Good bills can take a long time, and several failures, to turn into good laws. In 2010, Rep Jules Bailey began work on what would eventually become HB 2438, a bill addressing teen violence. Bailey did all the work necessary to prepare the bill for the 2011 session: he worked with stakeholders, he lined up support among legislative colleagues, and he came to the session backed by a broad range of supporters.
Yet the bill failed.
I spoke with Bailey this morning about how we got to the moment captured in the video. The conversation was a bit hurried — he was about to testify in a committee — but we got through the story. And while it’s typical of how good policy can be thwarted, it’s atypical in the outcome seen on the House floor yesterday. A day later, Rep Bailey is still amazed at the outcome.
The bill was filed pre-session, and, following a public hearing in early March, it went — nowhere. This is not unusual in the Legislature, even for “good” bills with broad support. In 2011, with the 30-30 split in the House and shared chairs in committees, the obstacles facing bills are even higher. In the case of SB 2438, one of the roadblocks turned out to be legislative procedure: the Damoclean sword of “the fiscal”. As in: will this cost the state any money?
Fiscal is both a concept and a procedure. Some bills cost the state money; some bills do not; and some bills fall into a gray area. The determination of of whether or not “a fiscal” exists — will this cost the state any money at all? — is frequently left in the hands of the committee chair or bill sponsor. If it is determined that a fiscal does, or could, be part of the bill, then it’s up to the Legislative Finance Office (LFO) to determine just what that fiscal is.
That’s fiscal as a concept. Fiscal as a procedure is another story: using it to stop a bill. In 2011, a common refrain around the Leg is “it’s going nowhere if it’s got a fiscal attached”. The fact that a bill carries some expense for the state is, for a number of legislators, reason enough to oppose it. Even bills they agree are good policy: if the thing has a fiscal attached, it’s toast.
Which opens the door to claiming a fiscal in order to oppose a bill (as well as denying one in order to keep a bill moving). HB 2438 was stopped in the House because of claims that it had a fiscal; it did, but it was not usual kind. One of the goals of the legislation was the plan to conduct a longitudinal study on what are the most effective ways to combat teen-on-teen violence. Bailey said they expected to be able to get private foundation money for this study, but, since the money would come into the public process via this legislation, it would have, in effect, a fiscal. And that’s where it stalled out: on the claims of a fiscal.
But in Salem, dead is not always dead. One trick for revising a bill is to include it as an amendment in another bill. In order to do that, the receiving bill must have an appropriate “relating clause” — that tiny phrase at the beginning of a bill that says what the bills about. In the case of HB 2111, the bill into which HB 2438 was inserted as an amendment, the relating clause was broad — Relating to public health — which meant HB 2111 fit into its welcoming arms quite snuggly.
So with the support of Sen Chip Shields, Bailey was able to give new life to his bill. Moving a bill forward in this manner requires a collaborative effort, and Shields, said Bailey, “went to bat” for his bill (now an amendment). The fiscal element that had been the problem in the House was removed, all parties were on-board to move forward, and it looked like Bailey would get this important bill passed into law.
Enter the Gresham-Barlow School District. They contacted their state Senator, Lorrie Monnes Anderson, who just happens to be Chair of the Senate Health Care Committee — the committee that was scheduled to hear HB 2111 (which, of course, had passed the House earlier). Gresham-Barlow, according to Sen Monnes Anderson in a phone call this afternoon, was concerned about a “gray area” regarding incidents that occur off school grounds but might be held to be the school’s responsibility. They were also concerned the bill might place an “unfunded mandate” on them, despite the work of Bailey and Shields to make the bill revenue-neutral.
According to Bailey, when he learned this, he had the bill’s supporters contact the district and assure them that there would be, in fact, no cost to them. That had been one of the goals of the legislation from day one: to avoid unfunded mandates. The school district dropped their objections to the bill, said Bailey, but Monnes Anderson did not allow Bailey’s amendment back into the bill. The Senate passed 2111C — the bill without the Bailey amendment — effectively killing nearly two years of work that began with Raphael House contacting Bailey in 2010 to ask his help in dealing with an epidemic of teen violence.
At this point, the story becomes one of he-said/she-said. As a friend, constituent and supporter of Jules Bailey, and having also spoken with Sen Monnes Anderson, who I also support on most issues and who has championed a lot of very good bills, I’m just going to say this: This stuff happens during the legislative session. There was also no good reason for this bill to have been killed in the House Human Services committee, but that’s been Rep Vic Gilliam’s job this session: to kill bills the Democrats have worked for (including, in his other Co-chairing role, to stop the plastic bag ban). This stuff happens.
Committee chairs are territorial. The amendment to HB 2111 that was Bailey’s original HB 2438 was substantial, and Monnes Anderson did not feel her committee had the time they needed to vet it properly — and she had two Republican committee members opposed to the bill anyway. In the end, she decided to move HB 2111 in the same form it arrived from the House: without Bailey’s amendment.
And that’s how we got to the House floor session of June 2nd.
Bailey did not expect to prevail. “I thought I’d get 5 or 6 votes,” he told me. He spoke to Rep Mitch Greenlick, who would carry the bill (present it for a vote) before the session, and explained why he would be speaking and voting against the bill (which he supported otherwise). He had already received the commitment of Rep Greenlick’s Co-chair on the House Health Care Committee, Rep Jim Thompson, that, following passage of HB 2111C, the committee would hold hearings during the interim and would, if necessary, present Bailey’s bill as a committee bill in 2012. So when he rose to speak against the bill, Bailey knew he the bill would pass but that his original bill, HB 2438, would live on and become law next year.
But instead, he persuaded 21 of his Democratic colleagues to vote No and send the bill to a conference committee. (The 14 Republican Nays were not about the amendment but in opposition to the entire bill.) The conference committee will attempt to work out the differences between the two chambers. The only difference, of course, is regarding the Bailey amendment. If the conference committee can resolve the issues Monnes Anderson raised, then both chambers will vote on HB 2111D — with the Bailey amendment back in the bill. Otherwise, the House will pass HB211C and the matter will be handled during the interim by Co-chair Thompson.
Rep Jules Bailey’s bill will become law. But if it takes until 2012 for this to happen, this is very clear:
When Yashawnee Vaughn died, the Legislature had been in session less than two months. If Bailey’s amendment is not passed into law in 2011, another 6-12 months will pass before groups like Raphael House have the means to begin dealing effectively with teen-on-teen violence. The tragedies will continue until we can intervene and help our kids make decisions that save their lives, not end them. Bailey’s amendment to HB 2111 has no cost to the state and it will save lives.
Why would anyone object to that?