By John Marion
In 2007, the journal Sleep published an article suggesting a lack of sleep can cloud a person’s moral judgment. This result is something to consider as we approach the end of the General Assembly’s annual session.
Rhode Island lawmakers often conduct their final business in the early hours of the morning, just before they break for the remainder of the year. We can only speculate what effect these late-night sessions have on the judgment of legislators. We do know that the usual process in the final days of the legislative session – including the late nights when the $8-billion state budget is passed, as well as the final late-night session – is a recipe for mischief and mistakes.
Here are some numbers to consider.
Rhode Island lawmakers have been meeting three days a week since the General Assembly session began on Jan. 1. By Memorial Day weekend, they had introduced 2,126 bills and resolutions and sent 136 of them to Gov. Lincoln Chafee for his signature.
Out of those 136 bills and resolutions transmitted to the governor, more than half – 84 – were solemnizations of marriage; 21 were changes to city or town charters or revocations of corporate charters. Thus, 31 pieces of legislation have been passed, some of which were duplicate bills – so the bulk of consequential voting has yet to occur, despite more than five months of meetings and the rapid approach of the end of the legislative session. Now, that doesn’t mean each chamber hasn’t passed some of its own pet legislation, or that the legislators haven’t been busy with public hearings. But it illustrates how much of the final negotiating and voting is left until the end of the session.
Certainly no legislature has perfected the ritual of the end of the legislative session; stories of late-night shenanigans abound in other states. However, Rhode Island’s institutional arrangements make it particularly prone to problems because of the state’s concentration of power among legislative leaders.
Three years ago Common Cause released a report titled “Access Decade,” chronicling some of the problems that occur when the legislature rushes to finish its session with a flurry of votes. From a bill that legalized some fireworks without the input of the state’s fire marshal, to the Fiscal Stability Act that completely reshaped the relationship between municipalities and the state, the report highlighted important changes to state law that occurred in the final days of the legislative session and without sufficient public input.
“Access Decade” did little to curb the problems of last-minute legislating, however. Just last year, the leadership of the House of Representatives changed the governance structure for all of public education in Rhode Island, from kindergarten though college, with one late-night amendment to the state budget. Clearly the end-of-the-session rush remains a problem for good government in Rhode Island.
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Why does our legislature operate this way? The answer is complex.
As the Separation of Powers movement taught us, Rhode Island has a very powerful legislature vis-à-vis the other branches of government. Prior to the 2004 amendments, the Rhode Island Supreme Court went so far as to opine that Rhode Island had a “quintessential system of parliamentary supremacy.” Still, even post-2004 our legislature is quite powerful, and the legislative leadership enjoys a variety of advantages over their counterparts in other states.
Much of what makes the legislative leadership powerful is the lack of restrictions on legislative power in the Rhode Island Constitution. To take one example, Rhode Island has no fixed date of adjournment for the legislature – making it one of only 14 states which give lawmakers the freedom to determine when their business is done for the year, eight of which have professionalized legislatures. Rhode Island is also one of just nine states where there is little limit on the introduction of bills late in the session, a common source of concern. And, unlike 29 other states, Rhode Island does not have a “crossover” date by which point bills must be passed out of one chamber to avoid being dead for the year.
These factors, among many others, give legislative leaders enormous power in Rhode Island’s legislative system. They can determine when the legislature ends for the year, control the flow of last-minute votes, and allow the roughly 2,000 pieces of legislation introduced each year to sit idle until the final days. These institutional advantages have resulted in a huge information asymmetry between those who control the flow of legislation and outsiders – the public, the press, and groups who are trying to influence it. That asymmetry extends to rank-and-file legislators, too: 30 states grant lawmakers personal staff but Rhode Island isn’t one of them, and the tight control of personnel keeps those without access to good research in the dark.
This brings us back to the point about sleep deprivation. When you’re tired, your judgment is impaired. The belief that late-night sessions are the cause of problems has led to several proposals that would set an earlier curfew for the House of Representatives. But it wouldn’t matter if the legislative session ended in the middle of the day; the information asymmetry between those with power and those without trumps that problem. If during the final days of the legislative session you don’t know which of the 2,000 bills you might be asked to vote on, you can’t possibly prepare to understand even a fraction of the legislation.
Even worse, when a new piece of legislation emerges at the last minute – as happened with the budget amendment overhauling the state education boards – rank-and-file legislators and the public have no chance. And the ability to keep all legislation alive up until the moment of adjournment means that legislative leaders can bargain among themselves using any bill, and even potential legislation, as chips.
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So what can be done?
In the short term, the legislative leadership can be subjected to public scrutiny to remind them that their constituents are watching and that they shouldn’t use their advantages to abuse the public interest. Fortunately, a series of online upgrades made by the legislature can help. Online streaming of floor sessions allows you to monitor the legislature without even needing to be in the State House. And the new bill-tracking tool introduced just this month allows any member of the public to track bills the same way that lobbyists are paid thousands of dollars to do.
In the long term, the people of Rhode Island need to consider further constitutional limits on, or decentralization of, legislative authority. But like any constitutional change, there may be unintended consequences to limiting or decentralizing power. We need look no further than the U.S. Congress to see what can happen when rank-and-file lawmakers are allowed to build centers of power. From the 1940 to the 1960s, the House committee chairs were able to stifle civil rights legislation because they controlled the flow of legislation. Today individual U.S. senators abuse the threat of a filibuster to hold up bills and appointments.
The next few weeks will no doubt be eventful ones at the General Assembly. The end of the legislative session will demonstrate why paying attention to the process matters if you really want to understand what happens on Smith Hill. Common Cause hopes the long days and late nights will serve as a clarion call as to why rules reform is so important for all Rhode Islanders. •
John Marion is executive director of Common Cause Rhode Island. Ted Nesi will return Tuesday.