Iowa Senate debate on a proposal to relax child labor regulations stalled late in the evening of April 17, after the Republican floor manager Adrian Dickey and Majority Leader Jack Whitver refused to answer a Democratic senator’s questions about an amendment published earlier in the day.
After hours of delay, the Senate resumed its work and approved the child labor bill (Senate File 542) shortly before 5:00 am on April 18, with Republicans Charlie McClintock and Jeff Taylor joining all Democrats in opposition.
The snag in last night’s proceedings is not limited to one controversial issue.
According to Senate Minority Leader Zach Wahls, Whitver told him Senate Republicans would no longer answer questions during floor debate, in light of a recent Iowa Supreme Court decision. That ruling (known as LS Power) has also made Iowa House Republicans more cautious about answering questions in public, a debate on a firearms bill revealed last week.
The majority party’s new approach could leave Iowa lawmakers less informed as they vote on complex legislation. Floor debate may be the only time Democrats can clarify their understanding of certain provisions, since managers’ amendments containing big changes sometime appear just hours before a vote on final passage. Over the next few weeks, Senate Republicans are expected to unveil their spending plans for fiscal year 2024 right before lengthy budget bills are bought to the chamber floor.
“IS THIS DEMOCRACY?”
Senate File 542 is among the most contentious proposals to emerge during this year’s legislative session. The bill would increase the hours Iowans under age 18 are allowed to work, and could place more teenagers in dangerous workplace settings such as roofing or freezers, without adequate compensation if they are injured on the job. Some of its provisions violate federal law.
Debate ground to a halt when the senators were discussing language designed to permit 16- and 17-year-olds to serve alcoholic drinks in restaurants, but not in bars or taverns.
One part of Dickey’s amendment stipulated, “However a person sixteen or seventeen years of age shall not be permitted to sell or serve alcoholic beverages in any premises where food is not served or is only incidental to the consumption of alcoholic beverages on the premises or where nude or topless dancing is performed.”
Democratic State Senator Bill Dotzler argued that while Dickey’s proposal addressed one concern, the language has a “serious flaw,” because it’s not clear what “incidental to the consumption of alcoholic beverages” is supposed to mean.
When Dotzler asked Dickey to yield to questions about the bill—a standard practice in the legislature—the Republican said no. Democrats interrupted the proceedings to caucus. When the Senate came back, Dickey again refused to answer questions. And so did Whitver.
“I’m in shock,” Dotzler said, that the minority party can’t ask questions about a bill that will affect the livelihood of many businesses. “I don’t know what’s going on,” he said, raising his voice. “I mean, is this democracy?”
He alluded to Iowa Senate Appropriations Committee Republicans’ unprecedented action earlier this month to advance budget bills with no dollar amounts. (The blank spaces will be filled in shortly before the full Senate takes up the spending bills.) The maneuver left members of the public unable to weigh in on Senate GOP spending proposals.
“And now we’re cutting the public out because I as a senator cannot ask a single question of any majority party member about a bill that affects people’s lives!” Dotzler shouted. He had other questions about the bill, such as how “food” is defined in the context of establishments where 16- and 17-year-olds could serve drinks.
Dotzler has served in the legislature for 27 years. The person running the bill lets members of the other party ask questions. “It’s always operated this way.” His anger rising again, Dotzler wondered, “What’s going on? Is this the end of democracy? It’s all about totalitarianism. ‘We’re in control of everything, so we can do whatever the heck we want.’ And the public don’t need to know, and the restaurant association don’t need to know, and taverns and bar, pub owners don’t need to know about their liability.”
Since it was too late to call an attorney for clarification about the bill, and Republicans wouldn’t answer his questions, Dotzler asked to defer on Senate File 542. The Senate stood at ease for several hours after midnight, while Democrats caucused.
Meeting with journalists at the capitol a little before 1:00 am on April 18, Wahls said no one could remember a floor manager refusing to answer questions about a bill during Iowa Senate debate. He said Dotzler’s question was “extraordinarily relevant” and could affect thousands of Iowa teenagers.
Following Senate passage of the child labor bill, Wahls gave a point of personal privilege to call attention to the GOP’s “completely unprecedented” action. “As we approach the dawn of a new day,” he began, “it has been a dark night in the Iowa Senate.”
“The refusal by Senator Dickey to answer a basic question at the heart of a last-minute amendment was a flagrant violation of how this chamber has conducted open debate since the beginning of the Iowa Senate,” Wahls said.
According to Wahls, Republicans have told Senate Democrats the change was a response to the Iowa Supreme Court’s LS Power decision. (April 17 was the first day of Iowa Senate floor debate since the high court published that ruling on March 24.)
Wahls wrapped up his point by saying,
Senate Democrats condemn in the strongest possible terms the Senate majority’s political decision not to answer basic questions about high-profile legislation. If you’re worried about the Iowa Supreme Court’s understanding of what is said on the Senate floor, the answer is not to stop answering questions. The answer is to tell the truth, and admit when you don’t know the answer.
It’s worth taking a closer look at the case Whitver cited.
“CRONY CAPITALISM” BILL PASSED THROUGH “LOGROLLING”
Justice Thomas Waterman wrote for a unanimous court in LS Power Midcontinent LLC and Southwest Transmission LLC v. State of Iowa. Chief Justice Susan Christensen and Justices Christopher McDonald and Edward Mansfield joined the decision; the other three justices recused themselves from hearing the case.
The statute at issue was a provision added to a 50-page appropriations bill (House File 2643) at 1:33 am on the final day of the 2020 legislative session. Under the Senate amendment, Division XXXIII of that bill gave an “incumbent electric transmission owner” a right of first refusal to construct new transmission lines. Other entities would not be allowed to bid on such projects unless the incumbent declined to build.
LS Power sued, because it is qualified to build new transmission lines, but would be unable to bid on future projects in Iowa unless the “incumbent” company (MidAmerican Energy Company or ITC Midwest, LLC) opted not to exercise its right of first refusal.
The Iowa Supreme Court determined that plaintiffs were likely to succeed in their claims this provision violated Article III, Section 29 of the state constitution, which reads:
Every act shall embrace but one subject, and matters properly connected therewith; which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.
Most efforts to challenge Iowa laws under the “single subject” or “title” provisions have not been successful.
Just last summer, the Iowa Supreme Court determined that that a 24-hour waiting period for abortion (also introduced as an amendment and passed overnight on the last day of the 2020 legislative session) did not violate the single-subject rule. Justice Mansfield wrote for the majority in that case, “Our constitution does not prohibit the legislature from burning the midnight oil or passing significant legislation with relatively little public debate, as they often do at the end of a legislative session.” Moreover, “just as we would bristle at the legislature telling us how we should conduct our business internally, so should we be hesitant to pass judgment on how the legislature conducts theirs.”
What made the electric transmission lines case different?
First, House File 2643 was “a potpourri of various unrelated subjects,” the court observed, with a “remarkably general” title: “An Act relating to state and local finances by making appropriations, providing for legal and regulatory responsibilities, providing for other properly related matters, and including effective date and retroactive applicability provisions.”
That title didn’t give notice of the right of first refusal, Justice Waterman wrote. And the Senate approved the bill about four hours after the amendment appeared in the middle of the night.
Second, whereas the 24-hour waiting period for abortion had majority support in both legislative chambers, the right of first refusal language had failed to pass as a stand-alone bill. Legislators from both parties stipulated that the proposal “lacked the votes to become law” on its own. When the amendment appeared on the Iowa Senate floor in the early hours of June 14, 2020, the legislature needed to pass the budget bill to keep state government operating beyond June 30. “Attaching an unpopular matter to a bill that is sure to pass is a hallmark of logrolling,” Justice Waterman’s opinion noted.
We are not surprised the ROFR lacked enough votes to pass without logrolling. The provision is quintessentially crony capitalism. This rent-seeking, protectionist legislation is anticompetitive. Common sense tells us that competitive bidding will lower the cost of upgrading Iowa’s electric grid and that eliminating competition will enable the incumbent to command higher prices for both construction and maintenance.
Another factor influenced the court’s thinking about the electric transmission lines language: “Importantly, legislators were unsure of what they were voting on.”
“THE SPONSOR MISREPRESENTS THE LEGISLATIVE HISTORY”
The Supreme Court’s opinion in LS Power quoted at length from Senate floor debate to highlight “misrepresentations” by the floor manager, State Senator Michael Breitbach. I pulled the videos of the key exchanges.
Around 2:30 am, Democratic State Senator Nate Boulton asked Breitbach about the purpose of the transmission lines section.
The Republican characterized the idea like this: “So if I own the line going to Point X and they’re bidding out to Y, it’s open for bids. If I happen to be the low bid, I get it. If somebody else happens to be the low bid and I have a first right of refusal, then I can say I will do it for that price and I’ll extend it out.”
Not so, the Iowa Supreme Court noted. “In fact, the ROFR provides no competitive bidding or price-matching mechanism; to the contrary, the incumbent gets the project, period.”
A couple of hours later, Democratic State Senator Tony Bisignano wanted to know more about the origin of this proposal. He didn’t recall anything like this bill being introduced or going through committee, and he hadn’t heard from any utility companies about the idea, even though they are usually “aggressive” about asserting their interests with lawmakers.
The Supreme Court opinion transcribed much of Breitbach’s convoluted explanation to show how the sponsor “gave inaccurate responses and expressed ignorance about who backed the ROFR.”
The Supreme Court pointed out, “The sponsor misrepresents the legislative history.” For instance, Breitbach claimed the bill “passed out of the House,” and later told Bisignano it made it through the committee process. In reality, it had failed to advance from a subcommittee. (Breitbach did not seek re-election in 2020 and did not respond to Bleeding Heartland’s phone or email messages after the Supreme Court published its opinion.)
As Kathie Obradovich wrote in a recent Iowa Capital Dispatch column, the LS Power ruling “left enormous loopholes for logrolling.”
Essentially, lawmakers can continue to skirt the Iowa Constitution and play peek-a-boo with the public as long as the majority party would vote for the standalone bill and remembers to amend the bill title to adequately describe the measure. […]
The court continues to be focused on whether lawmakers support these bills rather than making sure Iowans have an opportunity to know what is being debated and to voice their opinion to lawmakers.
That’s a disappointing message as lawmakers enter the final weeks of the legislative session, when there’s extra incentive to circumvent legislative procedures.
It’s also a very low bar for legislators to clear: describe the content of last-minute amendments accurately, amend the bill title if necessary, and don’t attach unpopular provisions to must-pass bills.
Nevertheless, Republican lawmakers appear to view the LS Power decision as a threat to their authority.
AN “UNORTHODOX AND ALARMING STANCE”
The Iowa House Republican weekly newsletter for March 30 led with a commentary about “the Supreme Court’s newfound interest in regulating how legislation and budgets are determined.” House Republicans implied that the court had changed the rules: “The Court found that while they had given wide latitude to the Legislature in previous rulings on how titles were written, that no longer is the case.”
[A] single subject can be extremely broad not to mention include many similarly related items under a single subject. This is how the Iowa Legislature can pass a limited number of organized budget bills instead of hundreds of individual appropriations. And the Iowa Supreme Court has generally upheld the legality of the bill drafting, with overturning legislation based on the single subject rule just three times before last Friday.
In this case though, the Court has decided that there is no way the title used for the bill can encompass a single subject. As a result, they will now enforce a requirement – that they say they have repeatedly held – prohibiting the combining of substantive and corrective provisions within the same bill. But they did not object in the previous 20 plus years when corrections to enacted bills were included in previous Standing Appropriations bills. Nor have they objected to the number of times that annual bill reflected an Encyclopedia Brittanica approach to dealing with a whole variety of issues.
House Republicans seemed offended by the focus on Breitbach’s misrepresentations. “Most troubling is the apparent decision by the Court that they are the proper body to judge the competency of legislators, as they determined the sponsor of the bill and floor manager of the bill did not know any related bill history of Right of First Refusal proposals. The questioning of members’ intelligence and subject matter knowledge without knowing the full context of a bill’s development or a member’s involvement in that development is an unorthodox and alarming stance.”
I didn’t read Justice Waterman’s opinion as questioning the senator’s intelligence. I have no idea whether Breitbach didn’t know what he was talking about or intentionally misled colleagues. The bottom line is he provided inaccurate information about the substance and legislative history of a complicated policy change, added to a must-pass bill in the middle of the night.
Nevertheless, from the House Republican perspective, “the Supreme Court has inserted itself into the legislative budget process.”
Speaking to Radio Iowa in early April, Whitver indicated that as the LS Power case moves forward in Polk County District Court, Republican lawmakers will file a brief outlining their stance on legislative intent. The Senate majority leader implied that courts should not look at what was said during floor debate.
Whitver says assigning a single reason for every yes vote on a bill is questionable. “I believe legislative intent is whatever is on the paper and to ask why a legislator votes for a bill — there could be 20 different reasons or 30 different reasons,” Whitver says, “and so to say: ‘This is the legislature’s intent’ is problematic. Whatever’s on the paper is the intent of the bill.”
Obviously, lawmakers may have many different reasons for supporting a bill. But if they don’t have a clear grasp of what the bill does, they can’t cast an informed vote.
While many bills are self-explanatory, Division XXXIII of House File 2643 would be hard for most people to understand. You can read it yourself, starting on page 48. Iowa lawmakers often rely on floor managers to describe the terms of a last-minute amendment in plain language. The process breaks down if the bill sponsor misleads, whether on purpose or by accident—especially when there was no subcommittee hearing where senators could hear the views and concerns of stakeholders.
As Wahls said on the Senate floor, if you’re worried about how the Iowa Supreme Court might interpret your public remarks, just “tell the truth” about your bill, “and admit when you don’t know the answer.”
House Republicans have not adopted a blanket policy against yielding to questions, but they are watching their words more carefully, as shown during one of last week’s debates.
“I WILL NOT ANSWER HYPOTHETICALS AT THIS TIME”
State Representative Steven Holt presented a lengthy amendment to House File 654 when the Iowa House considered the firearms omnibus bill on April 12. One purpose of the bill was to allow Iowans to keep loaded firearms in locked vehicles near schools or on college campuses.
House Democrats had some questions about new language in the amendment. In this clip, State Representative Brian Meyer asked about a section allowing people who can lawfully possess and carry firearms to keep “dangerous weapons” in a locked vehicle at a “publicly accessible parking lot.”
Holt said he had tried to describe the amendment’s provisions in his opening remarks, adding,
And I really enjoy questions from you. But I will tell you that due to a recent Supreme Court ruling that took the comments of a floor manager and additionally drew unprecedented conclusions as to whether legislators were aware of what they were voting on in arriving at a verdict, I will not answer hypotheticals at this time, while we are evaluating a response to that ruling.
Meyer and Holt also sparred over a possible contradiction in the bill. It refers to an Iowa Code section defining “dangerous weapons,” which may “include but are not limited to any offensive weapon […].” A different code section defines “offensive weapons” as including machine guns, bombs, and grenades.
Holt refused to answer some of Meyer’s questions. But he denied his amendment would allow Iowans to keep weapons like bombs or grenades in their vehicles, pointing to other passages that refer to “otherwise lawful” carrying, transportation, or possession of a dangerous weapon.
Meyer then asked fellow House Democrat Rick Olson about the confusion. As attorneys who do criminal defense work, both Meyer and Olson are familiar with the code sections regulating firearms.
Olson said he could see both points of view, and argued that Holt should answer Meyer’s questions. Olson also noted that federal law does not refer to “offensive weapons”; it refers to “destructive devices.” Since the definitions aren’t in sync, Olson said it would be “very important” for Holt to clarify what his amendment means.
Meyer urged House members to pull the bill from the floor and change the definitions. “I know that this body doesn’t want to answer questions now, because you’re afraid of what the Supreme Court is going to listen to. I’m trying to figure it out.”
During the same debate, Olson asked Holt about different provisions of the gun bill. He acknowledged the Republican’s reluctance to answer questions in light of the LS Power decision.
Even so, Olson asked the floor manager to explain what “not visible” means, as used in a provision that allows Iowans to keep a dangerous weapon that is “not visible” in a locked, parked vehicle, in many settings.
Holt characterized LS Power as a “very concerning decision for a lot of reasons.” To answer Olson’s question, Holt said there was an “obvious definition: not visible is not visible.”
Olson tried to ask another way. Could an 18-year-old keep an AR-15 rifle in a locked vehicle in a community college parking lot “if he had it in a pillowcase?” Holt said “not visible is not visible,” then denied his bill pertained to AR-15s. He said the bill was about pistols and revolvers.
Olson countered that the bill refers to “dangerous weapons,” which under Iowa Code Chapter 702.7 does cover rifles (including AR-15s) that are legal for an 18-year-old to possess. Holt kept repeating that he had already answered the Democrat’s question, and dangerous weapon is defined in Iowa Code.
Then Olson wanted to know whether the bill, which refers to “dangerous weapon” in the singular, would allow a college student to keep multiple firearms locked in a vehicle on campus, as long as the weapons are “not visible.” Holt told his Democratic counterpart to read the bill himself and draw his own conclusion. “I think it’s pretty clear.”
The LS Power ruling may have been intended as a warning to legislators not to falsely represent bills or use the appropriations process to ram through policies that could never pass on their own.
If the Iowa Senate proceedings on the child labor bill and the House debate on the firearms omnibus are any guide, it’s about to become very difficult for Democrats to clarify ambiguous language in any Republican-backed legislation. Transparency in the state legislature (already at historic lows) may reach a new bottom.
UPDATE: Iowa Senate Republican communications staff did not respond to Bleeding Heartland’s inquiry about the new approach to floor debate. But Whitver provided a statement to the Des Moines Register.
“In LS Power Mid Continent and Southwest Transmission v. State of Iowa, the Iowa Supreme Court indicated it wanted to use floor debate to determine the ambiguous definition of legislative intent,” Whitver said. “I believe legislative intent is the content of the law passed by a majority of the Iowa Legislature.”
“In light of that decision, Senate Republicans do not expect to engage in spontaneous and speculative discussions of legislative intent during floor debate until that question is resolved,” Whitver added.
That misreads the Iowa Supreme Court opinion. The court’s conservative justices have shown great deference to the legislature. For example, a majority opinion by Justice Waterman upheld the 2017 collective bargaining law, citing an alleged rationale that was never articulated during Iowa House or Senate debate, but would be “reasonable.”
The key point of the LS Power decision wasn’t legislative intent. It was Breitbach’s failure to accurately describe what the new provision would do or how it had moved through the legislature before.