Practically, theoretically, special session a bad idea

Bad reasons inherent to the request recommend against the Louisiana Legislature calling itself into special session under the terms set forth by state Rep. Dee Richard. Let’s start with the practical and wind up with the theoretical that by itself that should bury the idea.

In the proposed call, Richard asks:

• To legislate relative to requirements for legislative approval necessary prior to the closure, privatization, or reduction of the occupancy, personnel, services provided, or level of funding of a state-operated healthcare facility or human services district.
• To legislate relative to requirements for submission for legislative approval of any plan or proposal intended to result in the sale of any LSU system hospital; and relative to requirements for submission for legislative approval of any plan or proposal intended to result in signing or executing a cooperative endeavor agreement with any private provider to operate any LSU system hospital; and relative to requirements for submission for legislative approval of any plan or proposal intended to result in any level of reduction of services below those provided on June 30, 2012, at any LSU system hospital.
• To legislate relative to requirements for legislative approval necessary prior to the closure, privatization, or reduction of the occupancy, personnel, services provided, or level of funding of a state-operated correctional facility.
• To legislate relative to the reestablishment of correctional facilities, healthcare facilities or human services districts, and the funding thereof, as provided for in House Bill no. 1, as enrolled, of the 2012 regular session.

This would begin Nov. 26 and last as many as 15 days. That means the session could cost taxpayers as much as roughly $1.2 million, which doesn’t exactly commend itself in this situation where the items come as a reaction to cost-savings moves in a money-strapped state. Still, a supporter of these ideas could argue it would be worth it in order to get these into law.

Except that they have about zip chance of that happening. With Gov. Bobby Jindal signaling opposition to this agenda, naturally so as it would reduce dramatically implementation power of the executive, it would take two-thirds majorities in both chambers to pass anything over a gubernatorial veto. Note the kitchen-sink appearance of the items, covering even the most minute executive discretion over the most consequential state-owned facilities – prisons, hospitals, and clinics. The broad scope tactically is used in the phrasing of calls in order to give the widest latitude, where in fact policy that would emerge could be much narrower.

But it also is broad in order to capture support. When you consider the districts (basically rural for prisons, urban areas mostly for the health care facilities) involved, they might represent territory of half of all sitting legislators. This is an attempt to exploit “logrolling” – involving as many interests as possible in an interconnected way, maximizing the incentives for individuals to save individual interests by creating conditions to have these seen in an additive way that combines them a majority. If enough of them are maneuvered into the same boat, each will work together to keep them all afloat by passing the legislation.

Still, assuming these legislators are the ones most enthusiastic to pass measures soon that prevent downsizing, if not closing, of state facilities in their districts or home towns, they would not be enough numerically to override vetoes without some others who have no vested special, local interest in sparing cutbacks. Indeed, the latter may welcome these measures because implementing these means this avoids cuts in their districts and/or to other priorities statewide they see important. In fact, probably more than a few of the former in the affected districts, those who understand greater efficiency needs to come to smaller state government, silently approve of the retrenchments. To their constituents, they may generate lip service in deploring the cuts, but to themselves thank Jindal for doing the dirty work and catching the heat while they can claim for reelection purposes they fought it. They are the last people who want to see a special session like this because then they would have to go on the record with the choice of either exposing their secret desire or casting votes personally obnoxious to their beliefs.

That is, if the point has not become moot for a number of them. As of this publication date, it would take around 75 days for the first of these bills, if they even got that far, to come back vetoed by Jindal for an override attempt. A lot can happen between now and then where some of what the Legislature would try to do with these measures to embed itself much more intrusively into the implementation process to oppose will have occurred already, making moot these ideas for those instances. That being the case, if some of what they don’t want could happen anyway before they act, then it makes much more fiscal sense to wait until the next regular session to accomplish these, some legislators may conclude, thereby eroding support for a special session.

In short, this special session, if it got that far, likely would spend money the state doesn’t have and produce nothing lasting, other than as a feeble attempt of a few to express rage subsidized by taxpayers. As convincing as these practicalities may be to discard the idea, the real argument against comes from theoretical considerations.

It’s simply never a good idea to allow an institution deliberately designed as a part-time, broad policy-maker to involve itself in a detailed way in implementation decisions. The very DNA of the Louisiana Legislature is to have individuals closely connected to their communities to reflect those interests in a specific way while finding common ground for the broader state interest. The latter purpose intentionally should provide large leeway in implementation by those who by design are full-time employees who represent foremost a holistic, statewide interest – the constitutional executive branch officers.

This does not mean that the Legislature should surrender completely its oversight responsibility in implementation. What it does mean is the system works best when both leave the maximal amount of discretion in allowing each to perform its duties – the legislature making policy through legislating, the executive through execution of those laws – and to check each other to maximize the chances that policy gets made in accordance with the people’s wishes.

For example, the proper approach here would be not to make permanent a regime where whenever the executive branch uses discretion on these facilities the Legislature automatically gets injected into the process. This chaotic introduction invites through the logrolling phenomenon the promoting of selfish, local interests over a measured statewide concern. It raises the specter of zombie-like institutions, state employment magnets that waste money, that never die regardless of how times change because there are enough of them in enough districts, if the Legislature or even a part of it gets veto power over these decisions.

Instead, the struggle between the branches in these matters should be specific on a case-by-case basis, where maximal discretion allows each branch to decide when to intervene. For example, when appropriating, the Legislature, if enough will is present for the majority or super-majority required (to overcome a line item veto), simply can designate as mandatory that a minimum amount of money at a level of its choice must be spent on a facility. This provides the opportunity for the Legislature to initiate policy direction that guides, but does not itself undertake, implementation.

To sum up, introducing further Legislative interference into the details of implementation simply is a bad idea in governance, of which the state has enough already of this in these very areas of health care and prisons. Not only should no special session with this agenda occur, much less pass then such measures, but also they need not be taken seriously as legislation introduced during any regular session as well.