Nevada’s founding fathers, when they first drafted our state’s Constitution, had what they believed to be a cleverly progressive idea: What if, instead of having a professional body of legislators beholden to their own interests, Nevada instead elected citizens who legislated part-time?

The thinking behind this idea was either cynical or practical — or perhaps a little of both.

As our state’s founding fathers recognized, everybody has interests, a fact which is just as true for professional full-time legislators, such as congressional representatives, as it is for cattle ranchers or miners. Professional full-time legislators, if left to their own devices long enough, will optimize their behavior and the behavior of their legislative body to advance their interests and the interests of their legislative body, eventually at the expense of the rest of us. 

Sure, there might be a few good, altruistic men (Nevada’s Constitution was written in 1864 — the first woman wouldn’t serve in a state legislature until Colorado elected three women to the state’s House of Representatives in 1894 following Colorado’s adoption of women’s suffrage) who might be willing to serve, but, sooner or later, they would be played for fools and run out of office by legislators with far fewer scruples and far more thirst for power. Given enough time, a body of professional legislators is liable to turn into a building full of crooks.

So, what if, instead of having professional full-time legislators, our state instead had part-time, poorly paid legislators with jobs and careers back home that they were strongly encouraged to return to? The absolute worst case, or so the thinking went, was that the legislators would each be beholden to their financial interests — miners would be in the tank for mining, ranchers would be in the tank for ranching, and so on — and the Legislature would consequently reflect the competing interests of the state it governed. Even if the Legislature was filled with thieves at some point down the road, they’d be thieves serving their own commercial interests instead of their political interests because their commercial interests had and always would pay better and give them more power — and if so, their commercial interests might benefit someone outside of Carson City. 

In other words, our state’s founding fathers tried to design a Legislature around scientist and science fiction writer Jerry Pournelle’s oft-quoted Iron Law of Bureaucracy nearly 150 years before he ever put it to paper. That’s some decent foresight, all things considered. Unfortunately, our commercial and labor markets have changed a bit in the intervening century and a half or so since our Constitution was first telegrammed to Washington D.C. 

For starters, taking 120 days from work (or more if there’s a special session) off — double the amount of time the Nevada Legislature constitutionally permitted itself to meet in the 19th century — and expecting to have a job when you come back is laughably unrealistic for most Nevadans, myself included. Even expecting to find a new job in the same field can be difficult. Given a choice between employing someone who can focus solely on a day job and someone who’s constantly distracted by interim committees, special sessions, and other legislative ephemera, who would you hire?

(If you’re my manager and you’re reading this week’s column, pretend I didn’t ask.)

Additionally, Nevada’s economy is rather different than it was in 1864. According to the U.S. Bureau of Labor Statistics, mining employment in the state now barely accounts for 1 percent of Nevada’s total nonfarm employment. According to the last U.S. Department of Agriculture Ag Census, meanwhile, Nevada’s farms and ranches employ only a few thousand Nevadans — not enough to even count as a rounding error against the million and a half Nevadans in our state’s labor force. The days when Nevadans mostly worked seasonally or in the 19th century’s version of the gig economy digging through various short-lived mining claims ended several decades ago. Gaming — our state’s largest employer — wasn’t even legalized until 1869, and it didn’t turn Nevada into the 24-hour state we all know (and realize we love the instant we visit somewhere else and learn the hard way that bars and grocery stores normally have closing times) until sometime after World War II.

Now go work for a casino or a distribution center — Nevada’s two leading employment sectors, which, put together, employ nearly half of Nevada’s workforce — and try to take 120 days off. Even if you manage or run a casino or warehouse, taking that kind of time away from work isn’t a mere non-professional inconvenience. It’s career suicide and directly harms your 24/7 business’s bottom line. Given that, it shouldn’t be a surprise that only one person in the Legislature recently worked in one of Nevada’s two leading employment sectors — Assemblywoman Susie Martinez (D-Las Vegas), who worked in the hospitality industry until she was elected executive secretary-treasurer of the Nevada AFL-CIO.

Instead, our citizen Legislature, which is supposed to be representative of the population of Nevada it serves, is populated by those whose jobs and careers are, shall we say, a bit more flexible. There are some business owners, past and present. There are more than a few attorneys. There are several retirees. Oh, and yes, much to both Nevada Policy Research Institute’s and a fellow columnist’s annoyance — and the chagrin of at least two members of the Nevada Supreme Court — there are several government workers serving in the Legislature as well.

I’m not going to chime in on whether government workers should be allowed to serve in the Legislature — that’s Michael Shaus’ beat. If he isn’t opining on the subject this week, I have no doubt he’ll have something to say on the subject within the next week or two. He strikes me as the sort who would appreciate my stated dedication to comparative advantage anyway.

I will observe, however, three points.

First, government workers serving in the Legislature is a bipartisan pattern of behavior. When state Sen. Heidi Gansert (R-Reno) first ran for her current seat during the 2016 election (disclosure: I ran against her), for example, it was widely speculated that her election would be a boon to her then-employer: UNR, for which she worked as an executive director. She didn’t leave that job, by the way, until 2021. Two other Reno-area Republicans — Assemblywomen Jill Tolles and Lisa Krasner — still serve as adjunct professors for UNR and Truckee Meadows Community College, respectively.

Second, like Sen. Gansert, some Democrats are starting to make alternative career plans for what’s appearing to become an increasingly inevitable ruling enforcing Article 3, Section 1 of our state’s Constitution. Senate Leader Nicole Cannizzaro (D-Las Vegas), for example, is now a personal injury lawyer, while Sen. Melanie Scheible (D-Las Vegas) recently announced she’s leaving her job — both used to work together in the Clark County district attorney’s office. Both senators are acting as if they believe the Supreme Court is likely to, at a minimum, prohibit government-employed attorneys from serving in the Legislature. Depending on the scope of that ruling, it may also apply to Sen. James Ohrenschall (D-Las Vegas), who currently works as a deputy public defender — or it may expand to include every single current public employee serving in the Legislature. If ruled broadly, the prohibition will change the careers of at least half a dozen members (or, if you prefer, at least 10 percent) of our Legislature, one way or another.

Third and finally, Nevada’s never had much respect for its Legislature. As Mark Twain vividly described in Roughing It, Nevada’s first territorial Legislature nearly convened in the desert because nobody trusted in its ability to pay for lodging; Abraham Curry took pity and lent a brick building in Carson City located where the state prison now stands. Nowadays, as I pointed out a few years ago, we have a Legislature that meets for a minimum of 120 days but is only paid for 60 every two years, and Nevada’s voters have taken every chance to tie the hands of the Legislature through the generations. And now some of the same people who keep calling for the ropes to get tighter wonder why the executive branch, which meets and works as often as it likes, has the power to routinely force-march the Legislature through hundreds of millions of dollars in spending and tax giveaways — including, most recently, $250 million in American Rescue Plan funding for affordable housing — and issue emergency regulations for two years.

Nevada, for better or worse, has exactly the Legislature we voted for — I say “voted for” because many of the restrictions our Legislature operates under are the product of voter initiatives and referendums passed over the past seven decades. 

We have a “citizen Legislature” that, in many respects, is unrepresentative of the citizens it governs, and of which at least a tenth of its members might not even be constitutionally eligible to serve. We have a Legislature that is paid just enough to keep the Carson City Nugget’s hotel in the black filled with members we assume turn rotten as soon as they get more than two working years of legislative experience under their belt — well, unless a legislator switches houses and gets six more 120-day sessions under the belt. We have a Legislature that works only once every two years — well, unless the governor wants to spread the “credit” (read: blame) on a tax giveaway around or the word “interim” is magically sprinkled on to a committee.

In short, whether government workers should get to serve in the Legislature is the least of our state’s problems with what’s supposed to be a coequal branch of government. I’m glad we’re finally getting to that problem nearly 160 years after the prohibition was first put to paper. Hopefully we don’t have to wait another 160 years to start addressing the rest of them.

David Colborne ran for office twice and served on the executive committees for his state and county Libertarian Party chapters. He is now an IT manager, a registered nonpartisan voter, the father of two sons, and a weekly opinion columnist for The Nevada Independent. You can follow him on Twitter @DavidColborne or email him at [email protected].