Indy Explains: Transparency and open government -- or lack thereof -- at the Legislature
For an increasingly urban state that has more than doubled its population to 2.7 million since 1990, Nevada’s state government can at times feel like it’s stuck in the past.
The state is one of roughly 16 with part-time legislatures, meeting only once every odd-numbered year for a grand total of 120 days in a small rural capital hundreds of miles to the North of the major population center. Lawmakers are paid little, given few staff, and constitutionally mandated term limits lead to a high churn rate for legislators.
It’s no wonder then that the state often scores poorly on national integrity and transparency scorecards.
While greater Internet adoption and usage have opened the lawmaking process up to a degree not possible throughout most of the state’s history, the Legislature can more often than not be frustratingly opaque in a wide variety of ways.
Bill Draft Requests
Unless lawmakers bring up specific issues themselves during the campaign session, it can be somewhat unclear as to what kind of bills will be produced at discussed at the Legislature until the actual 120 day session begins.
As required by state law, the Legislative Counsel Bureau publishes a list of all bill draft requests received by legislators and standing committees starting on July 1 of the preceding session. The law, which was first passed in 1987, requires the list to include the name of the requester, the date it was submitted and “a brief summary of the request.”
That “brief summary” varies in the level of detail provided. Some requests are more clear — one request from Democratic Sen. Tick Segerblom specifically calls for renaming “McCarran International Airport the Harry Reid International Airport” — while many others are much more vague — “revises provisions relating to education,” for example.
Open Meeting Law
Despite requiring a wide swath of other state agencies, local governments and boards, the Legislature exempts itself from the state’s Open Meeting Law.
Why the exemption? The state Legislature itself isn’t considered a “public body” and is specifically exempted from the requirement in state law. It means that the Legislature gets to avoid following the 100 page plus Open Meeting Law guideline published by the state attorney general, while groups such as university student governments and other obscure public bodies have to follow most of the regulations.
This isn’t to say that the Legislature operates totally in the dark — the state’s Legislative Counsel Bureau has taken advantage of the Internet to post schedules and agendas of all legislative meetings (usually several days in advance). Both the Senate and Assembly pass rule packages shortly after the Legislature begins that call for “adequate notice” on bills that come before a committee.
Legislative committees are constitutionally required to be open to the public, other than meetings “held to consider the character, alleged misconduct, professional competence, or physical or mental health of a person.”
Tracking bills is also easier than in past years thanks to NELIS (Nevada Electronic Legislative Information System), a massive online database of meetings, bill drafts, bills themselves and any amendments, fiscal notes or prepared testimony on specific bills.
The database, which was first adopted ahead of the 2011 session, can be overwhelming with the vast amount of information and data available. Personalized bill tracking with emailed updates on what’s happening with specific bills is available, but it does require registering an account with the LCB and tracking more than a dozen or so bills can be costly.
The LCB also keeps a video archive of all committee meetings and floor sessions since the 2015 session, including interim meetings and special sessions.
Behind the Bar
One consequence of the Open Meeting Law exemption is the prevalence of “behind the bar” committee meetings. Normally, legislative committees meet on a regular schedule throughout every week of the session, with ample time and notice given to any agenda changes or modifications as well as the process itself filmed and uploaded to the legislative website.
But as the session draws to a close, committee chairs will at times hold “behind the bar” meetings — the “bar” referring to the divide between publicly accessible areas and the floor of the Assembly or Senate. These meetings take place with a quorum of committee members and a legislative secretary present, and are equally binding as normal committees despite not being filmed or (usually) announced ahead of time. The 2015 Assembly rules specifically exempted such meetings from providing “adequate public notice.”
Use of “behind the bar” meetings is usually reserved for late-coming, non-controversial amendments or second passage of bills the committee has already heard. But the practice can be exploited to rush legislation through — one notable example being AB394, an ambitious attempt to overhaul the massive Clark County School District that was introduced in a “behind the bar” meeting and passed through the Senate just minutes before the 2015 session adjourned.
Because the Legislature isn’t considered a “public body,” legislators’ emails and calendars have blanket immunity from public records requests.
A 2016 Associated Press investigation that requested emails from legislators was met with a “meticulously annotated, 28-page denial” letter that among a “buffet of reasons” included a little-noticed bill, AB496, introduced and passed in the final 48 hours of the 2015 session. That bill, which legislative lawyers said codified already existing case law, granted immunity to any action — written, spoken or otherwise — taken by lawmakers “within the sphere of legitimate legislative activity.”
Another reason for the denial reported by the AP was that by making emails and other legislative communications public, it would “chill legislative speech and debate because Legislators might censor their remarks or forgo them entirely to protect the privacy of their sources from being revealed.”
Open government supporters in Nevada have sharply criticized the measure, and the Nevada branch of the American Civil Liberties Union plans to introduce legislation in 2017 expanding public records law to cover legislator’s emails and other pertinent documents.
Abstentions/Conflict of Interest
Legislators, other than a handful of retirees, generally keep normal jobs they keep during the 18 months between sessions. This leads to a number of recurring questions about conflicts of interest every session as legislators have their co-workers lobby them and can lead to lawmakers employed in an industry voting on policies that affects that specific industry.
Under Assembly and Senate standing rules (which can and are changed from session to session), lawmakers can abstain from voting on legislation if they determine whether a conflict of interest would affect their “independence of judgment,” by acceptance of a gift or loan, a private economic interest or commitment to a family member.
Though the rules of both houses require legislators to publicly state (either in committee or on the floor of Assembly or Senate) if they have a conflict of interest, abstentions are only necessary under the following conditions — if it “impedes his or her independence of judgment” and if “his or her interest is greater than the interests of an entire class of persons similarly situated.”
Lawmakers can, and do, ask their legislative counsel for advice on disclosing conflicts of interest and whether or not abstaining on certain legislation is necessary. But outside of a rarely used “Select Committee on Ethics,” there is no official outside oversight of legislative behavior.
Nevada’s Ethics Commission has had limited oversight over lawmakers since a 2009 state Supreme Court ruling that found the state constitution prevented the eight-member body from overseeing any “core legislative function” because it technically falls under the executive branch.
A 2016 Las Vegas Review-Journal investigation found that the same piece of little-noticed legislation that helped exempt lawmakers public records laws, AB496, also expanded “legislative immunity” to a level that essentially bars the Commission from investigating lawmakers. While that legislation still allows the commission to investigate lawmakers for actions that fall outside “core legislative function(s),” even that could change in 2017.
At least one bill (SB36) has been introduced entirely cleaving any involvement the Legislature has with the commission, including removal of lawmakers from the commission’s jurisdiction and eliminating the four commission positions appointed by the Legislature.
Nevada has made significant strides in publicizing campaign finance reports, but outside groups still give the state poor ratings due to a lack of auditing or oversight.
All campaign finance reports are required to be uploaded to the Secretary of State’s website, which also tracks political groups and is searchable by individual contribution or spending. The site also makes it easy to mass download reporting data.
Still, Nevada gets an “F” grade from the Center for Public Integrity on campaign finance for not capping political contributions to state political parties, lax to nonexistent auditing of reports and relatively light punishments for those who violate the law.
Lawmakers have made recent strides to tamp down on the influence of lobbyists
Republican State Sen. Michael Roberson sponsored and passed legislation in 2015 that put an outright ban on any gift from a lobbyist to a lawmaker, their staff or a member of their immediate family, and prohibits the solicitation of any gift.
The law also requires lobbyists to disclose spending made for “educational or informational meetings, events or trips” given to lawmakers, and for legislators to disclose any similar trips on their campaign finance reports. It also standardized the definition of “gift.”
Las Vegas Review-Journal columnist Jane Ann Morrison lauded the change in a recent column, saying “It made other valuable and positive changes so the public can see who is wooing and who is being wooed.”