a transportation tax hike by March’s end of the 2015 Legislature, well, that fella could be pounded in public by archconservatives who want NO tax hikes in the state, no matter how good the cause.

Another example: In the 2014 Legislature, GOP lawmakers agreed to a compromise with Count My Vote – the group poised to get on the November ballot major changes to Utah’s candidate nomination process.

That deal, SB54, is much hated by hard-core Republicans, especially party insiders/delegates who will see their candidate nominating powers greatly reduced.

There’s a good chance that a number of the 62.17 percent of “protected” bills now being drafted by legislative attorneys for the 2015 Legislature are changes/repeals to SB54.

But Count My Vote organizers raised more than $1 million in 2013, and were near the required number of voter signatures collected to get their alternative route to party primaries for candidates when the SB54 deal was struck – killing the citizen initiative for 2014.

If GOP legislators who are keeping their anti-SB54 bills secret had to acknowledge publicly those bills now, no doubt CMV bosses would begin a campaign to stop those changes.

And CMV clearly has the political muscle/money to make a November re-election for such anti-SB54 candidates a troubling run.

Now, there’s no doubt that not all of the 263 secret bills now being worked on will remain secret up until the bill-filing deadline.

These are just bill files opened. And many of those will be dumped by their sponsors – never seeing the light of day.

Even many boxcar bills – filed with a number and short title – will not ultimately be filled in with text and moved through the bill hearing process. They, too, will die quietly, killed by their sponsors.

I’m guessing maybe 20 percent or 30 percent of all bills passed in any given general session started out as secret, or “protected,” bills.

But that’s just my guess.

We don’t know, because to the best of my knowledge, no record is kept by staff on that issue.

But as of last week two-thirds of all bills now being drafted by legislative staff attorneys are secret – the public doesn’t know what they are, can’t even begin to estimate their cost to taxpayers and/or their impacts on our lives.

I’m thinking there has to be a better, more open, system as individual legislators contemplate in the months coming up to a general session what bills they plan on running.