Bipartisanship gone bad: Anti-transparency bill is insulting

We often praise bipartisanship, but some of the worst abuses of process have broad agreement from both parties. You saw a clear example of that Friday, when a bill to largely exempt legislators from the Public Records Act passed out of both chambers in record time with basically no debate.

It’s hard to put a happy gloss on that kind of bipartisanship. It’s the kind of bipartisanship that says, “We don’t really care what the public thinks, we’re passing this anyway.”

Senate leadership revealed SB 6617 late Wednesday afternoon, it was discussed at a “work session” Thursday (it’s too late in the session to go through the usual committee process – an intentional decision), and it was passed as quickly as possible through the Senate and House Friday after a strangled debate.

What about time for public participation? They didn’t want your participation, obviously. The goal here was to pass the bill with no public input, despite the howls of newspapers and open government advocates, then take the political lumps and move on. No muss, no fuss.

What’s this all about?
In January a judge ruled that legislators’ records aren’t exempt from public disclosure. “The plain and unambiguous language of the Public Records Act applies to the offices of senators and representatives,” Judge Chris Lanese ruled. The ruling was in response to a lawsuit by news media outlets to access legislators’ records.

SB 6617 is an attempt to end that lawsuit. It would open up some legislative records, like legislators’ calendars, but has a retroactive clause that will keep their old emails and other records under wraps. The bill would hand over disputes about which records are disclosable to a legislative committee, with no judicial review allowed.

The bill tries to distinguish between lobbyists and “regular people” – as if that’s a big, bright line. The point of transparency is to know who is trying to exert political influence on the people who represent you – it’s not a matter that comes down simply to “lobbyists” and “not lobbyists.”

Because the judge’s ruling would have opened up far more records than this bill will allow, it’s incredibly disingenuous of some legislators to claim that this bill is a “step forward” for transparency. No, it’s a step backward.

Legislators have little to say
What are the arguments in favor of SB 6617? It’s hard to say, because legislators have said so little about it, beyond saying that the judge’s ruling for broader transparency is “unworkable” and “untenable” (damning-with-faint-praise kudos go to Rep. Gerry Pollet (D-Seattle), who at least tried to explain his support on public radio, though not particularly well).

The vast majority of legislators were unwilling to reveal to the Seattle Times how they planned to vote on the bill – clearly they knew it looked bad, but they were going to support it anyway. And when SB 6617 was actually on the floor, debate was strangled. Rep. Melanie Stambaugh (R-Puyallup), who voted no, said:

“Legislators were restricted in this debate and were not allowed to verbalize any argument against this bill on the House Floor. The House Floor debate consisted of one ‘pro’ speech from each side of the chamber and there were not any speeches against this bill, despite there being several ‘no’ votes. This is wildly different from other bills where members are freely able to stand and speak. It is very disappointing.”

Newspapers, not surprisingly, are unanimous in slamming this bill. News Tribune publisher David Zeeck told lawmakers at the hastily-scheduled work session Thursday, “I think you’re running the risk of demonstrating to the people that you’re setting up an imperial Legislature that’s not subject to the people knowing what it’s doing, particularly when you have no judicial review.”

Toby Nixon, president of the Washington Coalition for Open Government and a former legislator, sees SB 6617 as part of an overall disinterest in actual citizen input. He wrote on Facebook:

“[Legislators have] shown such contempt in many ways over the years through such things as introducing title-only bills, holding hearings on bills the same day they’re introduced, voting on massive bills and striking amendments such as the budget within hours of the text becoming available before legislators themselves have an opportunity to read it much less the public, cancelling hearings on short notice after people have traveled across the state to attend, etc. But the idea that a major bill with such huge policy implications is introduced and then on the governor’s desk for signature within 48 hours is just ridiculous…And that’s not even commenting on the content of the bill, which is an abomination as well.”

To add insult to injury, legislators included an emergency clause, which means it can’t be repealed by voters with a referendum for two years. What’s the emergency? There isn’t one, it’s just convenient for them.

A possible veto?
Gov. Jay Inslee said Thursday that legislators should learn to work under the same disclosure rules that all other public servants in Washington operate under. But because SB 6617 passed with enough votes to overturn a veto, some wonder if Inslee would bother to veto it.

He should consider it. At the very least, a veto would lengthen the process. With legislators passing this bill with basically no public input, a veto would require them to re-pass the bill and lengthen the amount of time the controversy stays in the public eye – and it deserves to be in the public eye.

A veto would also afford legislators the opportunity to slow down and do better. That’s not what they want, of course, but would be good for them all the same – and more importantly, good for the public.

By taking another stab at it, legislators could craft smart, tailored exemptions for communications from constituents that are sensitive or personal in nature. They could receive feedback from the public and open government advocates. They could admit the way they passed SB 6617 was wrong.

Many legislators I like and respect voted in favor of this bill, and I’m not unsympathetic to some of the issues SB 6617 attempts to address. But there’s no doubt the way they passed this bill was improper and showed contempt, unintentionally or not, for the public’s input.

The state’s Public Records Act says, “The people insist on remaining informed so that they may maintain control over the instruments that they have created.” The Legislature is one of those instruments, and the people insist on maintaining control over it.
-Rob McKenna

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Rob McKenna
Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.