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The unconstitutional absurdity of every legislative session’s final days

Michael Schaus
Michael Schaus

Like virtually every prior biennium in recent memory, the end of Nevada’s 81st Legislative Session was a chaotic cavalcade of last-minute bill revisions, backroom deals, expedited hearings and opaque legislative practices. 

However, the absurdly frantic culmination of contentious legislative action is more than a mere annoyance caused by the collective procrastination of politicians—it’s a serious threat to the legislative transparency that is supposed to be guaranteed to Nevadans by our constitution. 

The state constitution has a fairly strong transparency requirement for the legislative process, designed to protect against the kind of chaos-laden insanity that occurs in the waning days of the session. Unfortunately, like almost all constitutional restraints, those requirements are blatantly ignored when the political practices of both parties are inconvenienced.  

According to the Legislative Council Bureau, Article 4, Section 18 of the state constitution requires that “all bills must be read three times” in each chamber, “and each reading must be on different days.” This requirement ensures that everyone from members of the general public to lawmakers themselves have multiple days to learn what, precisely, is within each bill. Furthermore, this requirement can only be disregarded “in case of emergency” if two-thirds of lawmakers in each chamber agree. 

Of course, what politicians consider to be an “emergency” differs dramatically from the word’s common usage. 

At the end of every session, lawmakers declare that the arrival of a particular date on the calendar—the date pre-scheduled to be sine die—somehow constitutes an “emergency” as they vote to dispense with the rules and engage in a frenzied blitz of frantic political maneuvering. 

The legal definition of an emergency is “a sudden, unforeseen happening requiring action to protect lives or property.” The arrival of the 120th day of the legislative session isn’t exactly an “unforeseen happening.” With the possible exception of a few sketchy weeks in 2020, pretty much everyone knew that date would eventually arrive. 

However, if there’s one area of strong bipartisan agreement between politicians, it seems to be an unspoken belief that the words used in the Constitution are rendered meaningless should they present a shared political inconvenience for our electeds. 

And the end of the session certainly presents a shared political inconvenience.

The suspension of rules, however, renders the constitution’s entire assurance of a transparent legislative process utterly ineffectual and impotent. After all, knowing that such constitutional requirements will eventually be suspended, politicians have little incentive to pass anything controversial, contentious or otherwise truly noteworthy earlier on while the rules still apply. 

Even if the arrival of a predetermined date on the calendar actually did constitute something vaguely similar to a legally defined “emergency,” abandoning the constitutional requirements for legislative transparency still requires approval from two-thirds of members in both chambers.

The deliberative, cumbersome and time-consuming process of passing legislation under the normal rules, in other words, is so prioritized by our constitution that its suspension requires approval from a supermajority even in times of a genuine threat to life or property. 

Given the contentious partisan squabbles that take place over tax-hiking bills that require two-thirds support, one would think getting approval to effectively shred constitutional requirements would be similarly difficult—especially when it is merely in response to poor time-management skills. 

But it’s not.

In fact, suspending such rules at the end of the session is so commonplace, it is done with nothing more than a casual—almost mundane and parenthetical—voice vote. Routinely, even when the minority party has the votes to obstruct, everyone still willfully goes along with the charade of pretending the end of the session is, in itself, an emergency worth suspending the rules that have governed the rest of the process. 

One could argue that using this critical opportunity to gain political leverage would have dire consequences for bills that hadn’t yet progressed far enough in the final days—and one would be right. Which is precisely the point. 

Such potential obstruction is supposed to be a feature of the system, not a bug. If the minority party was to ever make it known they plan to unify against the suspension of the rules, the majority party would have little choice but prioritize their important bills much earlier in the session… with three full days (in each chamber) for lawmakers, lobbyists, activists and citizens to review, debate and consider each proposal. 

Unfortunately, the political class in both parties considers the chaos at the end of the session to merely be “part of the game” rather than any serious subversion of constitutional order—thus the predictable and procedural vote to declare an “emergency.” 

The political inconvenience of poor time management, however, should not render meaningless the constitutional assurances of a transparent and accountable legislative process. For lawmakers to so casually pretend the mere fleeting of time justifies such action is an insult to the citizens they ostensibly serve. 

Moreover, it’s a demonstration of just how little our electeds think of their obligation to respect the rules “we the people” have put in place governing their behavior. 

Michael Schaus began his professional career in the financial sector, where he became deeply interested in economic theory and the concept of free markets. Over a decade ago, that interest led him to a career in policy and public commentary—working as a columnist, a political humorist and a radio talk show host. Today, Michael is director of communications for the Nevada Policy Research Institute and lives with his wife and daughter in Las Vegas. Follow him on Twitter at @schausmichael.


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