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For good and bad, process used to shape bill substance

Legislative hijinks continue unabated as the 2009 Regular Session passes its halfway point in Baton Rouge, with legislators looking for ways to use process to affect substance creating winners, losers, and everything in between.

By this time in the session, with introduction of bills long over, legislators must get creative if some issue grabs their attention and they want to get it into the process with a chance to become law. Or, they can try the same tactic to resurrect a stalled measure either to give it new life, or to counter another. This can be done in committee easily (as long as the informal custom of the author giving permission is followed) and with certainty on the floor, so long as the presiding office concludes the amendment is germane and/or the chamber declares it germane.

A winning example concerns HB 719 by state Rep. Bubba Chaney. This bill became a vehicle to include the state’s deal with the New Orleans Saints to shovel money in the direction of the team’s owner to entice the team to remain. Instead of the straight-up giveaway of the past decade, now at least the state gets something back in the form of leased space for state offices that admittedly is sorely needed. Amended in committee, it passed the House without a lot of trouble.

The journey of HB 138 also provides another lesson. Most legislators aren’t exactly known for their courage when it comes to actions on bills, displaying a distinct preference for trying to have their cakes and eat them, too. This means privately they may feel one way about a bill and wish it a certain fate, but publicly they will act and say differently if they can find a way to have the fate they desire for it fulfilled in another fashion.

Originally, the bill got bottled up in committee on a close vote, but author State Rep. John LaBruzzo’s scaled down its scope to require medical drug testing for a narrow range of public entitlement recipients. Yet this version looked like it might garner a fight when state Rep. Walker Hines objected originally to its passage. But he relented when he learned it bill likely would have to head to the House Appropriations Committee as it would incur an expense of greater than $500,000, and out the bill sailed from committee.

The reason why opposition evaporated was Appropriations, in this year of tight budgets, probably would spike the bill on that basis. This gave Hines and other opponents the perfect excuse to not oppose the bill so they can claim they are for not handing taxpayer dollars to drug addicts even as they defeated its previous incarnation and may have stopped this one as well. Thus, they rely on process to give them results they actually want even as their actions try to convey something different.

(This is the first time I have mentioned the freshman Hines since a post last year where I called him “liberal” on the basis of the unmistakably leftist tilt to a number of bills he had introduced that surprisingly went nowhere. He protested the label in a note to me, and while I explained to him how richly he deserved the appellation from the content of his legislation, I promised at the next available opportunity that I would base my next description of his ideology on his score from the year-end scorecard I compile for my Louisiana Legislature Log. The time is here, and with a 2008 score of 70 for now I officially change my assessment of Democrat Hines to call him a “moderate,” and almost borderline conservative. Interestingly, the previous post also addressed Hines’ actions in the context of trying to convey an image of something he was not.)

Losing in the process, however, was House Speaker Jim Tucker who tried to slip an amendment onto another uncontroversial bill, HB 892 by state Rep. Michael Jackson. It would have had the effect of negating the substance of HB 841 by Rep. Avon Honey, who pulled off the most prominent example of this genre in years when he took his innocuous bill and slipped into it an amendment on the floor that would force the state to accept federal spending bill money that would expand unemployment benefits and turn them from an insurance into a welfare program.

But unlike when Honey caught conservatives napping, liberals were attentive on this occasion and made a germaneness request. With Tucker making the motion, he could not be in the chair for the moment held by Speaker Pro-Tem Karen Peterson, one of the liberals’ own and an HB 841 supporter. The subject matter of Jackson’s bill, information provision about unemployment insurance, was not that divorced from the amendment as both dealt with the disposition of unemployment insurance benefits, but Peterson ruled it nongermane.

This brought a move to override the speaker’s ruling. But Tucker counseled not to do so, even though a clear majority of the House appeared to favor the amendment and opposed HB 841 in its current form, arguing to uphold the ruling preserved the “process.” The override attempt was defeated.

While Tucker as speaker would have an interest in fending off challenges from powers he can exercise, in this case he needed to act otherwise. Honey’s amendment had not been germane yet went through, and it clearly was the will of the chamber that his language not be passed out of the House. Slavishness to process should not be the end-all when a basic tenet of democracy, majority rule that does not violate fundamental liberties, is subverted as a result.

Process is important to observe in understanding substantive impact of legislative actions, but it should not be used as a substitute for it.


New Ethics Board, but continuing confused attitudes

It seems you can change the players but you can’t change the mentality when it comes to Louisiana’s Board of Ethics.

At its May meeting, several board members queried the chairman of the House’s Government and Administration Committee state Rep. Rick Gallot about the possibility of going back to something like the system in place until the end of last year which made the Board the prosecutor, judge, and jury of alleged ethics violations. The new system allows the Board to levy charges, and then professionals adjudicate the case from there.

All of the members of the Board save one were appointed in the last few months. This is because in part many previous members thought the changes stripped them of power and prestige and so they lost interest in service and quit it, coupled with the fact the burden to serve increased with more stringent financial disclosure laws also applying to the Board.

You would have thought the new members would bring a new attitude congruent to these changes, but the comments from its Chairman Frank Simoneaux and Vice Chairman Scott Frazier makes one wonder about that, comprising a confusing rehash of old, inadequate arguments. Simoneaux claimed that the new system might not work well because it featured “two boards in one unitary ethics system” and implied its members, having taken office prior to the changes, were not prepared for such a thing, and Frazier said the new system could be inconsistent and thought there would be a lack of expertise in the adjudication process.

Clearly, these officials are unfamiliar with the whole debate around the issue last year and as well what many other states do (and thereby obviously have not read the commentary in this space), which is unfortunate and derelict since they are the top officers of the Board. Let’s go through it again, beginning with Simoneaux’s comments.

It’s a strange argument to assert the board members were getting procedures switched on them in a confusing way. Almost all of the old board resigned by the middle of last summer so the appointments were made in the fall, technically a couple of months prior to the new procedures coming into effect. But the board didn’t do anything under the old rules, and any incoming member who did not know about the new procedures was negligent given they were known to be on the horizon.

Also weird from the comments is the contention of “two boards.” The new system largely replicates the typical civil and criminal system that features (for all non-trivial accusations) a grand jury comprised of non-expert citizens which fields requests for indictments by prosecuting authorities, and decides whether the accusations merit a trial. Professionals perform the remainder of the process in most cases, with a jury trial of (different) non-expert citizens only occasionally making the final decision of innocence or guilt.

Under the new system, the Board acts as the grand jury. Administrative law judges, who are selected impartially on a case-by-case basis and are required to have considerable legal experience, conduct the trials and make judicial decisions. Simoneux should know that and where there is a board in addition to the Ethics Board itself is a mystery to which perhaps only he knows the answer.

Frazier also needs to review the information about the process. It is as much mystery how he can think the political appointees from mostly non-legal backgrounds to the Board are going to have more expertise in this area of law than law judges with law degrees and experience who will be required to study this area of the law. If anything, the increased professionalism will lead to greater consistency.

The fact is, the new system is considered best practice and a number of states use a similar one for their ethics adjudication. There’s no reason to reverse a process which barely has begun and that the newcomers suggest as such is not only curious, but indicative that they have a ways to go in understanding what they actually need to be doing and the right spirit in which to do it.


If state won't, citizens must push school board reforms

Louisiana State Superintendent of Schools Paul Pastorek’s ideas on school board reform need a serious hearing, if not outright enactment, this session.

Pastorek is going to get introduced in the upcoming legislative session bills that call for switching the paying board members salaries in favor of per diem, limiting the number of terms they can serve consecutively, and requiring them to have at least a high school diploma to serve. Pastorek also wants to give more power to local superintendents when it comes to hiring and firing. He argues that these would reduce the influence that politics has that can interfere with quality educating.

That supposition seems plausible. Some board members in some places have served over two decades, and some or others have boards with little turnover. This could produce insular policy-makers too caught up with long-standing relationships within the district. Regular pay regardless of activity may be too encouraging for those more interested in wielding power and drawing a paycheck than people willing to spend much time and effort in trying to make good decisions and policy. Those who haven’t even matriculated from high school may not understand what comprises quality education. Too much ability of boards to intrude into personnel matters hampers optimal administration of education.


The Meaning of Memorial Day

This column publishes every Sunday through Thursday around noon U.S. Central Time (maybe even after sundown on busy days, or maybe before noon if things work out, or even sometimes on the weekend if there's big news) except whenever a significant national holiday falls on the Monday through Friday associated with the otherwise-usual publication on the previous day (unless it is Independence Day, Christmas, or New Year's Day when it is the day on which the holiday is observed by the U.S. government). In my opinion, there are six of these: Memorial Day, Independence Day, Veterans' Day, Thanksgiving Day, Christmas, and New Year's Day.

With Monday, May 25 being Memorial Day, I invite you to explore the link above.