Peter Callaghan: Legislating behind closed doors becoming too common

peter.callaghan@thenewstribune.comFebruary 9, 2014 

Lots of stuff gets introduced in the Washington Legislature that is never heard from again.

Most of the time, that’s OK. But one bill that should have at least gotten some discussion was House Bill 2369. The measure would have imposed on the Legislature the same transparency requirements that local governments and state administrative bodies already face.

The House and Senate would have to follow basic notice and waiting periods before acting on legislation, for example, under HB 2369 and a Senate version filed Friday. The bills also would require that all legislative committees be open to the public.

The Legislature regularly ignores or suspends its notice rules. It also often denies public access to significant committee action by recessing for “committee caucuses.” The members divide by party and meet privately to discuss bills and count heads.

Local government councils and state agency boards can meet in secret under the state open public meetings law but only for specific reasons expressed in that law. Secret ballots — even straw polls — are illegal, and governing bodies must conduct all “deliberations, discussions, considerations, reviews, evaluations and final actions” in public.

The point of the law is that the public shouldn’t just get to watch the final vote, the public must also be able to see the process that led to that vote.

The House and Senate set their own rules and aren’t subject to the open meetings law. But both bodies’ rules require the “consideration of or vote on” any legislation and the “deliberations of any committee” be open to the public.

What legislative leaders try to argue is that the public does have access to the final vote and the debate held when all members return to the same room. But what is actually available is a rehearsed and often sanitized version of the discussion already held in private. And the vote is only a confirmation of votes already held in private.

These rules are not subject to court review. But the way the House and Senate interpret their own rules – that they don’t cover all committee votes and all committee action – is different from how the courts have interpreted identical words in the public meetings act. “Action” under that law doesn’t just mean final action, it means all action.

Apologists quickly argue that the committee caucuses are just a version of the floor caucuses that have been around since statehood or before. Members of each party go behind closed doors to discuss party strategy and to discuss and count votes on bills. But unlike with committees, the rules of the House and Senate don’t require that floor votes, considerations and deliberations be held in public. The only binding requirement for open floor sessions is in the state constitution, which says the doors of each chamber “must be kept open, except when the public welfare shall require secrecy.”

But since the same rules that require committee action to be open are silent on the floor votes and deliberation, floor caucuses don’t violate the House and Senate’s own rules. Closed committee caucuses, however, arguably do.

Just because closed-door committee caucuses have become common practice doesn’t make them a good idea. Local governments are able to legislate and govern in public quite ably. Certainly the House and Senate can as well.

In the past, such closed meetings were held only by budget committees and only on spending amendments that might bust the budget. They are now routine for even the most mundane legislation. This expansion of secrecy that began in the House when that body was tied 49-49 in 1999 is now spreading to the Senate.

HB 2369 didn’t get a hearing or even a staff report. Maybe that is because its sponsors come from the conservative edge of the minority Republican caucus. Maybe it is because the bill likely violates the state constitution, which says the House and Senate each set its own rules.

But it at least should have been allowed to trigger a discussion among legislators and the public as to whether this is what open government is supposed to look like.

Peter Callaghan: 253-597-8657 @CallaghanPeter

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