Putting citizens last yet again
Irecently attended a reunion of former employees of Mike DeWine, governor of Ohio. He was a U.S. senator when I was one of his advising counsel on the Judiciary Committee. I took nascent statutory proposals and interfaced with legislative-drafting attorneys to craft bill language.
Legislative-drafting attorneys work as a nonpartisan group for Congress writ large, which allows them to focus on technical writing. In contrast, advising counsel (the position I held) provide broader perspective, aptly precluded to nonpartisans, and intermediate between legislative-drafting attorneys and the specific legislators who hired their advising counsel—optimizing legislators’ intent and minimizing unintended consequences.
Arkansas unfortunately doesn’t provide lawmakers these tools. Legislators are forced to interface directly with legislative-drafting attorneys in the Bureau of Legislative Research (BLR) without the aid of advising counsel.
Because most senators and representatives aren’t lawyers—which is great for ensuring diversity of viewpoint (the real diversity)—no lawyer chosen by any given legislator reviews BLR’s technical language to determine whether the elected-official’s broader perspective is fully captured.
State agencies, however, not only have their own advising attorneys, they somehow cross governmental branches and direct the Legislature’s BLR attorneys to write proposed bills for executive-branch agencies—before any legislator is ever involved.
Then, agencies lobby legislators to present their prêt-à-porter agency-benefiting bills, while “kindly” providing lawmakers talking points.
This agency-biased drafting process results in legislators often unable to sufficiently vet bills favoring government power over the public’s rights and freedoms— precisely because legislators don’t have their own advising counsel. As Tom Sawyer shrewdly discovered, the best way to get folks to work for you is not to let them know they’re working for you.
No candidate campaigns to do the will of government agencies. Many politicians promise to protect you from government overreach— the greatest threat to freedom and democracy. Yet many legislators unintentionally wind up doing the former due to the inappropriate relationship between executive-branch agencies and the Legislature’s own BLR.
Along these lines, conservative freedom-loving state Rep. Richard Womack recently expressed apt skepticism of an agency’s wishlist bill (HB1726) that would have effectively killed the Freedom of Information Act, because everyone testifying in favor of the bill worked for the government.
Thankfully, that bill was defeated, but not before a cavalcade of on-the-clock taxpayer-funded mouthpieces lobbied against your interests. University of Arkansas for Medical Sciences’ vice chancellor of institutional relations (uh, lobbyist) Andy Davis, with a salary of $232,900, didn’t testify, but told me at the hearing: “we like the bill.” What’s not to like—if you work for government?
And while private lobbyists must register with the government, these agency mouthpieces (paid by us) have no such requirement. Still think the people are on a level playing field?
That bill thankfully died, but nonetheless, the FOIA gets updated nearly every legislative session. This session alone, the FOIA was updated nearly a dozen times. Some updates clarify the law. Some expand it. Many, sadly, narrow the law.
The Steinbuch Award for Best FOIA Update this Session belongs to Alan Clark, whose now-enacted bill requires officials to cite the exemptions relied upon when refusing to provide records. (Ya think?)
Clark was assisted by private attorney and FOIA advocate Joey McCutchen. Unlike executive-branch agencies, however, Joey did not have access to BLR’s legislative-drafting attorneys before Clark was involved, because citizens don’t get that special-insider privilege.
Go ahead, call BLR and ask whether they’ll draft you a bill. They’ll politely tell you no. (How’s that “level playing field” working out?
In fact, the Municipal League— the private organization paid with your tax dollars by city bureaucrats— previously had the same direct access to BLR as state agencies still have. Thankfully, the Municipal League’s special privilege—not available to the public—ended last session.
Consider further that BLR’s technical-drafting attorneys are overwhelmed with requests from legislators during session. Allowing agencies in the queue hinders legislators’ access precisely when they’re most representing you.
Seems that two separate branches of government sleep in the same twin bed with a short-sheeted comforter on a cold January night because one branch crashed the hostel. This needs changing.
Executive agencies’ taxpayer-funded army of lawyers should draft their own proposed bills, just like everyone else. Separation of powers means the separate branches of government must be, well, separate. So, no poaching of legislative attorneys by executive-branch agencies! And legislators need their own advising counsel who will ensure that your interests, as expressed by legislators, are protected.
This problem can be fixed. The Legislature should create attorney-adviser positions for legislators and no longer allow executive agencies to purloin the legislative branch’s in-house technical-drafting attorneys’ services.
Our founding fathers designed a delicate system of government. One butterfly can cause ripples in the pond protecting the primacy of the people’s will. The issues raised here, however, are no capillary waves. This is an extinction-level asteroid strike. Only it’s our freedom at stake—not the woolly mammoth. This is your right to know.
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Correction: My column last week had Nate Coulter running against Mike Huckabee for lieutenant governor in 1996. That special election was actually in 1993.