In 1972, when DFLers captured control of both houses of the Minnesota Legislature for the first time in state history, they promised to end closed-door meetings at the State Capitol and “open state government to the people.”
And, for a while, they did just that. The two houses adopted rules banning closed meetings of conference committees, spending committees and rules committees. They provided for recorded votes on all floor amendments. They opened the press galleries to cameras. And, for the first time, they made copies of bills available to the press and public for the asking.
More recently, thanks to the Internet, the legislative website has provided the public with quick access to bills, committee schedules, video of meetings and floor sessions, and much more.
Former Speaker Robert Vanasek, a New Prague DFLer who took office in 1973 and served in the House for 20 years, says the new rules adopted in 1973 represented “a dramatic change” in terms of openness and transparency in the legislative process. For a time, he recalls, the DFLers and Republicans in the two houses even held open caucus meetings.
However, House and Senate caucuses long since have been closed. And many key legislative decisions still are made out of public view – before they are trotted out for formal approval. The new $91 million Senate office complex, which was slipped into the last tax bill and approved without any public hearings, is the most blatant example. It’s the kind of political sleight-of-hand that can only erode public trust in the Legislature, which reconvenes Feb. 25.
David Schultz, a political science professor at Hamline University and a veteran legislative observer, believes that there has been considerable backsliding since the 1973 rules changes. Somewhere in the late 1980s or early 1990s, Schultz says, the Legislature “peaked in terms of openness and transparency. Since then, I think it has kind of retreated on lots of different scores.”
Vanasek does not disagree. For whatever reason, he says, “I don’t think legislators are held to quite as high a standard of openness today” as they were in the 1970s and 1980s.
Spending by committee
Prior to 1973, the Senate and House finance committees would hold public hearings on state agency budget requests, then retreat behind closed doors to go over the requests line by line and write their appropriations bills.
The new rules required that all committee meetings be open to the public. Since then, however, committee chairs have adopted the practice of conferring privately with members of their party, individually or in small groups, to assemble a draft bill that they think can pass in committee.
Then chairs present their bill to the committee in a public session, and members have a chance to offer amendments. The bill “sometimes gets changed and oftentimes does not,” according to Bill Marx, chief fiscal analyst for the House and a longtime legislative staffer.
Patrick McCormack, House research director, believes such a process is unavoidable if a finance committee is going to assemble a balanced budget bill that fits within the spending target for the agencies and programs within its jurisdiction. (Some 13 House committees, and nearly as many Senate committees, assemble the omnibus spending bills that, together, constitute the state’s two-year budget.)
“If the chair doesn’t provide a starting point, you are never going to get to an end point,” McCormack says. “Nonetheless, the chair’s bill is amendable, it’s amendable all the way through the legislative process and it does get amended.”
More omnibus bills
Within recent years, the Legislature also has developed the practice of assembling more omnibus bills on policy matters, bundling multiple bills that were introduced separately into a single measure dealing with topics such as crime, drugs, liquor, gambling and data practices. Less charitable observers sometimes refer to these bills as “Christmas trees,” with members attaching their favorite ornaments.
Typically, committee chairs will hold public hearings on all bills whose authors request one and then entertain a motion to lay the bill over for possible inclusion in the committee’s omnibus bill. Sometime later, the committee chair will produce a draft bill that magically incorporates some of these bills and discards others. The result is that there’s no up-or-down vote on each proposal.
“Committee chairs know they have to pass a bill out of committee, so they have a bunch of conversations. They may even get together as a group,” says Bill Blazar, a veteran lobbyist for the Minnesota Chamber of Commerce. “But those are all private conversations. That kind of important deliberation is pretty much private.”
In many cases, the practice makes it easier to pass a bill that might not survive on its own. “Anytime you put 20 things into one bill, a member might vote for it even if he or she disagrees with one or two (items),” says Marx.
In Schultz’s view, the practice is unhealthy. “There’s a lot more log-rolling than there used to be in terms of bundling bills together. … It’s basically a way of being able to sneak things in.”
However, McCormack argues that omnibus bills also have a virtue. “If we are going to make policy in the liquor area, for example, we’re better off doing it coherently in one bill rather than incoherently in 20 bills.”
McCormack also says the growth in the number of omnibus bills has been fueled by executive branch agencies. Many agencies “build omnibus bills in many of their areas. …What comes to us from the governor’s office in terms of omnibus bills is a much longer list,” he says.
‘The third house’
One of the most powerful institutions of the Legislature is the conference committee, prompting some observers to describe it as “the third house.” It is the mechanism that the House and Senate use to negotiate their differences on nearly all major bills.
And all decisions are final. Once a conference committee completes its work, the two houses can only accept or reject the final bill; no amendments are permitted. Since most conference committees complete their work in the final days of a legislative session, there is enormous pressure on the two houses to accept the compromises forged by Senate and House negotiators.
Conference committees once were relatively uncommon, with just 19 established in 1963. By 1993-94, the number had ballooned to 135. The number of conference committees has declined somewhat since then, perhaps because there are so many more omnibus bills encompassing multiple individual bills.
Meetings of conference committees are, by rule, open to the public, but most of what goes on there is an elaborate charade. Conferees will openly review the differences between the Senate and House versions of the bill, and perhaps do a little public posturing about why their chamber’s bill is better. However, the real negotiating and horse-trading still takes place in private, principally between the lead conferees from each house.
The reasons for these closed-door negotiations are many. Politicians’ egos make it difficult for them to compromise in public or, in some cases, reveal how much they rely on staff. Their task is made more difficult by the legions of lobbyists looking over their shoulder and trying to influence decision-making. And conferees frequently are required to check back with caucus leaders before striking any compromises, particularly on major bills.
Indeed, in recent years, legislative leaders and the governor increasingly have held closed-door meetings late into the session to reach a “global deal” that – to varying degrees – dictates what individual conference committees can and cannot do.
“I think there have been years in which everything has been settled in a big room in the governor’s office, right down to some $150,000 arts project in Minneapolis,” McCormack says. “That really emasculates the (conference committee) chairs and closes the process down.”
One practice that has been dramatically curtailed has been the adoption in conference committee of proposals that were not included in either the House- or Senate-passed version of the bill.
Vanasek says a rule restricting such provisions was adopted in the late-1980s while he was speaker after a senior senator stuck a provision into a bill in conference committee that authorized the purchase of a new state airplane. When the measure was returned to the House and Senate, “it was the first anybody had heard of it,” he says.
“I remember the first session after we passed that rule,” Vanasek says. “We were in the tax conference committee and (longtime Senate Tax Committee chair) Doug Johnson, as he always liked to do at the right point in the negotiations, pulled out a list of things he wanted to be put into the final bill. I had waited all session to say, ‘Sorry, Dougie, House rules don’t allow it.’”
Still, on occasion, such additions still are made. Last session, transit advocates succeeded in inserting a $37 million appropriation for the Southwest Corridor light rail transit line into the transportation finance bill in conference committee, even though neither house had passed this funding. The conferees acted, with the apparent approval of DFL leaders, after it became clear that a sales tax increase for transit was dead and that Republicans had the votes to block any bonding money for Southwest.
House DFL leaders likely were prepared for the possibility that someone would raise a point of order that inclusion of Southwest funding was a violation of House rules, but no objection was ever raised.
Who really benefits?
Schultz believes the lack of openness and transparency in the legislative process ultimately works to the advantage of interest groups. They are the ones that employ the hoard of lobbyists – more than 1,300 of them – who patrol the Capitol corridors, develop relationships with key legislators and often know the most about what is transpiring behind closed doors.
“Lobbyists love to be able to push issues where they don’t have to be publicly scrutinized,” Schultz says. “I think an incredible amount of the legislative process is really a negotiated process between lobbyists and legislators. Therefore, both sides have huge incentives to keep it out of the public purview.”
Effective Democracy is a year-long series of occasional reports supported by the Chicago-based Joyce Foundation, as part of a grant made to MinnPost and the Wisconsin Center for Investigative Journalism.