Bleeding Heartland continues to catch up on the legislature’s significant actions during the session that ended on April 27. Previous posts related to the work of the Iowa House or Senate can be found here.
Republicans showed little interest in amending the Iowa Constitution during the 2019 session. Only one amendment passed both chambers. If and when that proposal appears on a statewide ballot, it will spark a costly and divisive campaign about gun rights and regulations.
The Senate and House debate over the pro-gun amendment is the focus of the first half of this post. Arguments raised on both sides will surely return in future television commercials and mass mailings.
The rest of the post reviews this year’s unsuccessful attempts to change the constitution. One amendment (backed by Governor Kim Reynolds) made it through the Iowa House, and four others advanced from a House or Senate committee but did not come up for a floor vote. The rest did not get through a committee, even though some of the same ideas went further last year.
THROUGH BOTH CHAMBERS AND HALFWAY TO APPEARING ON A STATEWIDE BALLOT
Altering Iowa’s constitution is a lengthy process. Two separately elected legislatures must approve identical language. Then the proposed amendment must receive a majority vote on a statewide ballot.
Any amendment approved this year or during the 2020 legislative session will need to clear the Iowa House and Senate again in 2021 or 2022 in order to go before voters in 2022.
Expansive pro-gun amendment
Senate Joint Resolution 10, later renamed Senate Joint Resolution 18, represents the second attempt to add the right to keep and bear arms to Iowa’s constitution.
The right of the people to keep and bear arms shall not be infringed. The sovereign state of Iowa affirms and recognizes this right to be a fundamental individual right. Any and all restrictions of this right shall be subject to strict scrutiny.
Republicans approved the same language in 2018, so in theory, the amendment should have been on the 2020 general election ballot. However, Iowa Secretary of State Paul Pate’s staff failed to publish the amendment in newspapers around the state before the 2018 election, forcing the legislature to start the process over. (The same thing happened during the last decade, delaying adoption of a less controversial amendment.)
This year’s debates on the pro-gun amendment played out just like last year. Democrats in both chambers advocated replicating language from the Second Amendment to the U.S. Constitution. Republicans insisted on wording that would require courts to subject any firearms regulations to heightened scrutiny.
The Senate took up the resolution on March 13 (video here). State Senator Brad Zaun, the floor manager, dodged questions from Democratic Senator Herman Quirmbach about whether his intent was to prevent the state legislature from regulating bump stocks or bazookas.
Democratic State Senator Tony Bisignano offered two amendments, which were voted down along party lines. The first would have added the Second Amendment language identically to the Iowa Constitution. The second would have kept most of the Republican-proposed amendment, striking the words “Any and all restrictions of this right shall be subject to strict scrutiny.”
Democratic Senator Bill Dotzler gave one of the most compelling speeches during the floor debate. He began by describing himself as an Army veteran and “owner of pistols, shotguns, crossbows, rifles” who is a “firm defender of the Second Amendment.”
My partial transcript:
What we’re talking about here is basically what strict scrutiny means. […]
So, my experience in the legislature has taught me this: words matter, and the words that you put into law can be interpreted different from what legislators think.
In the late 1990s, an Iowa House bill created an incentive for businesses to locate in “enterprise zones.” Dotzler asked in committee: what if a business from outside the enterprise zone moves into one of those zones, creating a depressed area in the former location? Would the state of Iowa be giving them extra incentives to move?
“And they [Republicans] said, well no, that’s not our intent, and we don’t mean that at all. And I said, well, this isn’t defined very well.”
After Governor Terry Branstad signed that bill into law, a company called Waterloo Industries left a depressed area and received incentives for moving into an enterprise zone.
And it was challenged [in court]. The Attorney General’s office went and said no, that was the intent of the legislature. It was ok to do that. It was fine.
That isn’t what the discussion was in committee!
That’s what attorneys do. They look at the words and they–I don’t think it makes a lot of difference here what you’re saying, unless you define it. And Senator Zaun, you didn’t define it. You just said, well, it isn’t your intent, it’s up to the people of Iowa to decide.
Dotzler expressed doubt that the people who could be voting on this amendment in 2022 will understand what strict scrutiny means, because “it’s too complicated to explain in a 30-second ad.”
So, if you know what it is and what your intent is, then let us know, because I’m deeply concerned.
Before retiring from John Deere, Dotzler worked with some people who had alcohol problems or mental illness or were abusing their wives. Like convicted felons, such people shouldn’t have weapons, he said. Under current law, we can stop that from happening.
Now, there are plenty of people in Iowa that are looking at the terminology “strict scrutiny” and thinking that your intent is that every person has a right to a weapon no matter what. That’s what I think it means. Every person. We don’t need background checks. We aren’t going to check to see if there’s a record on somebody. You can just buy a weapon anywhere. That’s what I believe it means. I haven’t heard anybody say any different. […]
What we do here matters, and I think you’re just throwing a jump ball up in the air to get my fellow gun owners worked up about something that makes them believe that this Democrat sitting in this seat don’t care about their inalienable rights to have a weapon, which I do. Because I own more than most. I don’t hunt, but I enjoy going to the range and utilizing them. Because I believe in my right of freedom, and I believe in protecting myself.
But I also believe that there are people that shouldn’t have weapons, and they shouldn’t have a right to them. And that’s what this debate’s about, and this is where I think you’re wrong. Because you haven’t really clarified what you mean. And I think you better.
In his closing remarks, Zaun denied that the resolution would allow domestic abusers or people with felony convictions to own firearms. He denied that there are “loopholes” at gun shows in Iowa. He goes to them regularly and always has to show his ID and permit to purchase a weapon.
Why demand strict scrutiny language? “We’re trying to give the power to the citizens of the state of Iowa to decide how important their Second Amendment rights are,” Zaun said.
Senators approved the constitutional amendment by 33 votes to 16, with Democrat Rich Taylor joining all the Republicans to support it.
Later the same day, the Iowa House took up the companion bill, House Joint Resolution 3. I clipped the relevant part of opening remarks by Republican State Representative Matt Windschitl, the floor manager.
Windschitl acknowledged that in the three other states with strict scrutiny language, there have been some lawsuits challenging restrictions. But he claimed courts in those states have not overturned the regulations.
It’s not overturned their permitting process. It’s not allowed felons to have firearms. It’s not putting firearms in the hands of domestic abusers. None of that. It has not happened. What makes us think that somehow in the great state of Iowa, our judiciary is going to view it any differently? […]
The strict scrutiny standard is simple, and here’s why I believe that we need it. We are on a constant endeavor to protect Iowans. We are on a constant endeavor to make sure they’re taken care of. Let’s give them the fundamental protections for this natural right that they need so that they can protect themselves, and let’s make sure that the government does not infringe upon that right.
Several House Democrats spoke against the amendment. State Representative Scott Ourth–who voted for a major pro-gun bill in 2017–warned that the GOP’s preferred language would make the issue needlessly controversial. Iowans might vote down Windschitl’s proposal, but they would overwhelmingly approve of the Democratic alternative: replicating Second Amendment language ing our state constitution.
It’s rare for members of the majority to speak against their own party’s bill. But State Representative Andy McKean, who was still a Republican in March, laid out the most detailed case against the GOP version. Like Ourth, he said he supported the Second Amendment. At the same time, he had “strong reservations about forcing judges to apply the strict scrutiny language to any and all gun-related legislation.”
Of the 44 states that have some version of a right to keep and bear arms in their constitutions, only three (Louisiana, Alabama, and Missouri) call for strict scrutiny, McKean noted. Eight states have rejected adding such language to their constitutions in recent years (South Dakota, Oklahoma, Illinois, Minnesota, Montana, Indiana, Florida, and Tennessee). Why?
Number one is the expense. The three states that require strict scrutiny for firearm legislation have become testing grounds for challenges to existing regulations, an expensive experiment for taxpayers. Laws that have challenged at considerable expense to the taxpayer including the following: felon and possession laws, a state law imposing a sentencing enhancement for the use of a firearm during kidnapping, a law prohibiting the possession of firearms while distributing drugs, and a law prohibiting possession by parolees with felony convictions.
Litigating such cases has cost millions of dollars. The fiscal note on Tennessee’s proposed law found that each lawsuit would cost the state $100,000. Criminal defendants have brought numerous frivolous suits.
Public safety was another concern, McKean said. Some of the lawsuits caused criminal prosecutions to be put on hold.
Another concern is treating the Second Amendment differently from our other Bill of Rights. Varying degrees of scrutiny are applied to all the other fundamental Bill of Rights protections. The Fourth Amendment is the most obvious example. Search or seizure has to be reasonable, not necessary to serve a compelling state interest.
The Eighth Amendment bars cruel and unusual punishment, but doesn’t require the government to justify the punishment as necessary to serve a compelling state interest.
And reasonable time, place, and manner restrictions are placed on speech in public areas where the rights of the speaker may come into conflict with the rights of others.
Requiring strict scrutiny for the review of all firearm legislation fails to recognize that there are a wide variety of matters touching the Second Amendment that call for different levels of scrutiny and fly in the face of established court precedent.
In the landmark Heller decision recognizing individual Second Amendment rights, the U.S. Supreme Court rejected the idea that strict scrutiny should apply to all gun laws. In fact, Justice Scalia’s opinion identified many reasonable gun safety laws, like those that prevent dangerous people from accessing guns, and keeping guns out of the hands of felons, as presumptively lawful–a very different standard from strict scrutiny.
Noting that Windschitl had expressed concern for self-defense, McKean said courts had already determined that any law burdening the right to defend oneself in the home was subject to strict scrutiny.
But as we move outside the home, intermediate scrutiny–which is also a tough standard to satisfy–is appropriate, because public safety interests merit increased protection.
By way of example, McKean mentioned permitting requirements for carrying a concealed weapon, minimum age requirements for buying or carrying firearms, barring people with felony convictions or domestic abusers from owning firearms, sentencing enhancements for using a firearm in the commission of another crime. These have nothing to do with self-defense and should not be subjected to strict scrutiny. Iowans support reasonable regulations of firearms.
McKean joined Democrats to support Ourth’s amendment, which failed by 52 votes to 47. But the House vote on final passage went strictly along party lines, 53-46. (The following month, McKean joined the Democratic caucus.)
THROUGH ONE CHAMBER, STALLED IN THE OTHER
Restoring voting rights to Iowans who have completed felony sentences
Article II, Section 5 of Iowa’s constitution reads, “A person adjudged mentally incompetent to vote or a person convicted of any infamous crime shall not be entitled to the privilege of an elector.”
Governor Reynolds told state lawmakers in January,
Our constitution takes away the voting rights of anyone convicted of a felony. Forever.
Only two other state constitutions have a similar provision, and last November, the people of Florida voted to remove their ban.
Through the power of clemency, the governor can restore those rights, and I have done that 88 times since taking office.
But I don’t believe that voting rights should be forever stripped, and I don’t believe restoration should be in the hands of a single person. […]
Our founders gave us a process to amend the constitution, should the passage of time change our view. Let’s begin that process now. I believe Iowans recognize the power of redemption; let’s put this issue in their hands.
Disqualified persons. A person adjudged mentally incompetent to vote or a person convicted of any
infamous crimefelony who has not discharged his or her sentence shall not be entitled to the privilege of an elector.
Democratic State Representative Mary Wolfe had introduced a different approach to reach the same goal. Her proposal was never assigned to a subcommittee, and Wolfe endorsed the governor’s preferred language.
The House Judiciary Committee unanimously approved the constitutional amendment in early March. A few weeks later, the full chamber approved changing the felon disenfranchisement language by 95 votes to 2. Republicans Dean Fisher and Jon Jacobsen were the only opponents.
Within days, an Iowa Senate subcommittee advanced the bill. But it went no further.
A person shall not be considered to have discharged a sentence for purposes of Article II, section 5, of the Constitution of the State of Iowa unless the person has paid all restitution, court costs, fines, surcharges, or penalties the person owes as a result of the person’s conviction and has been removed from the sex offender registry established in chapter 692A.
Zaun’s bill didn’t go anywhere, but his concerns carried the day. He declined to bring the constitutional amendment up for a full committee vote in time for the legislature’s second “funnel” deadline on April 5. Stephen Gruber-Miller and Barbara Rodriguez reported for the Des Moines Register,
Zaun, R-Urbandale, said he had told Reynolds on Thursday [April 4] that the Senate effort would be “an uphill climb” hampered by the lack of a second bill to clarify what it would mean for felons to have completed their sentences.
“This language, I believe, was not clear enough, and there was not any parameters in regards to what those restoration of those voting rights were,” he said.
Zaun said he expects to take up the issue again next year. He said he knows it was one of Reynolds’ top legislative priorities for the current session, but that it lacks support from Republicans on the Judiciary Committee.
“I’ve been down here a long time. There’s been many governors that didn’t get everything they wanted,” he said. “This is a process.”
Reynolds sounds willing to cut a deal during the 2020 session. After the legislature adjourned, the governor told KCCI-TV and WHO-TV she was disappointed the measure didn’t pass the Senate. She noted that some House members had said during the floor debate that there should be some restrictions–for instance, maybe people who had committed the most serious crimes would not qualify. She’d be willing to work with House and Senate Republicans before next year to find consensus language on “carve-outs” for people who should never get their right to vote back.
I hope the governor doesn’t agree to requirements that would be tantamount to a poll tax (such as denying voting rights to anyone with unpaid fees). She could increase her leverage by making clear that she will act unilaterally to create an automatic restoration process if the legislature does not act.
THROUGH ONE HOUSE OR SENATE COMMITTEE
Committees approved four other state constitutional amendments this year. Leaders didn’t bring any of these joint resolutions to a vote in the full chamber, but all will be eligible for House or Senate floor debate during the 2020 legislative session.
Allowing the governor to name a new lieutenant governor
The House and Senate both approved a constitutional amendment in 2018 with language on the gubernatorial line of succession. The concept was to clarify that if a governor leaves office before the end of the term, the lieutenant governor who assumes the governor’s powers may appoint a new lieutenant governor.
As with the pro-gun amendment, failure to publish the measure in newspapers around the state before last year’s election forced lawmakers to start the process from scratch.
No right to an abortion
In June 2018, the Iowa Supreme Court struck down a law mandating a 72-hour waiting period for abortions, on the grounds that it violated women’s due process rights and equal protection guaranteed under the state constitution.
Sec.26. No right to abortion or required funding of abortion. The Constitution of the State of Iowa does not secure or protect a right to abortion or require the funding of abortion.
This resolution came out of the Senate State Government Committee on a party-line 10 to 5 vote in early March. For reasons that remain unclear, it never came to the Senate floor.
Although the 29 Senate GOP co-sponsors represented more than enough to pass the resolution, the three Republicans who did not co-sponsor the abortion measure had huge clout: Majority Leader Jack Whitver, Senate President Charles Schneider, and Assistant Majority leader Dan Zumbach. Nothing comes to the Senate floor without the leaders’ blessing.
Perhaps political considerations were a factor. Whitver just came out of a tough re-election campaign in the northern suburbs of Des Moines, and Democrats will target Schneider’s seat in the western suburbs in 2020. Voters in those communities, especially women, are predominantly pro-choice and have been drifting toward Democrats in recent years.
Sixteen House Republicans introduced a similar amendment, House Joint Resolution 5 (Sandy Salmon, Dean Fisher, Jeff Shipley, Stan Gustafson, Terry Baxter, Anne Osmundson, Skyler Wheeler, Tom Moore, Jon Jacobsen, Cecil Dolecheck, Rob Bacon, Tedd Gassman, Phil Thompson, Tom Jeneary, Thomas Gerhold, and Steven Holt). No one on the House Republican leadership team co-sponsored that amendment, which is probably why it was referred to the House Judiciary Committee but never assigned to a subcommittee.
During a May 21 telephone interview, House Judiciary Committee chair Holt told Bleeding Heartland, “We haven’t checked to see if there’s the votes” to pass this measure in the House.
You know, obviously, as pro-life folks, we would like to see something done to somewhat negate what the [Iowa] Supreme Court had ruled, such as, basically an abortion neutrality amendment that would just make the constitution silent on the issue. But there hasn’t been a lot of discussion on it in the House this year.
I know that the Senate was working on it, and certainly I think it’s very possible it could come up next year. But there haven’t been any kind of discussions on it in the House.
Given that almost every Republican lawmaker voted for a near-total abortion ban in 2018, I’m surprised this constitutional amendment didn’t get more traction.
Super-majority requirement for tax increases
Republican Senator Jim Carlin introduced Senate Joint Resolution 16 (later renamed Senate Joint Resolution 22). It would require a two-thirds majority vote in both the Iowa House and Senate for any bill that alters individual income tax rates in a way that “results in a net increase in state tax revenue.” The Ways and Means Committee approved this resolution on a party-line vote during the second-to-last week of the legislature session.
Limiting state government spending
Zaun introduced Senate Joint Resolution 2, which would limit spending from the state’s general fund to the lesser of two numbers: 99 percent of the adjusted revenue estimate for the following fiscal year for the general fund, or 104 percent of the current fiscal year net revenue estimate for the general fund. Current law has a 99 percent general fund spending limitation, but not exactly like Zaun’s proposal. David Reynolds of the non-partisan Legislative Services Agency explained the differences in this fiscal note.
A Senate Appropriations subcommittee recommended passing this resolution. The full Appropriations Committee later approved it, renamed Senate Joint Resolution 20. All Republicans and two Democrats (Liz Mathis and Amanda Ragan) voted that resolution out of committee. Senate leaders never brought it up for a vote on the floor.
A different proposal to enshrine the 99 percent spending limit in Iowa’s constitution cleared the Iowa Senate with bipartisan support in 2017. Its champion was then Senate Majority Leader Bill Dix, who resigned in the middle of last year’s legislative session. For whatever reason, the current Senate leaders don’t share his passion for the issue.
THROUGH A SUBCOMMITTEE
Crime victims’ rights
Republican State Representatives Ashley Hinson and Megan Jones introduced House Joint Resolution 11, one version of the crime victims’ rights amendment known as “Marsy’s Law.” Although a House Judiciary subcommittee recommended passage with some changes, the full House committee never brought up the resolution.
A similar constitutional amendment made it through a House committee during the 2018 session but did not come up for a floor vote.
Democratic State Representative Marti Anderson introduced a different version of a crime victims’ rights amendment this year. As is typical for proposals from the minority party, Anderson’s legislation was never assigned to a subcommittee.
In the upper chamber, Republican Senator Zach Whiting introduced Senate Joint Resolution 8, a slightly different victims’ rights amendment. A Senate Judiciary subcommittee recommended amendment and passage, but it never came before the full Judiciary Committee.
DIDN’T MAKE IT THROUGH SUBCOMMITTEE
Home rule for school districts
Zaun is a prolific bill-filer. His Senate Joint Resolution 1 stated in part, “School districts are granted home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs and government, except that they shall not have power to levy any tax unless expressly authorized by the general assembly.” A subcommittee hearing was scheduled but there is no record of the bill passing that first stage.
Term limits for lawmakers
Republican Senator Dan Dawson introduced Senate Joint Resolution 3, limiting state legislators to sixteen years of service in the legislature (combined tenure in House and Senate). It was assigned to a State Government subcommittee but moved no further.
Whiting introduced Senate Joint Resolution 4, limiting Iowa House members to six two-year terms and state senators to three four-year terms. It also was assigned to a subcommittee but did not advance.
Republican Senator Jake Chapman introduced Senate Joint Resolution 7, would limit House members to four two-year terms, senators to two four-year terms, and most statewide elected offices (governor, lieutenant governor, secretary of state, state auditor, attorney general) to three four-year terms, For some reason Chapman didn’t deem it necessary to limit the tenure of the secretary of agriculture. Assigned to a subcommittee but never advanced.
Whiting also introduced Senate Joint Resolution 11, calling for an Article V convention to amend the U.S. Constitution to establish term limits for members of the U.S. House and Senate.
Republican Senator Jason Schultz introduced Senate Joint Resolution 15, calling for an Article V convention to “impose fiscal restraints on the federal government, limit the power and jurisdiction of the federal government, and limit the terms of office for its officials and for members of Congress.”
Term limits are never popular with incumbents. The proposals from Whiting and Schultz may have failed for an additional reason: the gun lobby opposes all Article V proposals, for fear a convention would produce unplanned changes to the Second Amendment.
GOP Representative Hinson introduced House Joint Resolution 9, which would make references to the governor in our state’s founding document gender-neutral. It never was assigned to a subcommittee.
Democratic Senator Pam Jochum introduced Senate Joint Resolution 5, which would replace all male references in the Iowa Constitution with gender-neutral terms. This proposal was assigned to subcommittee but never got a hearing.
Campaign finance reform
Democratic Senator Kevin Kinney proposed Senate Joint Resolution 6, asking Congress to convene a convention under Article V of the U.S. Constitution “for the exclusive purpose” of proposing an amendment to respond to the U.S. Supreme Court’s Citizens United decision on campaign finance. It was assigned to three different subcommittees but never advanced.
Democratic State Representative Dave Jacoby introduced the same proposal, but his House Joint Resolution 10 never was assigned to a subcommittee.
Hunting and fishing
Democratic State Senator Rich Taylor introduced Senate Joint Resolution 14, adding new language to establish a right “to hunt, fish, and harvest wildlife, including by the use of traditional methods, subject to reasonable laws enacted by the general assembly and reasonable rules adopted by the natural resource commission to promote wildlife conservation and management, to maintain natural resources held in trust by the state for public use, and to preserve the future of hunting, fishing, and harvesting wildlife.” It was assigned to a Senate Natural Resources and Environment subcommittee, which never met to consider it.
Privacy of electronic data
The Iowa House unanimously approved a constitutional amendment in 2017 that would add language protecting “electronic communications and data” against “unreasonable searches and seizures.” The measure died in the Senate two years ago and never got off the starting block this year. No one picked up the ball after this amendment’s sponsor, former Republican State Representative Ken Rizer, retired in 2018.