December 23, 2020
Introduction & Context
As the 65th Wyoming State Legislature completed its budget session in March of 2020, Americans were just beginning to learn about the realities of the COVID-19 pandemic. In response to this unprecedented emergency and its resulting economic fallout, the 116th U.S. Congress passed the Coronavirus Aid, Relief, and Economic Security Act, also known as the CARES Act—a $2.2 trillion economic stimulus bill that was signed into law by President Donald Trump on March 27, 2020.
On April 24, the U.S. Treasury Department distributed $1.25 billion of CARES Act funds to the state of Wyoming. These funds arrived with a ticking clock—the money had to be spent, it was understood, by December 30, 2020, and whatever remained would likely need to be returned to the federal government. The Treasury also issued distribution guidelines, which would subsequently be updated multiple times, which required legal interpretation at the state level, and about which there are still some differing opinions and unanswered questions nationwide regarding what should and should not legally qualify as “eligible expenditures” of the money.
Here in Wyoming, if the funds were to be distributed as quickly as possible and ahead of the December 30 deadline, the leaders of the executive and legislative branches agreed it would require the involvement of the State Legislature, the passage of new legislation, and coordination between the legislative and executive branches.
The Wyoming Legislature’s Management Council and Legislative Service Office staff responded quickly, adapting to the unprecedented challenges posed by the novel coronavirus pandemic. The Council used existing technologies to create an entirely new, virtual process by which the Legislature and legislative committees could meet on an emergency basis. Legislative leadership and staff demonstrated a deep commitment to ensuring public access, oversight, and participation in the “new normal” of COVID-19, continuously making improvements to the virtual process based on public input and feedback.
Virtual committee meetings are duly noticed online, and the public has opportunities to provide both written and oral testimony. Virtual meetings are broadcast live and recorded on video, which is then made permanently available for viewing online. Although this process is not perfect, it has in some ways set a new standard for government transparency and openness in Wyoming. It has created new avenues and opportunities for public engagement and more involvement by a broader range of the public than was previously possible.
On May 15 and 16, the Wyoming State Legislature met virtually using a “mirror bill” process to pass four emergency, time-sensitive bills. These bills had been drafted and passed by the Management Council in committee, with public input, and were limited in scope, meant specifically to help the governor respond to the unprecedented public health emergency as quickly as possible.
Eight months later, as we head into 2021, COVID-19 has killed more than 300,000 people in the United States and continues to surge nationwide, with more than 3,000 people dying from the disease in this country every day. As the 66th Wyoming Legislature prepares to convene, and with widespread public access to a vaccine still months away, legislative leadership is developing and implementing a plan to do the people’s work as safely as possible amid this deadly pandemic.
Current proposals before the Legislature include convening remotely, delaying the session, limiting the total number of bills considered, and implementing a “mirror bill” process.
The Equality State Policy Center understands the impulse to employ the “mirror bill” process in these circumstances, but we implore the Wyoming Legislature to use the traditional legislative process instead.
The traditional process upholds the spirit and intent of the Wyoming Constitution and fulfills the vision of the Founders.
The “mirror bill” process—even in the best of circumstances and with the best of intentions—does not. It is a deeply flawed, inferior approach to lawmaking that undermines the wisdom and intent of a bicameral legislature. It compresses the timeline for deliberations, eliminates the one-chamber-at-a-time principle, eliminates the key “crossover” moment (which allows for a fresh infusion of public input and new information), and severely limits—even eliminates at key points—public input and involvement.
In this paper, we will detail why we believe the mirror bill process undermines the inherent strength of a bicameral legislature and subverts the Founders’ vision for the different roles the House and the Senate are meant to play. We will describe the ways in which the mirror bill approach also eliminates much of the healthy—and necessary—risk that a given bill will quite likely fail to survive the process if it is poorly or incompletely informed or is otherwise an inferior product. The mirror bill process, we therefore conclude, should not become a normalized, accepted way of doing the people’s business in Wyoming.
The Historical Foundation of the Traditional Legislative Process
The Founders of Wyoming and the Founding Fathers of the United States of America employed the concept of a bicameral legislature for clear, carefully considered, and well-documented reasons. The traditional legislative process in Wyoming seeks to uphold this vision:
The founders intentionally created the House and the Senate to be different from each other, so they could fulfill different, essential roles in the deliberative process.
- The House has more members, and is the body meant to be “closer to the people.” It has a greater number of seats per represented population, and more frequent elections for those seats. It is traditionally the body where the people tend to see their imminent and short-term concerns given more due, and where the current attitudes of the people are more likely to be voiced and championed.
- The Senate, with fewer seats less frequently up for election, is meant to be the legislative body where cooler deliberation is more likely to prevail over time, and where longer-term considerations are more likely to be represented and championed.
- Each body, therefore, is meant to play different, but essential roles in the legislative process. The traditional legislative process honors this constitutional vision.
- The traditional process also allows for essential public participation from start to finish and at key points in the deliberation. It affords the public multiple opportunities to participate, track, observe, identify problems and shortcomings, help craft language and amendments, and continuously inform the ongoing, ever-evolving discussions and debates.
- Equally important, it allows for the adequate passage of time, which is itself an essential element of the deliberative process.
The traditional legislative process embraces the time-honored wisdom that the passage of legislation should be difficult and deliberative—and it should be easier for a bill to die than for it to survive. This encourages good faith, a more robust debate, and the creation of higher quality legislation.
The Strengths of the Traditional Legislative Process
The traditional legislative process for introducing, considering, and passing (or defeating) proposed legislation in the Wyoming State Legislature is appropriately deliberative and formal.
The process gives legislators, agencies, and the people a chance to register concerns and input at various stages and is in the spirit of the Wyoming Constitution. This is the process that was envisioned by the founders and is wise and appropriate by design.
- The traditional legislative process requires that any proposed piece of legislation first be introduced to, and considered by, one of the committees of either the House or the Senate.
- During the committee process, members of the public have access to the proceedings. They can read a draft bill and proposed amendments if any, listen to committee deliberations, listen to testimony, and they can testify themselves if they so choose.
- If a bill is successful in committee, it is then subject to the rules and deliberative process on the “floor” of that body, where, if introduced, it can be considered by the Committee of the Whole (the full membership of the House or the Senate) where it might be amended, and where it might pass or fail.
- If a bill passes this gauntlet of the House or the Senate, it must then “crossover” to the other body, where (if time, rules, and interest allow) it can be assigned to a committee in the second chamber.
- The process is then repeated, beginning in that committee.
- This provides members of the public a crucial, second opportunity to engage with the bill at the committee level, interacting with and hearing from a different group of lawmakers as this group deliberates the bill’s merits anew.
- This allows more time and visibility for the bill and it provides members of the public the chance to participate in the process not only with a different set of lawmakers, but also lawmakers from the other legislative body—when experts and stakeholders often present new information, answer new questions, ask, and answer questions that were raised in the other chamber, and present new ideas.
- This is the essential strength and function of the bicameral legislature as the Founders envisioned it: A bill that passes in the originating body must subsequently go through a similar process and the full scrutiny of the other body. In addition to a new round of essential public input, this also takes advantage of the strengths, expertise, and qualities present in the other chamber. And only after passing there can it take the next step toward becoming a law.
- Even if a bill passes the second body, the originating body must “concur” with any amendments passed by the second body for it to remain alive.
This “crossover” from one chamber to the other is one of the key pieces of the traditional process that enables the Legislature to uphold the vision of the Constitution—where any law, if successful, must be considered thoroughly and at separate times—by both the House and the Senate.
Problems with the Mirror Bill Process
The mirror bill process does not follow the traditional deliberative approach outlined above. It compresses the timeline for deliberations, eliminates the one-chamber-at-a-time principle, eliminates the key “crossover” moment (which allows for a fresh infusion of public input and new information), and severely limits—even eliminates at key points—public input and involvement.
The mirror bill process undermines the strength of a bicameral legislature and subverts the Founders’ vision for the different roles the House and the Senate are meant to play. The mirror bill approach also eliminates much of the healthy—and necessary—risk that a given bill will quite likely fail to survive the process if it is poorly or incompletely informed or is otherwise an inferior product.
The public, their representatives, and their senators should have ample opportunity to inform, improve, amend, and, if appropriate, kill any proposed legislation in either of the houses for a multitude of good reasons.
In the mirror bill process the same bill is introduced in both the House and the Senate at the same time.
- With both bodies working the same bill simultaneously, it is essentially impossible for citizens to adequately track both bills in both houses at the same time—therefore denying them the opportunity to participate in the process in both chambers, as envisioned by the Founders.
- The public is forced to choose one body or the other to track at any given point.
By compressing the timeframe for deliberations and eliminating the key “crossover” from House to Senate or Senate to House, the mirror bill process doesn’t provide adequate time and opportunity—as the traditional process does—for new information and new ideas to come to light.
- Legislators in one chamber lose the benefit, after further deliberation and more public input, of responding to the debate in the other.
- Instead, both houses are debating the same bill at the same time with less input and less information.
The mirror bill process works against the public, against non-insiders, and against rank-and-file legislators by giving legislative leadership outsized influence and power over the introduction, crafting, amending, and passage of legislation.
- It makes the process less transparent. It moves too much of the deliberative process out of the light and into rooms unseen or unavailable to the public.
- It puts the bulk of essential deliberations meant to bridge the gap between the two bodies into the hands of conference committees, which are often unadvertised, thrown together on short notice, generally closed or inaccessible to the public, and whose deliberations are usually hidden from public view whether by circumstance or by design.
- This situation incentivizes behind-the-scenes decision making and negotiating, stimies healthy public debate, limits input from the public, and makes it much less likely that new information will emerge and be considered. All to the detriment of legislators and the public, as well as the final product.
Conclusion
For the reasons detailed above, it is our position that the mirror bill process does not uphold our time-honored traditions in Wyoming—and it fails to fulfill the vision and wisdom of the Wyoming Constitution. It makes the crafting and passage of legislation essentially an insiders’ game, and it ensures that any resulting laws will be less informed, less considered, less tested, and less likely to be in the best interest of the people of Wyoming.
In times of emergency, legislative leadership might determine that it is in the best interest of the state to foster a more efficient legislative process to address critical, time-sensitive problems. Rather than using a mirror bill approach, we recommend limiting or postponing consideration of any off-topic individual or committee bills until after the emergency is addressed.
Whatever decisions we make together as a people and as a citizen legislature, we should never allow the mirror bill process to become a normalized, accepted way of considering and passing legislation in Wyoming. The traditional process is the appropriate approach. It upholds the spirit of the Constitution and honors the vision, purpose, and intent of a bicameral legislature.