Limitless legislative power?
Last month, as part of a nationwide Associated Press test of transparency in state governments, Nevada AP reporter Michelle Rindels requested copies of emails and schedules of Gov. Brian Sandoval and several legislative leaders from the first week of last year’s Nevada Legislature.
Sandoval’s office provided the calendar information required—one flight information number was redacted—and promised the emails were forthcoming.
The legislature, however, declined to provide any of the requested information and explained why in a remarkable letter. Not counting extraneous matter like signatures, it was 12,578 words long.
The U.S. Constitution is 4,609 words long—counting extraneous matter like signatures.
The letter invokes “exclusive and paramount powers” in the Nevada Constitution for legislators to determine the rules of their own houses. It further argues that the Nevada public records law “does not apply to the requested materials because the materials are ’otherwise declared by law to be confidential’ under the common-law balancing of private and public interests given that the interests in privacy and nondisclosure outweigh any countervailing interests in public access.”
The word privilege is used in some form 106 times in the letter.
This unusual response raised suspicions.
“The extent of the reaction makes you wonder, ’What do they have to hide?’” Nevada Press Association director Barry Smith told Rindels.
The letter was created by legislative litigator Kevin Powers and legislative counsel Brenda Erdoes. Among other things, it relies for authority on Assembly Bill 496, which was slid through the legislative process in the closing hours of last year’s legislature by legislative staff. This is paradoxical, because the letter argues that the legislature’s constitutional shelter from statutes cannot be overridden even by statutes enacted by the legislators. A preface to the bill says that it is a re-statement of existing law.
The public was not given notice of the bill, and it was heard in the Assembly Legislative Operations and Elections Committee the day after it was introduced, on the last day of the legislature. Powers gave the only testimony, and the committee gave it a “do pass” recommendation to the full Assembly. In the course of that committee hearing, a question from Democratic Assemblymember James Ohrenschall to Powers reads in part, “Using another hypothetical example, someone put in a public records request wanting to know all the travel that Senator X took, that would be granted.” Powers replied in part, “That is correct. Section 2, subsection 6 of this bill says the records of the travel expenses of legislators and employees of LCB [the Legislative Counsel Bureau] are available for public inspection.” That was as close as legislators came to addressing the issues in the current dispute. No legislator asked why, if the concept was already in the law, it was necessary to enact a new measure saying the same thing.
During the Senate hearing, no questions were asked by senators. During the Assembly hearing, there were several questions, but not one legislator asked why the bill had not been introduced early in the session. Waiting for the closing days until now has generally been a technique employed by lobbyists.
Since the letter was sent, commentary has focused on whether there is any limit to legislative authority under the scenario outlined in that letter.
We sent queries to 62 legislators or former legislators who voted for this measure. Eight responded.
Most of those eight seemed not to remember the bill, and responded by quoting the staff-written preface. Republican Assm. Randy Kirner wrote, “As to AB496, again it wasn’t new legislation, just clarification of already existing law and … intended to clarify rather than change existing law. I think the criticism is stretching and I agree with the prohibition as explained by LCB. It is easy to criticize when sitting in the bleachers. Being on the field is a different experience.”
Democratic Assemblymember Elliott Anderson: “I voted for it because our legislative counsel advised it codified existing legislative privilege law, as developed by the courts, which is discussed in the legislative digest of Assembly Bill 496. Due to the late introduction of the bill from the Assembly Legislative Operations and Elections Committee, I heavily relied on this advice, along with reading the material myself. In light of the recent attention to the bill, I am both taking a second look at the bill and the case law in order to ensure that we balance transparency with the need for us to get candid advice in order to properly serve our constituents.”
Republican Assemblymember Philip “PK” O’Neill: “It received minimal vetting and was passed unanimously in both houses. Substantial questions about it have subsequently been raised, and I would certainly be supportive of reconsideration of it in the next session. That would include full and open hearings to consider all the issues that have been raised.”
Democratic Sen. Richard “Tick” Segerblom: “I support the concept because as citizen legislators it is tough to separate what we do between legislative business and other business and although we all have private email accounts things get mixed up. Having said that, if we can sit down and clearly define what is public and what isn’t public and let everyone know going forward then I would support making legislative emails and calendars public records subject to disclosure.”
When asked, “Wouldn’t the same thing apply to every public body from mosquito abatement district boards to the board of regents? It’s no doubt inconvenient for them, too,” Segerblom replied, “Consistency is the hobgoblin of small minds! My only comment would be when you work fulltime for 4 months but have a private life the other 20 months it’s very difficult to separate your legislative and professional and personal lives. But given clear rules we can handle it—going forward—and I’m sure we will address this issue in 2017.”
Many seem to assume that because the legislative staff said the bill was a restatement of existing law, it was true. When Kirner was asked if he heard the same thing from any other source, he responded, “I don’t recall. It is written into the bill, however.”
It appears that the bill—which in part affects legislative staff practices—was adopted by lawmakers principally because of what lawmakers were told by legislative staffers.
One lobbyist who called the Erdoes/Powers letter “terrible public relations” also said, “It’s like hanging a sign around their necks saying, ’Please investigate us.’”
During debate over ballot measures dealing with term limits in 1994-1996 and limiting the length of legislative sessions to 120 days in 1998, there were those who warned that such changes were likely to increase the power of unaccountable groups such as lobbyists and legislative staff.