While the practice has been growing in frequency for some time, it’s mainly over the last five years that “boxcar” bills have become a concern in the Utah Legislature.
A solution?
Only allow Republican and Democratic leaders in the House and Senate to introduce bills that have no text – just a short summary under a general title, like “government amendments” or “tax changes.”
That is the new idea – or, rather, a return to the good old days – a special legislative process committee will study over the next several months.
“The number of boxcar bills have increased” over the last half-decade, says John Fellows, the chief general counsel to the 104 part-time legislators, and staff attorney to the Legislative Process Committee.
Former House Speaker and current House budget chairman Rep. Mel Brown, R-Kamas, Monday afternoon suggested that the committee study the boxcar issue with an eye toward returning to the old days of when only elected members of leadership introduced bills with no text.
Such bills are called “boxcars,” as in an empty vehicle that could carry a lot of information as needed.
More and more – Fellows couldn’t put an exact number on it – rank-and-file legislators (75 in the House, 29 in the Senate) have become “more sophisticated” and are introducing boxcar bills themselves.
Part of it is political strategy – don’t tip your hand about what you may want to sneak through late in a legislative session.
But part is ego – if it is good enough for the leaders to spring their law-making changes late in a 45-day general session, it’s good enough for the followers, too.
It’s not as bad as Animal Farm, where the barnyard leaders decided that while all animals are created equal, some are more equal than others.
It’s really a return to the days when it was mainly only leaders who would file a bill by the second-general-session-week deadline with no text, just a place-keeper in case a late-session problem jumped up and a bill was needed to fix it.
Leaders are often “privy” to what unforeseen problems may be coming, and so need the boxcar flexibility, said Brown.
But lately, my goodness, even freshmen legislators are demanding that staff attorneys open a bill file with a milquetoast title that could mean about anything.
In this age of legislative branch transparency – and it is true that the legislative process of 2013 is much more open to the public than lawmaking was 30 years ago – boxcars are both bothersome for the viewers and a real pain in the butt for staff.
Boxcars are popping up in the final two weeks of each session with meaty changes to state policy, taxation et al.
“We need to make sure that somehow, whether a priority bill or not, bills have an identifiable subject, matter or specificity,” said Brown, committee co-chair and now one of the veteran members of the Legislature.
Sen. Lyle Hillyard, R-Logan, the longest serving lawmaker now in the Legislature, agreed.
“The problem is the proliferation of having bills filed the last day” of the general session deadline “by title only,” said Brown. It costs the Legislature and its staff time and money for each bill introduced.
And as more and more boxcar bills are officially introduced, but are never used by their sponsors, “we end up with nothing; it’s a process we don’t need,” Brown added.
Leaders could ask that a rank-and-file member open a boxcar on their behalf (imagine some of the chest-puffing: “I rise to introduce a bill requested by the Speaker of the House”).
Or there is a current rule that allows any legislator to open a bill file after the filling deadline with two-thirds approval of his or her own body’s membership.
Not mentioned Monday, of course, is the most controversial recent abuse of a boxcar bill – by a member of leadership itself.
In the final days of the 2011 Legislature, then-Executive Appropriations Committee Vice-Chair Rep. John Dougall, R-Highland, used one of his boxcar bills to run HB477.
As is the case with boxcars, Dougall’s original HB477 had no text, and an amorphous short title, when he threw in major changes to Utah’s Open Meetings Act – more closed meetings allowed, more government documents potentially kept secret.
A media uproar ensued; even conservative groups objected.
GOP Gov. Gary Herbert at first returned the bill – rushed through the law-making process – for further work. Then, after it passed again, still under objection from some Republicans, Herbert called a special session to repeal it.
Boxcars – not readily known to many Utahns – immediately got a bad name.
This summer’s action by the Legislative Process Committee is not a direct result of HB477, however.
Rather, it’s the internal problems that boxcars are causing the legislative bill-drafters, and concerns by some of the large 2013 freshman class in the House that’s bringing talk of change.
A more complex problem is what to do about “substitute bills” – that is the procedure also used more and more recently where a bill’s sponsor has a bill that does A, but he then “substitutes” the language in A to make the bill do B – when B may only be tangentially connected to A’s subject.
Fellows said that as observers of lawmaking, his staff has often found it odd that a sponsor – partly as a courtesy – is allowed to substitute a bill just before floor debate.
Sometimes the bill is held for a day – if there is time – so other lawmakers can see what it actually does.
But more and more substitutes are approved for floor debate that contain major policy changes, and without any real understanding by the lawmakers of what the new bill actually does.
Brown noted that a number of other state legislatures don’t allow any floor amendments. If a bill is found wanting, it must be sent back to a standing committee for amendments.
But Utah has one of the shortest general sessions of any state, just 45 calendar days (including Saturdays and Sundays).
And if in the final week or so of Utah’s session no amendments could be made on the House or Senate floors, important legislation could fail or bad law passed – just because of the process.
“We (staff) are often left scratching our heads that a motion to substitute is routinely made without any discussion” on the floor, said Fellows, who has been a legislative attorney for more than 25 years.
Legislators could vote against the motion to substitute, making the sponsor meet with those who want to know what the heck he’s trying to do, or the motion to substitute could be followed by a motion to circle so lawmakers have time to read the changes and see if they even want to accept to motion to substitute.
Committee members will study whether the motion to substitute should be further restricted.
