Analysis: Closed-door dealmaking undermines the legislative process

Introduction

A simple Google search will produce a map and directions on how to find the state capitol, where staffers can help citizens locate legislative chambers and hearing rooms. But this seemingly easy access hardly guarantees that what takes place in open meetings is a reliable predictor for the laws that will govern the state.

Aside from regulations on legislators’ potential conflicts of interest, the Legislative Accountability category also assessed the openness of each state’s lawmaking process. These corruption risk indicators are more difficult to judge by face value, so state reporters turned to statehouse veterans who had been trying to access and influence the legislature. In state after state, sources reported that it is often hard to actually observe the sausage as it is being produced, which helps to explain the oft-surprising flavor it takes on when finally released for public consumption.

Several states which had relatively solid grades in the Legislative Accountability category were found to have a troubling lack of transparency in terms of actual lawmaking. California received a 75 percent C grade for the category, good enough to tie for seventh place ranking among the states. But on the indicator judging whether the state’s “legislative process is sufficiently transparent to allow citizens/CSOs (civil service organizations) to monitor the legislative process and provide input or changes to bills,” the state’s practices received a failing grade.

State reporters Lorie Hearn and Carol Goodhue interviewed lobbying experts who explained the difficulty in tracking legislation. Peter Scheer of the First Amendment Coalition cited the frequent usage of a trick known as “gut and amend,” in which amendments which are tacked-on after a bill has been debated and passed through legislative committees.

“The amendment can sometimes be more important than the law itself; it can be a whole new law, and those are the things that get passed in the middle of the night,” Scheer said.

Another source, former chief state economist Philip J. Romero, called the process a “kabuki theater,” with decisions ultimately being made by “the Big Five,” referring to the legislative leaders and governor, and almost always behind closed doors. In assigning the state a 50 percent score on the indicator, Goodhue and Hearn wrote that these backdoor dealings manage to undercut any efforts at transparency.

“Budget bills in particular are subject to last-minute changes behind closed doors even though those negotiations may have been preceded by extensive public hearings.”

Just east of California, Nevada’s legislative process is similarly murky – though in that state, the flaws may actually stem from a serious deficiency in law. State reporter Joan Whitley found that the legislature is “expressly exempt from the state’s open-meeting law.” Bob Coffin, a former state senator and current Las Vegas City Councilman, noted that the exemption is in place because the legislature is unable to give sufficient notice of scheduled meetings during the crunch time at the end of each session.

As the sessions wind down, “things start to be done informally” as a matter of course, Coffin said, explaining that legislators are trying to make progress before the legislative deadline. But he went further, saying that the secrecy in Nevada lawmaking is more than a practical matter, and that party leadership often seizes control and dictates final decisions.

“As a result,” Whitley wrote, “significant negotiating amongst lawmakers can take place in private legislative offices, well out of earshot of the public as well as legislators who aren’t in their party’s elite.”

Party power is also a constant threat to legislative transparency in Georgia, which ranked 50th overall in the State Integrity Investigation and received a 57 percent ‘F’ grade on the Legislative Accountability category. Reporter Jim Walls found that the legislature does an enviable job of making some aspects of the process transparent, with bills and votes posted online, along with streaming video of both legislative chambers.

The problems occur when it comes time to make a decision. In assigning Georgia’s 25 percent score on Indicator 112, Walls cites a recent example when the state’s Senate Republican Caucus took negotiations behind closed doors. In debating a controversial measure that would allow the sale of alcohol on Sundays, the 18-member caucus met in secret, effectively hiding the process and blocking passage of the bill.

“Since the caucus meeting was closed, constituents could not be certain how their senators had voted,” Walls wrote. “Public pressure forced the caucus to reconsider — again in a closed vote — and the bill was eventually passed into law. The fate of less controversial bills continues to be decided in private caucus meetings.”