MACo Legislative Update, Issue 11 – April 3, 2023

The upside is down…

Well, hey there MACo Folks!

This week marks week 1 of the last month of the 68^th Legislative Session, and as always, big things are happening, including HB 2 (the State’s big surplussed budget bill) hitting the Senate Finance & Claims Committee (Wednesday).

Also of significance, the House and Senate will convene this morning for all-day floor sessions to meet another transmittal deadline (watch here). They’ll have multiple boards with periodic breaks for the Appropriations and Finance & Claims Committees to convene.

Yes, folks, we’ve made it to the fourth quarter, so we expect that you can expect things to get dicey…er. So keep your smart phone charged, with one eye open and on it always—no sleeping nor blinking allowed. Crying, however, is permitted and often inevitable (always understandable).

We have a hot dumpster full of fire to go through, so let’s jump right into it…

But first…

Rapid Fire Recap

Last week, committees were working toward this week’s “Money Bill (and bills proposing referenda) Transmittal” deadline, which is tomorrow, Tuesday, April 4^th, the 67^th Legislative Day (LD). Originally, transmittal was scheduled for today, April 3^rd, but the Legislature took Saturday off, which bumped it forward a day.

Since General Bill Transmittal 4 weeks ago (March 3^rd), the Legislature has introduced 228 bills and had 991 bill hearings—not counting those that will be heard today after being rereferred from the Floor to their respective money committees for a quick and run-through of the fiscal notes.

FUN FACT: 711 of the 991 bill hearings from the previous 4 weeks were held within in the last 2 weeks—that’s 72% in case you were curious.

Several bills have been tabled, including SB 542 (Constitutional amendment to limit property values and property taxes) and SB 562 (Constitutional amendment regarding term limits for other public officials/judges). These legislative proposals, and many others, will “die in the process” if they don’t transmit to the other side by the end of LD 67.

But then we have other significant pieces of legislation that are still alive and well, like HB 865 (Provide for a local government expenditure limitation & penalties), which will be heard on the House Floor today (MAYBE tomorrow).

REMINDER: Reach out to your Representative here and urge them to “vote no” on HB 865 (see last Wednesday’s alert).

Be sure to check out our Legislative Update for the status of all bills.

Where we’re headed…

The sunny side

The good news is that we’ve made it to the point where actual bills enacting legislation can no longer be introduced. This means we essentially know where we stand in terms of “what’s out there.” And in a sea filled with sharks, electric eels, and barbed sting rays, it’s always nice to know where you can dock your tiny rapidly sinking paddle boat, put a few patches in the hull, and dab the cold sweat from ye brow (things went a little “Pirates of the Caribbean” right there. Sorry. Long night.)

Along with this unusually positive information, I’d like to add one more ray of sunshine to your day:  From this point forward, we’ll only be seeing study bills introduced. (Go ahead, do that happy little shimmy in your chair.) HOWEVER, we still need to ward off bad amendments. (Oh look—there’s that other shoe! And you thought it wasn’t going to drop…)

Amendment Transmittal

Now that we are rounding the corner on Approps and Revenue Bill Transmittal, the Legislature is headed into their first “Amendment Transmittal,” meaning that amended General Bills (those that don’t generate or expend money) must transmit back to the chamber of their origination by LD 73, i.e., April 13th (next Thursday).

Caveat: If the Legislature is in fact pushing for an early Sine Die, I suspect they’ll be moving all bills regardless of their category (general vs. money).

Okay. Deep breath. With all of this amending that’s about to take place, it’s finally time talk about that which we never wish to speak and always dread:  Conference Committees…

What is a Conference Committee?

Great question! Important answer. (Considerable possibilities.)

A “Conference Committee” (CC) is a joint committee consisting of six members—three from each chamber: two members from the majority party and one from the minority. With input from the majority and minority leaders, the Senate President and Speaker of the House appoint the committee members from their respective chambers.

CC = 3 Senate Members (2 Majority + 1 Minority) + 3 House Members (2 Majority + 1 Minority)

When do they come into play?

Conference Committees are created when a bill is amended in the opposite Chamber and those amendments are rejected on second reading. The first Chamber can then ask the other Chamber to “recede from”/withdraw its amendments. OR, more likely, the first Chamber will ask for a conference committee to resolve the differences between the versions passed by the House and Senate.

IMPORTANT: A Conference Committee meeting is an open meeting but not a public hearing. The committee must keep minutes and must allow the public to attend, but it does not accept public comment.

And then there are Free CCs…

Free Conference Committees (Free CCs) are similar to the standard CC in form and function, but they have one very vital difference that is especially important to keep in mind when Sine Die is in the Legislature’s crosshairs (which is where we’re headed):

• A Conference Committee may only accept, reject, or amend the disputed amendments. (Semi-safe.)
• A Free Conference Committee may propose amendments to a bill in its entirety and is not confined to debating a particular amendment. (Not even “kind of” safe.)

Any amendments made in Free CC must be within the scope of the title of the introduced bill. This makes the bill’s title a crucial factor in whether or not lobbyists, association advocates, stakeholders, the participating public, and constituents-calling-from-home should be concerned.

The worst offender? “Generally revised” titles. These bills are the most fertile ground for planting seedy concepts leading to unintended consequences. How? Because “generally revising” breaks the code wide open, which leaves the statutes susceptible to the intrusion of language from another previously deceased bill.

Proceed with caution…

You’ve now learned that Free CCs are “free” to insert any language into a bill, the only restriction being that the amendments need to fit under the bill’s title. Free CCs can—and historically, do—take advantage of this fun-for-them-freedom (at least once per legislative session).

My advice?  When this gain is engaged, grab a helmet, strap-in, and prepare for impact. Because these mischievous friends that your parents (me in this badly written metaphor) consistently and blatantly warned you about, have turned the key, ignited the engine, and are speedily driving your hopes and dreams (of making it out of the session with your mind intact not too many disfiguring injuries) right into the sandstone and granite exterior of the Capitol building.

CC & Free CC “Fast Action”

CC and Free CC “fast action” is something we’ve seen many-a-time in the past, and it’s predestined to become more prolific as we march closer to Sine Die.

This “fast action” usually proceeds as follows: A CC/Free CC is appointed  ⇨  the Chambers stand at ease (i.e. press pause)  ⇨  The Committee Members exit their respective Chambers ⇨ Impacted stakeholders and lobbyists from the rafters haphazardly and anxiously scurry behind  ⇨  The CC/Free CC convenes and amends the bill  ⇨  Impacted stakeholders and lobbyists stare blankly in dismay  ⇨  The CC/Free CC adjourns and Members return to their respective Chambers  ⇨  Impacted stakeholders and lobbyists defeatedly drag themselves back to the rafters  ⇨  The CC/Free CC report is added to another Floor Agenda  ⇨  The Chambers come back to order  ⇨  Impacted stakeholders and lobbyists wait with bated breath  ⇨  The Chambers take action  ⇨  The bill—more often than not—passes, as newly amended.

ALL of this happens with absolutely ZERO outsider/public participation. And good luck catching folks on their powerwalk back to the chambers.

IN A NUTSHELL: End of Session + CC/Free CC = Little-to-no notice, zero public comment, and not much—if any—time to inform (let alone find) Legislators of the impacts that the newly amended bill will have.

In the past we’ve seen CC/Free CC fast action result in deleterious impacts to local government funding (i.e., modifications affecting the Entitlement Share) as well as redirection of 9-1-1 dollars to non-9-1-1 allowable expenses (in turn leading to an unhappy Federal Communications Commission).

Try as we might, lobbyists, association advocates, stakeholders, the participating public, and constituents-calling-from-home are often faced with a whole lot of “take it” when CC/Free CC season rolls around.

In conclusion…

How do I feel about CCs & Free CCs?

Glad you asked. CCs aren’t ideal, but I get it. Free CCs? Are free BS. They especially make me even more sailor-sweary the last week of the session, which is most often when they sneak out from the dimly lit corner of bad ideas. (Blink and you’ll miss ‘em. Blink again and you’ll be knocked upside the head with one’s swiftly made decision, i.e., the “Free CC Report” and subsequent vote.)

I understand that Free CCs are part of the game. But just because they exist in the Rules—that the Legislature sets for itself—doesn’t make them fair. And I know, “life isn’t fair”…Yes. I see and hear you, tiny violin.

But the Legislative process isn’t “life.” It’s a method of creating law meant to be arduous, lengthy, and difficult for the purpose of making it the fairest it can possibly be.

The Legislative process is designed for full vetting, and many say it’s designed for killing bills: legislation is meant to be circulated, beat up, poked, prodded, and tweaked through maddening amounts of public comment, debate, and stakeholder input from folks on various sides, with contrasting opinions and differing perspectives on numerous issues.

Then if a bill survives, you can see that everyone has given something, and no one is jumping for joy because “they won.” And that which is born from all the blood, sweat, and tears is generally good legislation. And good lawmaking. Something to be proud of.

To be fair, Free CCs are often part of the aforementioned-reputable process.  For example, new language may be necessary when an important element was inadvertently excluded, or new information is unexpectedly revealed.

Usually HB 2 (the big budget bill) will end up in a Free CC because it’s enormous, and something is always overlooked that needs addressing. Ensuring that all dollars are appropriated in the most suitable places is good legislating that makes perfectly good sense.

Unfortunately, Free CCs are also used to undermine good lawmaking. Allowing a dead bill—killed fairly via public comment, stakeholder input, and constituent outreach—to rise again via the “Free CC fast action” practice is nothing short of disappointing.

Again, not every Free CC conducts business by way of Frankenstein-ing bills together—many are entirely honorable and result in respectable compromise. But as the years have gone by, I’ve seen the tool abused too many times. And each time my faith in the legislative process hits rock bottom, and I question the entirety of it all—endless hours of tireless work from countless groups of people, none of it mattering in the end, because everything can be undone with one swift trip to Free CC town. Not. Cool. At. All.

I sincerely hope with all my little policy-loving heart that I’m just jaded. I hope the Force remains strong amongst the legislators this session, and we do not see the dark side of the Free CC applied over the course of the upcoming final weeks.

But if the restoration of dead legislation occurs via a large cut and paste amendment, be prepared to pray, because the deals are done, the votes are whipped, people are compliant, and it’ll take a miracle to stop that Free CC freight train.

So have your whiskey and Advil at the ready, folks. The upcoming weeks have pain potential, level E-LEV-EN.

(Anyone seen my mind?  No?  K.  Maybe next week…)

PS — 24 Legislative Days remaining…