Did the lieutenant governor just open Pandora’s box on conference committee reports? » Publications » Washington Policy Center
A lot happened in the last hours of the session. One thing that may have gone unnoticed is a decision by Lieutenant Governor Denny Heck that creates the possibility of significant anti-transparency legislative games being played in conference committee reports in the closing days of the session.
Conference committee reports are what happen when the House and Senate cannot agree on a bill and form a committee to resolve differences. Although this is supposed to be a public process, the fact is that the majority party usually works out the details of the final text of the bill behind closed doors before calling the conference, and then the details magically appear and are quickly voted on at the public report before being returned. to the House and Senate for final approval. Conference committee reports cannot be changed on the spot – they are straight votes up or down with no floor changes allowed (see Rules 15-17).
Because of these restrictions on conference committee reports, legislative rules on the scope and purpose of a bill are very important to prohibit logrolling (adding unrelated material) and to ensure that there are no surprises added to a conference report that the public would not expect to be part of the negotiations. Therefore, when an objection was raised against the conference report for HB 1099 to cut and paste sections of a failed 2021 bill (HB 1157) which had not undergone any legislative review or public hearing in 2022, it seemed certain that the Lieutenant Governor would agree with the objection.
Here’s how the Central place describes the objection of conference report HB 1099 raised on the floor of the Senate:
“Thursday night’s decision by Heck, acting in his capacity as Speaker of the Senate, came following an objection by Senator Shelly Short, R-Addy, based on Rule 66 of the Rules of the Senate prohibiting any amendment from altering the scope and purpose of a bill.
“Clauses 15 to 17 bring tax policy into the bill for the very first time,” she explained, referring to the local government tax authority text.
Short went on to say, “But the tax incentives related to this particular bill had never been introduced before the process we have before us. And that is outside the scope of the bill. Remember, Mr. Speaker, this is a planning bill, not a fiscal policy bill.
Tax policy, she noted, is about implementation.
“So the tax policy language that came out of House Bill 1157, Mr. Speaker, that didn’t continue through the process,” Short concluded. “Therefore, I believe – and this is my argument to you, Mr. President – that the amendment expands the scope of the bill and changes its purposes, a maneuver that our rules and our constitution prohibit.”
Before issuing his formal ruling rejecting Senator Short’s scope objection and allowing the vote on the HB 1099 conference committee report, the clearly uncomfortable lieutenant governor said:
“We now return to the reports of the conference committees. On hold was the point of order regarding the second substitute of Bill 1099.
The President wishes to preface his decision by making the following remark. In the 14 months that the President has had the privilege of standing here and occasionally voting on these issues, experience has shown that, no matter how complex or nuanced the issues before us, that after the fact, there was considerable conviction and confidence that the conclusion was based on very solid foundations. In other words, I feel good with everyone. I’ll tell you right now that I don’t feel good about this one. The fact is that this is a very, very difficult question.
It was flagged in the sense that a point of order was raised about the inclusion of clauses 15 through 17, which I believe are taken verbatim from another bill. Never a good sign. Earlier in the day, the Chair reminded members that writing titles that are too prescriptive can lead to thwarting this process. The same goes for efforts to keep a measure alive by taking it up and pasting it onto another bill, thus creating the prospect of considerable friction and conflict with scope and purpose.
This is not a clear case.
Senate Minority Leader John Braun told me this about the Lieutenant Governor’s surprise decision:
“We know our fellow Democrats will try to legislate from the bench – their capital gains tax game plan is proof of that. What happened with HB 1099 raises the question of whether Democrats would also try to legislate from the podium of a legislative chamber. Did they anticipate that their Frankenbill would bring a challenge, and were they betting on a favorable decision because they thought the content would appeal to the President of the Senate? I accept his lengthy explanation that he felt less confident about this decision, but you notice he still managed to come out in favor of the majority.
One of the policies grafted onto 1099 by the conference committee involved tax incentives, so in the future it would be interesting to see if Republicans can squeeze tax incentives into other bills and make them survive the democratic challenges. It might be worth a try, especially if the next legislature looks different.
In another surprise, despite some House members clearly expect to vote on HB 1099 after Senate approval, the House Majority Leaders never presented the conference report before Sine Die. Despite the bill’s failure, the dangerous precedent of the lieutenant governor’s decision apparently creates a new way to record elements of failed bills or add new concepts in conference committee reports the latest session day.
This whole process proves once again why no bill (even those from previous years) is truly dead before Sine Die. With the Lieutenant Governor’s ruling on HB 1099 allowing copy-paste of text from another bill, I fear Pandora’s box for anti-transparency conference committee reporting games is now wide open.