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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