Nevada’s attempts to use constitutional change to reform the legislature have seldom worked as intended
Three times in recent years, the Nevada constitution has been amended to change the way the state legislature operates. The results have been a mix of unintended consequences and no consequences.
The effects of one recent constitutional change—a 120-day limit—are being keenly felt at the Nevada Legislature.
A second constitutional change—a minority-control provision—was less of a factor this year than in 2003.
And a third—"Education first"—had little impact in its first outing.
The 120-day limit on sessions of the Nevada Legislature has been in effect since the 1998 election, when voters approved it 283,464 to 117,490. It was placed on the ballot by the legislature itself and so needed approval in only a single state election. It has been in place during five legislative sessions.
But there has never actually been a 120-day session. Every legislative session has begun well before the clock started running on the 120 days.
Under the provisions of the constitutional change the governor was required to submit his or her budget recommendations 14 days in advance of the start of a legislative session. Previously governors waited until the first week of sessions.
As a result, legislative leaders in 1999 decided to start budget hearings two weeks before the legislature went into session—an action denounced by some legislators as cheating on the 120-day limit. Nevertheless, the practice has been followed ever since. So the 120-day limit is, in actual practice, a 134-day limit.
During the five legislatures the limit has been in effect, they have slowly evolved into maintenance legislatures—doing the business needed to keep things operating until the next legislature meets. It is difficult for legislators to get their arms around large initiatives in the allowable time. For instance, the reform of the state workers injury insurance system that took place in the 1993 legislature would probably be impossible to undertake under the 134-day limit.
Only one legislative session has reached out beyond mere state maintenance. That was the 2003 session, which was called on to rebuild the state tax structure. And it went far over the limit into two special sessions lasting an additional 38 days.
For decades, the Nevada Legislature has used a system of studying problems during the year and a half interim between sessions in order to have bills drafted and ready for introduction on the day the next legislature starts.
Assemblymember Sheila Leslie said sometimes interim study committees do studies that then can’t be used because of other factors.
“We try, of course, in the interim to do some of that, and in health care, we did a massive health care plan in this last interim and identified all sorts of areas where we wanted to do some major changes, and then we get to session, we don’t have the money,” she said. “So we have a whole list of things that we know we need to do to strengthen our basic infrastructure, and we can’t do them because there just isn’t an additional $30 million for presumptive eligibility. There isn’t an additional $20 million to help the homeless. The money’s just not there. So that’s the frustrating part.”
But Clark County Sen. Steven Horsford, elected in 2003, said in an interview with KNPB’s Capitol Issues last week that a bigger problem is that the pressure of time just doesn’t allow lawmakers to undertake major proposals, so they end up tinkering with the status quo.
Later in an interview with the RN&R, Horsford talked about remedies for the problem.
“Well, you’d have to work hard during the interim to know what is it you want to do during the session because there’s not enough time to, you know—work out all the details during the 120 days,” he said. “So you kind of have to have some idea and some of the details worked out before you get here.”
Horsford was asked if it had been his experience that previous interim studies have served that purpose.
“Not for the most part,” he answered. “I mean, we had an interim study of a blue ribbon committee on transportation that studied for 18 months the transportation needs, and the recommendations weren’t even considered by the governor or the majority of this legislature. So, I don’t know if that’s politics or that the interim process isn’t respected.”
However, Senate Republican floor leader William Raggio, who was an outspoken supporter of the measure limiting sessions to 120 days, continues to support it, saying that whatever its failings, it keeps pressure on for an early end to legislative sessions, which helps preserve Nevada’s supposed “citizen legislature.” He noted that before the 120-day limit, legislative sessions were going six months, albeit every other year.
“When you start expanding into people’s other lives—and we all have other lives—then it becomes difficult for a citizen-type legislature to exist,” Raggio said. “So you’re going to become like Congress or like California, Michigan, Ohio. … You’re going to be full-time legislators.”
Another recent change was sponsored as an initiative petition by Jim Gibbons to publicize his unsuccessful first campaign for governor in 1994. It provides that any tax or fee increase must have a two-thirds vote in the legislature, giving one-third of either house plus one additional member the power to defeat any such measure.
Because it was placed on the ballot by petition, it went before voters twice, passing both times. It was approved in second-round voting by 301,382 to 125,969.
This provision was the reason the 2003 legislature was so long. Fifteen members of the Assembly held out against passage of a new tax program for many weeks.
In most cases, though, a two-thirds vote is not difficult to attain since most such measures are fee increases, such as fees for filing incorporations or obtaining barber licenses or whatever.
In 1997, however, some unforeseen consequences emerged—the Gibbons measure sparked higher spending. At that year’s legislative session, Clark County representatives wanted a sales tax increase for capital improvements. However, the Gibbons measure effectively gave a veto to northern legislators, who threatened to stop the tax unless the north was permitted to share the wealth. Washoe County had just suffered a crippling flood, so it was cut in for a sales tax increase to pay for flood control and other capital improvements.
Later, legislative lawyers said that if the lawmakers merely passed laws “enabling” local governments to raise the sales taxes, the legislature would not have to comply with the two-thirds voting requirement. But by that time the measure was well on its way and the compromise could not be undone. Besides, no one was sure the lawyers were correct. So similar share-the-wealth arrangements have been used over the years. (Very little of the Washoe sales tax hike was actually used for flood control. See “Sales tax shootout,” Dec. 3, 1998, and “A tale of two taxes,” Feb. 23, 2006.)
In 2007, however, the Gibbons measure was used for an entirely different purpose—to block a privacy-invading measure that burdened businesses. This measure would have imposed a fee and required record keeping on retail stores in an effort to curb the sale of cold medicines that can be used to manufacture meth. Republicans denied the measure a two-thirds vote and so succeeded in stopping the measure as burdensome on business. After the fee was dropped and other changes made in the bill it burdened only consumers (who will no longer be able to purchase some medications as easily) and was approved unanimously in both houses.
At the end of this year’s legislature Gov. Gibbons and his allies launched a flurry of defenses of the “education first” constitutional amendment. They said the measure worked just the way it was supposed to work.
Gibbons proposed it in 2003 after passage of that year’s education budget was tied to a tax hike, a process Gibbons and other Republicans called holding the education budget hostage. So he circulated an initiative petition to require the legislature to approve that budget before any other. It was approved in second-round voting 446, 965 to 342,173.
This year, except for transportation, education was the last major budget resolved.
And the education budget was held hostage twice—once by Gibbons himself.
Gibbons threatened to veto the education budget unless a temporary business tax break was made permanent.
“He said you can’t hold education hostage,” said Senate Democratic floor leader Dina Titus, who ran against Gibbons last year. “That’s exactly what he’s doing.”
And for several weeks in May and June, the state’s higher education budget was held up by supporters of higher spending for primary and secondary schools—"Nevada’s higher education funding is being held hostage,” said Nevada Faculty Alliance lobbyist James Richardson.
That’s two out of two. Both of the stated purposes of the “education first” constitutional amendment—getting education spending approved first and preventing it from being held hostage—went awry.
In July 2004, Raggio had predicted that Gibbons’ education initiative petition would likely result in a pro-forma compliance with the measure but no real change in legislative procedure.
“You’ve got one [initiative] on education first, funding education first,” Raggio said then. “Sounds good, you know, but what does it mean? It means that we’ll divide the budget up, and when the education budget is ready, we’ll pass that, and five minutes later or 10 minutes later, we’ll pass the next one.”
That is pretty much what happened—the initiative was technically complied with and, otherwise, nothing changed.