MACo Legislative Update, Issue 16 – April 25, 2021

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Volume 26, Issue 16

Published April 25, 2021

End of Session Fun & Games. Good Times Had By…

An Update & Unsolicited Perspectives Provided by Shantil Siaperas, MACo Communications Director & Editor of MACo’s Legislative Update

The whispers are no longer just words lost in all that hot air accumulated under the Dome—Senate President Blasdel has proclaimed from high atop his pulpit that they could adjourn by Thursday…THIS week…As in April 29th.

What?!!! I know. Don’t get too excited though. The General Appropriations Act (HB 2, i.e. State Budget), the ARPA appropriations bill (HB 632, i.e., The Beast), and the marijuana bill (HB 701, i.e., Magic Gummybears) are still moving through the motions of the legislative process.

Where Are We in the Process?

Things are winding down. Active bills/resolutions have dwindled to a mere 38 in the House and 41 in the Senate. We’re inching closer to Sine Die, and the pieces of legislation holding up that most beautiful of motions are oh-so-close to the end:

• State Budget: HB 2 is impatiently waiting for the Beast and Magic Gummybears to catch up. Its Free Conference Committee (CC) has been rescheduled three times now, with it currently slated for Tuesday, April 27.
• The Beast: As expected, the House voted to not concur on the Senate’s amendments to HB 632, effectively sending it to a Free CC, which is scheduled for Wednesday, April 28.
• Magic Gummybears: The Senate’s Select Committee on Marijuana Law completed its work on HB 701 last week, and the Senate collectively lobbed it back to the House for concurrence. It hasn’t yet been booked for 2^nd Reading on Monday, but the House convenes at 9 a.m., so the Gummybears will very likely come out to play on a second agenda.

What Happens Next?

We have two scenarios…

• Scenario 1: The House votes to not concur on the Senate’s amendments to HB 701. This will effectively send it to—you guessed it—a Free CC! (I’m sensing a theme here.) A successful “do not concur” vote may have a butterfly effect on HB 2 and HB 632 regarding whether they remain on track.
• Scenario 2: The House concurs with the Senate’s amendments to HB 701. The bill is done, and HB 2 and HB 632 stay the course.

Good news:  Either of these scenarios can end in a Thursday/Friday Sine Die. With a suspension of the Rules, anything is possible. (Look at me being an optimist about a potential early-out, impressive. High five.)

So, What the Heck is a Conference Committee?

Great question! Important answer. (Considerable possibilities.)

When a bill is amended and those amendments are rejected on second reading, the first chamber can 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.

The conference committee is a joint committee consisting of 6 members—3 from each chamber: 2 members from the majority party and 1 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.

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.

The Important Difference Between a CC & a Free CC

The distinction between a traditional conference committee and a Free CC is extremely important, especially when Sine Die is in the Legislature’s crosshairs.

• 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. Any amendments made 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 public, and constituents should be concerned. (DANGER WILL ROBBINS!)

What Does This All Mean?

It’s the end of session, and things are about to get dicey. Keep your smart phone charged and one eye open and on it at all times—no sleeping or blinking for your designated “hawk eye.” Crying is allowed (and sometimes inevitable/always understandable).

During these final days you can feel—and witness—the Dome’s magic spell at its most potent level. People are impatient. Everyone is exhausted and wants to go home. You will hear and see folks act in ways that seem out of character. We might even experience some Legislative Twilight Time.

A plan-of-action—about which we know very little—has been set in motion (perhaps bolstered by the recent long weekend, i.e., “COVID situation”—which was more likely an extended period of negotiations and planning than cleaning and quarantining). The Rules are expected to be suspended, and conference committees can—and some likely will—convene between floor sessions to modify bills while the Chambers “stand at ease.”

Why Do You Care?

I’ll tell you why. We’ve seen conference committee “fast action” many-a-time in the past: A conference committee is appointed ⇒ the chambers stand at ease (i.e. press pause) ⇒ the conference committee convenes and amends the bill (no public comment) ⇒ members return to their respective chambers ⇒ the chambers come back to order ⇒ the conference committee report is added to another agenda ⇒ and the chambers take action. No outsider participation whatsoever. And good luck catching folks on their powerwalk back to the chambers.

In a Nutshell: End of Session + Conference Committee = Little-to-no notice, zero public comment, and not much—if any—time to find and inform Legislators of the impacts that the newly amended bill will have.

In the past we’ve seen 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 public, and constituents are often faced with a whole lot of “take it” when conference committee season rolls around.

Wanna Know What’s Scarier?

As previously mentioned, Free Conference Committees can insert any language into a bill, their only restriction being that any amendments need to fit under the bill’s title. Free CC’s can and do take advantage of this fun-for-them-freedom. They are the mischievous high school boys and girls your parents warn you about, i.e., big trouble. And bills with “generally revised” titles are fertile grounds for bad amendments and unintended consequences.

The danger of a “generally revised” title is that it breaks the code wide open, leaving the statutes susceptible to the intrusion of language from another previously deceased bill. Take a minute and think about all the dead, contentious priority legislation…now look at the bills listed below that are all headed to a Free CC. See all those “generally revise” titles? …Thoughts? Feelings? Let me know. I’m interested…

Bills in FREE Conference Committees

• HB 2, General Appropriations Act: Osmundson (Chair), Smith, Ellis – Jones, Bartel, Caferro
• HB 5, Long-Range Building Appropriations:  Cuffe (Chair), Osmundson, Boldman – Jones, Hopkins, Hamilton
• HB 230, Generally revise emergency and disaster laws:  Howard (Chair), Regier, Sands – A. Regier, Whitman, Funk
• HB 483, Generally revise laws related to the legislature:  Vance (Chair), Smith, Bennet – C. Knudsen, Garner, Harvey
• HB 506, Generally revise election laws:  Hertz (Chair), Fitzpatrick, Bennett – Fielder, R. Knudsen, Running Wolf
• HB 632, Implement receipt of and appropriate federal stimulus and COVID recovery funds: Osmundson (Chair), Cuffe, Lynch – Garner, Bartel, Keane
• HB 640, Generally revise marijuana laws:  Ellsworth (Chair), Vance – Boldman, Hopkins, Tschida, Novak
• SB 191, Generally revise state finance laws:  Smith (Chair), Osmundson, Lynch – Jones, Bartel, Kerr-Carpenter
• SB 278, Generally revise civil liability law:  Hertz (Chair), Fitzpatrick, Boland – Buttrey, Berglee, Farris-Olsen
• SB 316, Generally revise civil liability laws regarding restoration: Fitzpatrick (Chair), Gauthier, Boland (No House members appointed yet)
• SB 354, Revise laws related to land servitudes and easements: Hinebauch (Chair), Fitzpatrick, McClafferty – Usher, Berglee, Bishop

Bills in Regular Conference Committee

• HB 555, Revise civil liability laws on personal property exempt from execution:  Smith (Chair), Osmundson, Sen. Lynch – Jones, Bartel, Kerr-Carpenter

How Do I Feel About Free CCs?

Glad you asked. Free CCs are Free BS, especially the last week of the session, which is most often when they sneak out from the “dark 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., 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,” wha wha wha…

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 people 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.

Free CCs can—and often are—a part of that reputable process, for example, when an important element was inadvertently left out or something is unexpectedly revealed, and language needs to be inserted. This session, HB 2 and HB 632 likely need the Free CC to ensure all dollars are appropriated in the most suitable places. THAT makes 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 this practice is nothing short of disappointing.

To be fair, not every Free CC conducts business byway of Frankenstein-ing bills together—many are entirely honorable and result in respectable compromise. But when one pops up that abuses the freedom the Free CC provides, 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 it can all be undone with a swift trip to the Free CC. Not cool.

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

But if the restoration of dead legislation occurs via a 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.

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

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

And Don’t Forget…

If you find yourself on uneven footing during the legislative session at any time, no worries. We’re here to help keep you apprised of what’s happening on the hill. Every week until Sine Die during these trying and perplexing times, we’ll be releasing a new issue of the MACo Legislative Update (linked below and above).

Each issue always has an up-to-date session calendar, an easy-to-print bill hearings schedule for the upcoming week, and the status of bills we’re watching or in which we’re actively involved. Pro Tip: Our website’s hearing schedule will be updated daily as the week progresses and new hearings are added, so be sure to check that out. It also has links to testify remotely and/or submit written public comment.

Don’t forget to check out the bills section, where you’ll be able to follow the status of MACo’s legislation, as well as track the growing list of bills in which we are monitoring and/or actively participating.

Click the button below to check out the new issue.

For other pertinent information regarding the legislative session, visit the policy section of our website.

See you either virtually via the internet highway or in the halls!

PS: 13 legislative days remaining

(The Legislative Update is linked below.)