The Public Deserves Open Caucuses in the Utah State Legislature

Kim Burningham 01In 1981, I was in my 2nd year as a member of the Utah House of Representatives.  

Although the experience had many positive aspects, one feature greatly troubled me: holding the Legislative political caucuses in closed session.  My frustration boiled, and in March near the end of the legislative session I addressed the Capitol rotunda full of educators about my frustration.
My objection to closed caucuses focused on five faults which–
  • Avoids public scrutiny by allowing decision-making in a setting where the public cannot be present
  • Disenfranchises voters represented by the minority party
  • Creates an atmosphere of intimidation, particularly for new legislators
  • Encourages hypocrisy (a legislator can say one thing in caucus and another in public)
  • Allows for minority rule (since the majority of the caucus can mathematically be a minority of the total legislative body)
(Michael White, “Teachers rally for better…,” Deseret News, March 5, 1981)
From my point of view, those problems still exist and are even more serious today!  But more of that in a few paragraphs.
I expected some of my colleagues to respond negatively when I announced my opposition to closed caucuses, but I was not prepared for the opposition’s intensity.   Within seconds of my speech’s conclusion, a Senator confronted me and speaking with fierce vigor told me I had irreparably damaged my political career.   (“People’s Right to Know,” Ogden Standard Examiner, March 6, 1981)  In fairness, I must report the same senator later wrote me a kind letter of apology.
The next day I felt the bitter pill of some of my colleague’s anger.   Rumors circulated that some were calling for my castigation and possible expulsion from the Republican caucus because of my speech.  Thanks to calmer voices of Representatives like Speaker Norm Bangerter, Representatives LaMont Richards, Bob Garff, and a few others that did not happen.
In the weeks that followed disapproval of some of my colleagues dissipated, but my concern with the system did not.  For several years, I continued to sponsor legislation calling for open caucuses.  The bill never survived floor action.
Utah’s “Sunshine Law” unwisely exempts the Legislature’s own political caucuses.
The Utah Open and Public Meetings Act (Title 52, Chapter 4) has existed for decades.  It defines public meetings and requires such meetings be open with exceptions.   Some of the exceptions make sense, e.g. discussion of character, professional competence, or health of an individual; collective bargaining or litigation strategy sessions; and security misconduct.  Exceptions should, however, be carefully monitored.
When the original law passed, the section which would have opened caucuses to the public was amended out.  A KSL editorial said excluding caucuses was “like writing a code on fire safety and exempting wooden buildings.” Although the original law has been amended through the years, the exemption continues today
Utah Code (52-4-103-(9)-(c) specifically states that “‘public body’ does not include a political party, political group, or political caucus.”   In subsection (a)-(iv), however, it explains a public body does mean a “legislative body…vested with the authority to make decisions regarding the public’s business.”  
To me, that is the rub!  Is it really possible to suggest the caucus does not make decisions—vested or not?
The problems created by closed caucuses are even greater today
The problems have been exacerbated by the Utah Legislature’s current domination by one political party.
When the power was nearly divided, a closely contested decision would not be clear until the legislators had a chance to vote in the open meeting of the full house.   Now, sufficient votes are found in the Republican caucus, and the Democrats can (and in some cases are) completely ignored!  I understand Minority leader Brian King’s description of the process as “abuse” of power.  (Brian S. King, Speaker Hughes shows Soviet-style subversion of democracy, Salt Lake Tribune, October 17, 2015)
The House of Representatives’ decision on Medicaid Expansion (Healthy Utah) is a vivid example.  The Senate voted to pass the compromise advanced by Governor Herbert; the proposal then moved to the House.   It never reached the floor of the House for debate.   Instead, the Republican caucus met, discussed the matter, and in closed session apparently decided the proposal would not be advanced for public debate and vote.  Even with the Democrats 38 votes could not be mustered Speaker Greg Hughes reported.  No votes in the caucus were recorded.  Although some legislators indicated how they voted on the issue, more did not.  (Lisa Riley Roche, “Behind closed doors: Public decision made in private,”Deseret News, January 23, 2016)
Did they make a decision?  How can one keep a straight face and say they did not?
Clearly, public scrutiny was sidestepped and the minority was disenfranchised.  Worst of all, many of the poor who suffer serious health problems were ignored.
Most of the public feel the need for reform.  One poll put public support for open caucuses at 91%.   The Utah Media Coalition (which includes major news outlets across the state and of various convictions) recently addressed Legislative leaders, pleading that “Utah deserves better.”  Thus far, their plea appears to have been ignored.  (Robert Gehrke, “Utahns want legislative debate out in the open, Salt Lake Tribune, January 25, 2016)
For too long, democracy in our State has been shackled by this error in the system.  Long ago, many other states abandoned the practice.  The ancient practice needs shelving!  Now is the time for Utah to open the doors of the caucus.