While there are many inventive workarounds used in D.C. to avoid public transparency and accountability, one of the worst has to be the “shell bill.”
This the use of innocuous legislation that is on the verge of passage to pass “must-pass” bills, like raising the debt ceiling, passing a huge stimulus package or funding the government. Leadership will introduce an amendment that replaces the entire text of the bill with a new piece of legislation, then rush that major deal through Congress before most of the people voting on it even have a chance to read it.
Republicans have, at various points, tried to limit this practice by introducing a slowing-down period on legislation, requiring that bills be introduced in full text form for a certain time period before they are voted upon. This is a good idea, but it’s never been properly implemented, and it doesn’t go far enough; the most common proposal is 48 or 72 hours. It ought to be a full week. This would force Congress to govern more openly and transparently, rather than striking last-minute backroom deals.
All of that is possible because Washington, D.C. – unlike our own state Legislature – doesn’t limit the context of a bill to the initial name. It’s called the germaneness rule. In Augusta, if you introduce a bill on say, hunting permits, it has to actually deal directly, and mostly, with hunting permits. It can’t be rewritten to be a vehicle for funding all of state government. While that’s an excellent rule, and one that Congress should adopt, it doesn’t do nearly as much to curtail legislative trickery as one might imagine. Part of that is because there are clever workarounds that upend legislative rules, but also part of it is because Maine has another mechanism to avoid public scrutiny of legislation: the concept draft.
You see, when Maine legislators introduce a bill, while they need a name and a topic. They don’t actually need any legislative text. Let’s say they introduce a bill named “An Act To Make Maine A Better Place.” The initial bill would contain no specific legislative text; instead, it would literally say, “This bill is a concept draft pursuant to Joint Rule 208. Reference to Committee’. The committee would then work out the specifics of the legislative text during work sessions, in consultation with staff, fellow legislators and lobbyists.
In theory, this practice allows legislators to introduce bills while refining specifics later. In practice, this allows the Legislature to draft far too much legislation behind the scenes rather than in front of the public.
When a bill has specific legislative text, the public – many of whom are experts in that particular area – will come and testify on the bill in the first phase of the process, the public hearing.
Legislators will then use the second phase of the process, the work session, to further refine the legislation based on public input. They’ll write amendments and have a vote, which often decides the fate of the bill on the floor. If it receives a unanimous “ought to pass” recommendation in work session, it can be passed without a recorded vote; if it gets multiple amendments or the committee is divided another way, there’ll be a floor vote. Either way, that becomes a fairly transparent process, ultimately.
Concept drafts are all well and good in theory. The fact of the matter is, though, that the legislators who sponsor them often have very specific goals they want to achieve; they might even have draft language in mind. In those cases, those legislators are using the concept draft process as a way to duck public input and avoid transparency, rather than as a way to produce better legislation. It’s quite similar to the last-minute budget deals negotiated so often in recent years in both Augusta and Washington.
While there may be a few instances where a concept draft has legitimate purposes, there should be a cap on these drafts, just like on legislation in the shorter second session of the Legislature. Concept drafts should also require the support of a majority of the Legislative Council – again, like all bills do in the second session.
If the Maine Legislature adopted just a few limits on these concept drafts, it would greatly improve public transparency and confidence in the legislative process. The only logical reason to oppose limiting them at all is if you want to strike backroom deals and avoid public scrutiny, something that hopefully we can all agree is bad for the state.
Jim Fossel, a conservative activist from Gardiner, worked for Sen. Susan Collins. He can be contacted at:
jwfossel@gmail.com
Twitter: @jimfossel
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