The Kansas Reflector welcomes opinion pieces from writers who share our goal of widening the conversation about how public policies affect the day-to-day lives of people throughout our state. Burdett Loomis is an emeritus professor at the University of Kansas.
In California, it’s called “gut and amend,” in Oregon it’s “gut and stuff,” in Louisiana, it’s just “gutting,” and in Kansas, it’s “gut and go.” Oregon and Kansas tie for the most inventive phrasing.
What are we talking about? The widespread practice of substituting the language of one legislative bill, in its entirely, for another, which the Kansas Reflector bemoaned in a recent editorial.
Examples of the tactic are legion. In the Kansas Legislature’s 2017 session, McClatchy’s Bryan Lowry reported that of 104 laws passed, almost a quarter (24) followed a “gut and go” route.
On its face, the gut-and-amend procedure seems completely anti-democratic. These maneuvers often take place at the end of the legislative session, with almost no public scrutiny. Reporters may follow the process, but in the crush of late-session legislating, the newly inserted policies frequently sneak through.
Sounds like it would be a no-brainer to ban this questionable tactic and insist on full transparency. In a perfect world, it would be. But no legislature comes close to qualifying as a perfect world.
A legislature is simultaneously a set of individual lawmakers who represent diverse constituencies and a collective body, whose members must come together to enact laws that will affect entire states or nations.
Simply put, legislatures must be able to pass laws, even as legislators represent disparate groups of constituents. This is no easy task. If a legislature cannot enact laws, then major issues are either likely to go unaddressed or, as we see in Washington, D.C., decision-making power flows to the executive.
Transparency within the legislative process is a laudable goal, especially since lawmakers have historically made many of their deals in private, either in sparsely attended committee meetings or in informal gatherings, often at after-hours watering holes. The Kansas Legislature, into the 1970s, was infamous for lobbyists’ social rooms at the Jayhawk Hotel and its members’ late-evening, well-oiled negotiations at the Caravan Club.
Still, no legislative body can conduct all its business in full view. Compromises may only be possible if lawmakers can negotiate in private, without their constituents and rafts of lobbyists looking over their shoulders, ready to leap at the first sign of apparent weakness.
Conversely, when power is closely held, by a House speaker or a Senate president, transparency suffers, as does participation by rank-and-file members.
So, what to do, especially when it comes to the widely disdained but oft-used “gut-and-go” maneuver?
First, the Kansas Legislature could modify its rules, so that moving a bill through both chambers late in the session would not require such a measure. This could be done if leadership and lawmakers simply agreed on rules that would clearly say if and when such a procedure could be used.
Second, the Legislature could allow the procedure, perhaps with the re-labeling of the bill title, but require a 72-hour period before it could proceed in the process. California passed such a rule in 2016 by initiative, which removed the decisions from the lawmakers’ hands. Still, legislators have faced difficulties when minor changes to legislation ran up against this rule.
A third, and more draconian, approach would ban the gut-and-go maneuver altogether. On Aug. 4, the Hawaii Supreme Court heard arguments to eliminate that Legislature’s “gut-and-replace” practice.
“We want to see the (lawmaking) sausage made. The legislative process is not supposed to be a shell game that can only be followed by those in the know,” the plaintiffs’ attorney argued.
In response, a former Senate president argued the court should not intervene in legislative rules and that, through technology, the public could adequately keep track of the process.
Compounding the problem for Kansas and other states is the limited duration of their legislative sessions. Although Kansas does not have a fixed adjournment deadline, there is great pressure to end the annual session within 90 days, by early May. Most regular legislative activity finishes by early April. That advantages legislative leaders, who control the agenda; “gut-and-go” procedures allow them to rush bills through both chambers, even when some provisions have never been voted on.
If we continue to have a part-time legislature and session deadlines, we may well need the gut-and-amend maneuver to finish up business in a timely way. But it should just be used near the end of legislative sessions, and only with protections, such as a 72-hour rule.
The legislative process is full of compromises and deal-making; that’s as it should be. The gut-and-go maneuver sometimes fulfills a need, but legislative leaders should rely on the tactic rarely, not to pass much of its overall output.
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