Bob Bernick’s Notebook: Stemming the Flood of ‘Secret’ Bills on Capitol Hill

A special legislative committee would like to find some way to reduce the growing number of “protected” bills lawmakers are secretly working on just before each general session.

The Legislative Process committee discussed the idea in a Thursday public meeting, with members asking staff to come back next month with some options.

As reported by UtahPolicy earlier this month, what used to be a rare use of the “protected” bill process has grown in recent years.

And worse, from the position of legislative staffers, cagey lawmakers are flooding bill files with secret bill requests early in the bill-drafting process, and thus gaming the system so their bills will be researched and written before those of their colleagues.

Legislative staffers don’t normally say how many bills lawmakers keep secret during the drafting process.

But UtahPolicy, earlier this month, was able to take several public statements, do the math, and figure out that as of early October 62 percent of all bill files opened were secret – that is, their sponsors opened a bill file and told staffers not to list that bill on the Legislature’s public web site.

During the discussion Tuesday, co-chairs Rep. Mel Brown, R-Kamas, and Sen. Lyle Hillyard, R-Logan, asked chief legislative counsel John Fellows how many “protected” bills are now being drafted by his attorneys.

After checking with his staff via phone, Fellows reported that as of Thursday 562 bill files have been opened by lawmakers, 325 are “protected,” or kept secret. That means the public cannot see 59 percent of all bills.

Now, that percentage will shrink as lawmakers decided, one by one, that this or that secret bill they are considering is either made public, formally introduced after the 2015 Legislature begins in late January, or the lawmaker abandons the bill (in which case, it will never be made public).

Later in the meeting, Fellows got some numbers from the 2014 Legislature.

He said that last session there were, in total, 1,222 bill files opened, and that ultimately 360 held the “protected” status sometime during their drafting, making only 29.5 percent secret.

But, of course, many of those bills were just dropped by their sponsors, and so never considered by the Legislature.

Of the 862 bills that were officially introduced in the 2014 Legislature, around 42 percent were secret until the sponsor finally decided to formally introduce them, or make them public before the session started.

Still, having 42 percent of the public’s work done – at least in part – in secret probably isn’t a good thing.

Especially if the number of secret bills is growing one year from the next.

Longtime lawmakers Brown, Hillyard and Democrats Sen. Gene Davis, D-Salt Lake, and Rep. Patrice Arent, D-Holladay, all said when they started in the Legislature as best as they can tell few bills were “protected.”

One reason for the growth in secret bills, said Fellows, who has been with the Legislature since the 1980s, is “gamesmanship” being played by some cagey lawmakers.

Each 45-day general session ends in early March. The first day to file bills for the next session is May 15.

Internal bill drafting rules operate like this:

— Bills drafted and passed by interim study committees get top bill-drafting priority.

— Then each lawmaker gets three “priority bills” – which the legislator himself names, and those priority bills get worked on right after the committee bills.

— Then bills are researched and drafted by staff in a “first in, first out” basis.

So cagey lawmakers will come in on May 15 and open, say, 15 bill files, with internal titles like “government amendments,” or “human service changes” and keep those bill files secret.

Those act as drafting placeholders, explained Fellows.

Then those cagey lawmakers can come to drafting attorneys just before the bill-introduction deadline (the second week of each 45-day session) and say: “Take one of my 15 protected bill files and write me this bill and I want it in two days.”

Other work the drafting attorney is working on (beside a priority bill) with a lower “first in, first out” date, must be put aside, and the secret, early-filed bill must be worked on.

There’s an added dimension to this, as pointed out by Brown (who used to be the House parliamentarian and knows all the ins and outs of legislative procedure).

Not all bills become known even after they have been formally introduced and numbered.

Lawmakers can introduce a “boxcar” bill on the bill-filing deadline – it has a number and a short title, like “Government Amendments,” but have no text.

Later in the session, the lawmaker can drop in bill text; change the bill title to what the bill is really about, and starting running it through the hearing and adoption process.

Thus, a legislator can open what will become a very controversial bill, keep it secret during drafting, make it a “boxcar” on the bill filing deadline, and spring it on the public and colleagues with only days left in the session.

Just Google HB477 in the 2011 Legislature and you’ll see how this works.

Brown and Hillyard talked about putting an internal deadline on secret bills – like letting a bill stay secret for 20 days or 30 days after a bill file is opened, and then requiring the bill to be made public or abandoned or re-filed (and thus lose it’s priority in the bill-drafting process).

In the end, committee members said it would probably be better to have a date deadline – likeDec. 1, or Jan. 1 — and by those dates have all “protected” bills be made public or be abandoned by their publicity-shy sponsors.

It has gotten to the point, said Fellows, that some lawmakers keep all of their bills secret, or by far most of them.

Brown asked committee members how many secret bills they are now working on.

Several sheepish grins.

So Brown announced he has only one bill file open, and it is secret. (He didn’t say what the bill is.)

Rep. Mike McKell, R-Spanish Fork, said he has five bill files open, one is public, four are secret. (He didn’t name the secret ones, either.)

Several members said they don’t want to make public some bills they are working on because they will be bugged by special interest groups, lobbyists or the media who want to know what they are up to.

Often legislators need time to formulate their own thinking, quietly build supporting coalitions and/or make other deals before making their intentions public.

Already this interim, there is much speculation about bills that could amend or repeal SB54 – the controversial law/compromise over how political parties pick their nominees; as well as a number of bills that have to do with same-sex marriage and gay rights.

Some of those bills could be “dropped” late into the 2015 Legislature, which begins Jan. 26.

Ultimately, it will be up to GOP leaders and the House and Senate Republican caucuses to decide what to do with secret bills, if anything.

And changes will likely come through internal legislative rules that are publicly voted on during the Legislature’s general session.