TOPEKA — Rep. John Rubin’s tenacious advocacy for transparency in the Kansas Legislature irritates peers.
Some Capitol insiders delighted in pouring contempt into observations about his notions of open government. Rubin was heckled in the hallway by a fellow lawmaker. A few conservatives asserted privately their Johnson County brother would spread reform fever too far and get Republican incumbents thrown out of office.
“Leadership was telling members of the caucus in no uncertain terms they were expected to vote against the so-called Rubin Rules,” the namesake said.
Rubin, ringleader of a rare constellation of liberals and conservatives committed to the cause, raised the ire of high-ranking colleagues by proposing all nonprocedural floor votes be recorded so the public could get a better sense of legislators’ perspectives. That proposition was labeled heresy before being spiked by the House. A proposal to block post-midnight floor debates, which let work continue under cover of darkness, was adopted in the House but rejected by the Senate.
Instead, this rock-in-the-shoe representative and accomplices had better luck amending a rule exploited by House and Senate negotiators to bundle bills on broad topics such as agriculture, taxes, abortion, energy and insurance. The scheme involves consolidation of wildly popular bills with onerous legislation incapable of surviving on merit alone. These larded ships of state are forwarded to the full House and Senate for no-amendment, yes-or-no votes.
Bundling advocates viewed the tactic as a reasonable and potent tool for moving bills favored in one chamber over roadblocks in the rival chamber.
“I have never considered bundling to be a problem as long as the primary rule is followed,” said Senate President Susan Wagle, R-Wichita. “It first has to have passed one body.”
Sunshine or not?
Critics framed bundling as an undemocratic crutch intended to foment confusion about components of bills and promote harried deliberation. They derided omnibus bills as political Christmas trees festooned with special-interest ornaments.
“It’s hard enough sometimes with one complex bill to understand the implications and consequences,” Rubin said. “Try multiplying that by 10 when you don’t know what’s in any of the bills. The likelihood that most members are even marginally well-informed on the votes we are asked to cast on these multi-bundled bills is slim.”
He added: “I have to hold my nose to vote for four or five things I hate in order to get four or five things I want or vote no and lose five things I think are important. That’s no way to make public policy.”
At the urging of Team Rubin in January, after two years of false starts, the House approved a two-bill maximum on bundling. The Senate cheerlessly received the recommended rule changes from the House. Senate Majority Leader Terry Bruce, R-Nickerson, hit the brake on floor debate in a bid to stall the House’s assault on unlimited bundling.
Sen. Jeff King, an Independence Republican, argued the House’s preference for a cap of no more than two bills was unworkable.
“Any time you have an artificial limitation, the fear is you limit the ability to pass good, popular legislation, because you’ll lack a vehicle to do so,” King said.
He said Kansas lawmakers negotiated no less than 28 bundled bills in the 2013 and 2014 sessions that would have violated the two-item limit ratified by the House.
Hefty bundles of legislation are creatures of one of the most influential institutions in the Capitol — the conference committee. These panels consist of three House and three Senate members. The majority party holds two-thirds of the negotiating positions. Conference committees meet when necessary to work through conflicts between chambers.
Fruit of such talks is often harvested in final days of the annual session, which intensifies heat on members to accept deals they had no part in shaping. Conference committee meetings are public, but genuine horse-trading still takes place in private among leadership allies.
In February, GOP power brokers in the House and Senate finally agreed to limit bundling to the base bill plus four other bills. The bargain specifically exempted tax committees from any restriction.
“Their position was that bundling was necessary to get legislative business done,” said Rep. Blaine Finch, R-Ottawa. “This compromise is by no means perfect and does not go far enough, in my opinion, at reducing this practice.”
The final vote on the bundling overhaul was a bipartisan 27-7 in the Senate and 93-38 in the House.
The Kansas Association of Counties, which watched as county governments took a hit in the 2014 session from a bundled tax bill, cautioned the rules modification would do little to restrain legislators because the typical bundled bill consisted of four separate pieces of legislation.
The new self-imposed limit wasn’t responsible for measurably slowing action in the 2015 session, which was the longest in state history. Intransigence among conservatives on tax increases kept lawmakers in Topeka for 114 days. A typical session lasts 90 days.
“I don’t think it caused a problem in putting legislation together,” said House Minority Leader Tom Burroughs, a Kansas City Democrat wary of bundling “as ripe for abuse.”
Bundling isn’t a consistent element of statehouse political life in the four states surrounding Kansas.
Rep. Dickey Lee Hullinghorst, speaker of the Colorado House, said a conference committee could be formed by the General Assembly to address disagreement between the House and Senate on a single bill. The state constitution, legislative rules and historical custom focuses the process on one bill rather than a groups of bills, she said.
“The ‘bundling’ of bills in a conference committee is, frankly, a concept or practice we are not familiar with in Colorado,” said Hullinghorst, a Democrat from Boulder.
Nebraska’s nonpartisan, unicameral legislature has no need for conference committees. There is no Nebraska House. All members of the Nebraska Senate meet in regular session and amend bills without limit as long as alterations adhere to the single-subject rule.
In Missouri, conference committee work unfolds in a manner similar to that in Kansas. House and Senate negotiators confer on specific bills. Bundling isn’t encouraged, but it occurs if proponents can triumph over parliamentary objections.
Jan Harrison, clerk of the Oklahoma House, said a quarter century ago lawmakers in the state abused the conference committee process by rushing action on newly minted bundled bills.
“The paper would still be hot and they’d expect an immediate vote,” she said.
Currently, deals struck by House and Senate negotiators are required to sit idle for 24 hours and a written summary of amendments must be attached.
“It’s become a lot more transparent,” Harrison said.
In Washington, D.C., congressional opponents to comprehensive bundling haven’t made much progress on reform under both Republican or Democratic leadership. The temptation to slide favors into packages and dictate outcomes remains too great.
Michael Smith, a political science faculty member at Emporia State University, said the influence of bundling in Kansas could be illustrated by examining passage of the monumental 2015 tax bill.
The bill had elongated revenue-enhancement tentacles to get a grip on a projected state government deficit in the current fiscal year exceeding $400 million. Legislative staff working with the tax conference committee struggled to update spreadsheets to mark boundaries in shifting political sand.
The quest for a bigger revenue mixture capable of gaining acceptance by the House, Senate and governor involved consideration of dozens of bills or concepts. Moving any piece of the tax puzzle in or out either added or subtracted legislators’ votes.
Outcome of negotiations, which included closed-door intervention by Gov. Sam Brownback, increased the state’s general sales tax to 6.5 percent, up from 6.15 percent. The package contained a $30 million amnesty for tax dodgers, a cigarette tax hike of 50 cents per pack and a property tax lid for cities and counties. It slashed itemized deductions and halted scheduled income tax cuts.
Most of the final bill wouldn’t have passed if offered a piece at a time, Smith said. In both chambers, the tax bill was adopted with the minimum number of votes required by the Kansas Constitution.
“If you run a tax increase alone, without sweeteners, very few people who want to get re-elected will vote for it,” Smith said.
Senate Minority Leader Anthony Hensley, D-Topeka, said tax committees shouldn’t avoid the bundling harness. He said it made no sense to exclude a pivotal slice of the Legislature’s business from mandates applicable to all other bills.
“It’s important in the interests of transparency,” he said. “If we’re going to pass tax policy, I’d be in favor of not bundling any bills.”
House Speaker Ray Merrick, R-Stilwell, defensed bundling of tax and budget bills. Linking expenditure and revenue measures offers people an opportunity to “plainly see how the numbers add up,” he said.
Despite the new limit in Kansas, engineers of bundling flexed their muscles.
For example, House Bill 2183 contained a series of changes to election law requiring 12 pages to summarize.
A measure providing state funding for the Kansas judicial branch was infiltrated by inserting a stipulation that appropriation of aid would be contingent on outcome of a lawsuit before the Kansas Supreme Court. While not typical of a bundled bill, the intent was to wed a must-pass bill with a rider not welcomed by all.
“The attempt to make court funding contingent on the courts’ decision in a specific case is shameful,” said Rep. Steven Becker, a Buhler Republican and former district court judge.
In 2014, the Senate Ways and Means Committee bundled reforms into a bill necessary to bring the state into compliance with a school finance court ruling. GOP leaders stuffed the appropriations bill with changes to licensing and due process rights of teachers. They tossed in a tax break for corporations donating to private-school tuition.
Tussle not over
Rep. John Wilson, D-Lawrence, said anti-abortion forces were among the Statehouse’s clever bundlers. He said a bill signed by Brownback prohibiting abortion based on gender, a policy few could oppose, was joined with a “lot of bad stuff.”
He said a legislator voting against that bill could expect to be targeted in the next election by brochures mailed to voters asserting the lawmaker was a defender of gender-based abortion.
“That is why you would be afraid to vote against a bundled bill,” said Wilson, who prefers a one-bill, one-idea formula.
Rubin said bundling reform implemented in the 2015 session was meaningful because Republican House and Senate brass collaborated with lobbyists for years to thwart transparency reform. The new rules didn’t end the practice of compelling rank-and-file lawmakers to consume poison toppings on popular bills, but made a dent in the system.
“This is a partial victory,” Rubin said. “I’m not done and I’m going to go back and work it again. I believe we still have mega-bundling.”