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The bounds of open and secret

Article III Section 12 of the Idaho Constitution says, in simple and direct language, the following: “The business of each house, and
of the committee of the whole shall be transacted openly and not in secret
session.” That is all it says on the subject of openness in the Idaho Legislature.

Now let’s imagine a hypothetical bill: HB001, which follows the usual path to adoption. It surfaces in a House committee, which votes to recommend it be introduced by the full House. Sent to the House floor, it is formally introduced and read for the first time, and then – this is what happened to almost all bills – it is sent to a committee, which reviews it. The committee may decide to “hold” – kill – it, or suggest amendments, or send it as is back to the House floor for a vote there. In this case, the bill is given a “do pass” recommendation, returned to the House floor, where it is read (in very abbreviated form) for a second time, and then, a day or two later, for a third time. It then is voted on and, if passed, it is sent to the Senate, where the same process more or less repeats. If the Senate, too, passes it, it goes to the governor for signature or veto.

From the moment of its introduction until it either dies or is sent to the governor, the bill has a continuous history in the House and Senate. When the bill is sent from the House floor to a committee for further review, that is an action of – part of “the business of” – the House; and what happens to it there is surely also a part of the business of the House. One would think.

The Idaho Supreme Court, or at least a 3-2 majority of it, doesn’t so think. In its decision today in Idaho Press Club v. State Legislature of the State of Idaho, our hypothetical HB001 is part of “the business of” the House as long as it remains on the floor, but drops into some lawmaking netherworld once it is assigned to a committee, then becomes once again part of “the business of” the House once it returns to the floor. The public has a constitutional right, the court says, to track activity on that bill while it is on the House floor, but not when it is being acted upon by a House committee.

How can this make sense? In the majority opinion authored by Justice Daniel Eismann, the point is that the constitition didn’t specifically say that committee meetings must be open to the public. More significant, it suggested, is the reference to the “committee of the whole” – noted in the constitution, while other committees are not.

The “committee of the whole” is an odd legislative beast (quite different, as the majority notes, from other committees), used by House and Senate as a theoretical replacement for their full bodies for the purpose of amending bills on the floor. What it means is that – let’s go back to HB001, and say a committee had recommended it be amended – the House would adjourn, and then convene this theoretically completely separate body called “committee of the whole” whose sole purpose is to amend the bill. (No, no sensible reason this runaround is still on the books, or why the regular old House or Senate body shouldn’t be constitutionally enabled to do the amendments, comes to mind.) In other words, the House (0r Senate) has just said, “we ain’t the House (or Senate) any more” – the constitution essentially bans the use of that device as a means to closing floor sessions.

You can see why the majority’s logic relies on a stunning narrow reading of the constitution: A sentence whose purpose seems evidently drafted for the purpose of ensuring openness has been interpresented to allow for closure wherever it isn’t inescapably banned. The basic tenor of the constitution, and of Idaho law for that matter, runs in the opposite direction: Keep it open unless there’s a truly compelling reason for closure.

It is true that for many years legislative committees met behind closed doors in Idaho (as they did in many other states). That doesn’t mean they were acting correctly; several common legislative procedures in use today (such as that used to satisfy the “reading” of bills) could easily run into trouble under legal challenge.

Justices Jim Jones and Roger Burdick dissented. Here is part of what Jones (with Burdick concurring) had to say:

I am unable to read the Idaho Constitution in such a fashion as to allow the State
Legislature, which was established by the people, to have the ability to exclude the people from any stage of the lawmaking process. The majority opines that since committees are not specifically mentioned in art. III, § 12 as being subject to the prohibition against transacting business in secret session, the Legislature can close committee meetings to the public. On the other hand, there is no provision in the Constitution that authorizes or provides for the Legislature to establish committees to conduct any of its legislative business. Just because the Legislature has chosen to conduct a good deal of its work in its various committees does not mean that the legislative business conducted in those committees can be shielded from public view. Based on my understanding of the role of committees and the history of art. III, § 12, I simply cannot accept the notion that the people would require the Legislature to conduct the people’s business in public yet intended to permit the Legislature to create smaller forms of itself and conduct that business behind closed doors. Therefore, I respectfully dissent.

Should be noted: The decision isn’t likely to change actual current procedures at the Idaho Legislature, which with only rare exceptions over a period of decades has been riforously open: Only rarely have committees, in the last generation and more, sought to close their meetings.

But that’s owing to the good will of the legislators – so far – who generally have kept the doors open. If future legislators decide otherwise, Idahoans will get no help in learning about many of their activities from the Idaho Constitution.

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3 Comments

  1. Scott T. Scott T. March 22, 2006

    Term limits were voted in three times & upheld by the courts in Idaho if I’m not mistaken, only to be repealed by the same legislators who claim We the People don’t know what’s best for us. Later another vote, until they get what they want & mislead as were the people in Idaho who were fooled into voting to get rid of those nasty term limits. Wording like closed door meetings.

    Like any political process it doesn’t matter than these elected officials are employees of the people they don’t necessarily do what’s best for the people.

    Recently it has come to light that the governor of Idaho has 14 acres near a newly developed resort. Tax cuts & incentives for business & developers have made it possible to own land as the governor does & pay little tax as does Gov. Kempthorne, $6 a year on 14 acres? A property owner/homeowner/citizen/taxpayer/employer of the governor may pay $2,000 on their home/lot in Boise while the honorable Governor, recently appointed Sec. of the Interior by Mr. Bush was deliquent on his $6 taxes for the 14 acres last year. Also should be noted Mr. Kempthorne also wrote a bad check or to to his hair stylist.

    Did I know about these incetives or cuts so I could also take advantage of the bills & laws passed? If I were a politician would I pass bills & laws & then benefit fom those through the purchase of property which will no doubt appraciate? Should a law be passed to prevent those in a position to buy & profit due to their passing of such laws?

    Does the name Abramoff mean anything? Randy “Duke” Cunningham ring a bell in scandals involving defense contracts? Katherine Harris as Secretary of State of Florida during the first election in which Bush with all that blue blood was appointed President? Craig in Idaho donating $43,500 to charity after it comes to light that $43 thousand came from lobbyist in relation to defense contractor Wilkes also.

    Crooked as a dog’s hind leg! Politics in America. A mis-managed nation, mis-managed by mis-representatives bought by corporate un-America while promoting democracy in Iraq. Americans dying in war based on lies to then liberate & protect America.

    How or why would any other country believe in democracy when demcoracy has evolved into a democratic dictatorship here in America. The America way of life has become the American way of lie. The battle cry we grew up learning of in school, “Give Me Liberty or Give Me Death” has changed to “There’s Nothing You Can DOOO!”

    Going back to the process of bills & laws. Why waste all the time of going through the house & then the Senate. Nebraska has a unicameral, seems to work but I guess outsourcing or job cuts don’t work on government level?

  2. glw_idaho glw_idaho March 23, 2006

    I am afraid that Randy’s editorial on the Press Club case is media bias driven. The question that Judge Eisemann had to answer was governed by the express language of the Constitution. When the constitution was passed the Legislature had committees other than the “committee of the whole”. When the drafters referred to the “business of each house” and “committee of the whole” as instances when no secrecy is allowed they had a very specific openess goal in mind. In my view, that may be a very narrow goal in today’s world. Judge Eisemann may personally agree with me on that. However, it is not his job to amend the constitution by loose interpretations of what appears to be clear language. His interpretation of the language of the constitution must be conducted within the boundries of the law as it pertains to constitutional interpretation. He doesn’t get to make up the rules as he goes along.

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