Anyone who has ever had to read through a complex bit of statute in an area of their own expertise has without a doubt said at some point, “What in the [redacted] were they thinking when they passed this [redacted] law?” And because this Legislature didn’t take its own deadlines – or the very good reasons they exist – seriously, it’s going to be worse than usual in the next two years.

Take AB236, the large (136 pages!) “omnibus” criminal justice reform act. I wrote a bit about this measure last week, noting that it was one of the few major legislative priorities moving through the session in a more or less correct way. That is, the concepts behind it were researched and discussed openly ahead of time, it was introduced at the beginning of the session, subjected to robust public debate, and is being adjusted and amended based on stakeholder feedback. 

I’ve been paying attention to this bill in particular, because it will have a direct day-to-day impact on my clients and on my profession. My clients facing more serious consequences, especially related to drug trafficking or because they’re being threatened with being designated a habitual offender, know big changes are coming and are desperately curious about what their future might hold. 

The Assembly Judiciary Committee work session met on Tuesday to discuss and potentially pass AB236 out of committee. Just one day prior, committee Chairman Steve Yeager submitted a major amendment, which when integrated with the rest of the bill as a mockup, came in at 86 dense pages of color coded additions and strikethroughs. 

I sat down and read every line of the new mockup proposal Monday evening (both out of professional interest and because I am a nerd), taking notes along the way. Even though I was already intimately familiar with the subject matter of the bill and the statutes being changed, and even was broadly aware of many of the proposed changes, it still took me about four hours to go through it all and adequately digest it. Even then, I found a few mistakes in my analysis when I went back and looked at it again in the morning.

As I was doing so, I thought about the actual legislators, most of whom do not share my professional background in criminal law, trying to do the same, and then having to try repeating that same exercise dozens or even hundreds of times in the coming days. I thought about trying to read, understand and anticipate the unintended consequences of a similar-sized bill about water law or marijuana regulation or education funding or energy policy or health insurance mandates.

It’s almost enough to make you pity politicians! (It certainly explains why more good people can’t be induced to run for office.) But of course, the real people to feel sorry for are those of us who have to live with the inevitably under-informed votes and sloppily crafted statutory language which this way of doing the people’s business gives us.

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This does not mean that the Legislature should not tackle tough legal issues which may be unfamiliar to citizen legislators – they can, should and must do so. But there are rules in place which, while restrictive, are actually there to make the deliberative process more, well, deliberative, and ultimately to make the end product better for Nevadans who must live with the laws they create.

The first set of rules is the calendar of deadlines for introducing bills, passing them out of their respective committees, house of origin, etc. Budget bills have somewhat different rules and for good reason – a lot of spending needs (and wants) must be reconciled, and that spending is dependent on other policy bills’ passage. The purpose behind this schedule is obvious – lawmakers need time to read and study proposals before they vote on them, and when deadlines are missed it means there isn’t time to do that reading and studying before the session ends.

Lawmakers approve that calendar, but then ignore it at will by declaring “emergencies” or exemptions for whatever reason they can concoct. Some flexibility must be built into the system – planning ahead is critical, but emergencies really do come up. We should never be mindless slaves to our own schedules. But generally speaking, the deadlines are there for good reason, and should not be ignored without very, very good cause.

The second rule is actually a state constitutional mandate that all proposed legislation may “embrace but one subject.” What constitutes a “subject” is open to interpretation, but the intent and wisdom of this single subject rule is clear. Lawmakers should make decisions on changes to the law one at a time, with changes to multiple statutes being appropriate only where those changes all directly interrelate to one another such that the legislation can’t be reasonably accomplished otherwise. Besides – single subject bills make it much harder for amendments to slip in unnoticed, either as “poison pills” to kill the bill or to lard up the law with individual legislators’ pet pork projects.

Most of what all good Americans hate about the Congress can be directly attributed to the U.S. government lacking these two principles of sound lawmaking.

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Sadly, every year our Legislature seems to be looking to Washington, D.C. and saying, “We should do it that way.” Large, multifaceted bills seem to be becoming more common in Carson City, and this year in particular the number of late submissions for major policy upheavals is staggering. 

Take AB236, for example. That bill changes how judges are allowed to treat probationers, radically alters penalties for drug dealing (but sadly not possession any more), significantly redefines dozens of theft crimes, majorly modifies eligibility for specialty courts, creates new bureaucracies (and expands old ones) to study inmate demographics and to make recommendations for future legislators, fundamentally transforms how vehicle- and home-invasions are handled, changes when prosecutors can seek to designate some a “habitual offender” … These are not “single subjects” in any fair sense of the word. Personally, I think most of the changes are for the better, particularly after the major amendment this past week, but there are a few provisions (the gutting of judicial discretion when it comes to probation violations, which I think is both bad policy and a separation of powers violation) would likely be a dealbreaker for me if I had to vote on the bill as a whole. AB236 should have been about a dozen distinct bills, most of which would have passed with broad support and little controversy. 

How do we expect anyone, no matter how intelligent or dedicated or hard-working, to really understand all the implications of a 160-page bill with 246 distinct subsections completely re-doing the way we regulate any industry, much less one as new and unknown as marijuana, when they only have a few days to digest it? That’s AB533, which was introduced just this last Tuesday. How about SB547, an “only” 36 page bill which makes major changes to energy policy and was introduced this Thursday? Or SB543, the 76-page beast which will impact the funding for every public school in Nevada? It wasn’t revealed until Monday and is so bad that everyone from teachers unions to Senate Republican leadership hates it.

(Some say that if everyone hates compromise legislation, that means it’s a good bill. Sometimes. But sometimes “everyone” hates something because it’s legitimately a pile of garbage.)

And that doesn’t even count the bills which must be considered which are subject to their deadlines, many of which will inevitably face such major amendments that they might as well be new bills. Or the gigantic and dense budget bills which almost no one will actually have read before voting on. A lobbyist told me a few weeks ago that there was mounting frustration in the building with what she described as “no sense of urgency” from lawmakers. She knew that the dithering then would lead to the insane time crunch that’s happening now.

These aren’t partisan issues. Regulating any industry is a detail oriented process which always carries the risk of doing more harm than good to both businesses, the economy, and public safety. The same is true for energy, education, or criminal justice policy. It’s about competence and leadership. It’s about trusting the public with your ideas and your specific proposals ahead of time, so that good legislation gets better and well-intentioned but bad bills die their appropriate deaths. 

No matter what happened before sine die, the policy changes coming out of this legislative session will be less than what they could have been because good principles of lawmaking, including timeliness and taking up one thing at a time were blithely ignored. Hopefully, the majority of elected officials (from the governor on down) who will no doubt return in 2021 will take these lessons to heart. After all – there will be a lot of messes from this session to clean up in two years.

Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a criminal defense attorney in Reno. Follow him on Twitter @orrinjohnson, or contact him at [email protected].