Cato is an attorney who spent most of his career fighting for civil liberties and other public policy matters in Iowa. He is a lifelong Iowan. His legal interests include constitutional law (separation of powers), federalism, legislative procedures and public policy, and the laws of war. Editor’s note: Bleeding Heartland allows guest authors to publish under pseudonyms at Laura Belin’s discretion.
The Iowa General Assembly changed some practices in light of the Iowa Supreme Court’s ruling in LS Power Midcontinent v. Iowa, which struck down the Right of First Refusal (ROFR) portion of the 2020 Budget Omnibus Bill (House File 2643) as violating Article III, Section 29 of the Iowa Constitution. Justice Thomas Waterman wrote the decision, joined by Chief Justice Susan Christensen and Justices Edward Mansfield and Christopher McDonald. Justices Dana Oxley, Matthew McDermott, and David May recused from the case.
In the weeks following the court ruling, Republicans in both the state House and Senate refused to answer questions during floor debate regarding ambiguities in legislation and other questions relating to how certain language will play out in the real world lives of Iowans. Iowa media covered those developments in April:
- Todd Dorman, Cedar Rapids Gazette, Iowa Senate GOP has no answers
- Zach Sommers, We Are Iowa, Iowa Republicans refuse to answer questions during debate, citing recent Iowa Supreme Court Case
- Stephen Gruber-Miller, Des Moines Register, Iowa Senate Republicans’ new strategy is to stop answering questions during bill debate
- Laura Belin, Bleeding Heartland, Republicans shatter another Iowa Senate norm
- Erin Murphy, Cedar Rapids Gazette, Iowa Republicans self-censor debate, citing Supreme Court ruling
Senate and House Republicans seem to have stopped answering questions because the Iowa Supreme Court’s LS Power ruling extensively quoted comments Senator Michael Breitbach made while floor managing HF 2643. They apparently believe the Court used these floor comments as justification for striking down the ROFR provision at issue in that case.
Attorneys for the state and for intervenors filed applications on April 7, asking the Court to reconsider its conclusions and holdings in the ruling. LS Power filed its response on April 19. The Supreme Court denied the request for a rehearing on April 26 without much explanation. An amended opinion released on May 30 corrected some (but not all) factual inaccuracies in the initial ruling.
The General Assembly adjourned its legislative session on May 4 without any action in response to the court denying the requests for a rehearing. Only time will tell how this constitutional impasse between the legislative and judicial branches gets resolved. Paths available to both branches could restore the balance of power without escalating the dispute.
Regardless of how long it takes or how the dispute gets resolved, Iowans must never forget that your constitution exists for the sole purpose of protecting and guaranteeing your individual rights and liberties as free and independent People. Iowa Const. Art. 1, Sec. 2 (“All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require it.”).
This article hopes to explain why the Iowa Supreme Court and Republicans in the Iowa House and Senate are both guilty of violating the Iowa Constitution, while also seeking to provide a framework to resolve the impasse between the legislative and judicial branches. Similarly, this article hopes to persuade a future litigant to nudge the court in the right direction in a future case, and to persuade the people to nudge the General Assembly in the right direction consistent with this constitutional framework.
To that end, here is the analysis of Article III, Section 29 of the Iowa Constitution from the perspective of the Iowa People.
LEGAL CITATIONS 101
For the non-attorneys in the audience, feel free to ignore the legal citations (PPH v. Reynolds at 927; or Carlton v. Grimes 237 Iowa 912, 949 (Iowa 1946); State v. Talerico, 227 Iowa 1315, 1322, 290 N.W. 660, 663 (Iowa 1940)); or anything similar. It is not necessary to know how to read legal citations in order to understand this article.
However, those interested in following the citations to ground need only go to the case cited and the page number indicated to see the authority (legal precedent) for the sentence preceding the citation. I hyperlinked every case cited, so you can read the underlying authority for some of the statements made in this article. LS Power hasn’t been published in a reporter yet, so the page numbers for it are the page numbers on the pdf of the ruling itself.
QUICK SUMMARY AND DISPOSITION OF THE TWO CASES
In Planned Parenthood of the Heartland v. Reynolds IV, No. 21-0856 (June 22, 2022), the Iowa Supreme Court held that the General Assembly did not violate the single-subject requirement when it passed House File 594 in 2020. That law amended Iowa Code 146A.1(1) to require a 24-hour waiting period before a doctor can perform an abortion (replacing the 72-hour waiting period requirement, which was found to be unconstitutional in 2018).
The amendments which added the 24-hour waiting period language to HF 594, H-8312 (as amended by H-8314) and S-5162 were adopted by a 54-42 margin in the House and adopted by a voice vote in the Senate (HF 594 passed the Senate by a margin of 31-16 after it was amended by S-5162. See bill history for HF 594 from the 88th General Assembly.
These amendments were cumulative (additive) to the original language in HF 594. hey were not strike-after amendments which included both the original life-sustaining procedures language plus the additional 24-hour waiting period language within a single amendment. There was no challenge to the HF 594 under the title requirement.
In LS Power Midcontinent v. Iowa, No. 21-0696 (March 24, 2023), the Iowa Supreme Court held that the General Assembly likely violated both the single-subject and title requirements when it passed HF 2643 in 2020. That bill added the ROFR language as new section 478.16 to the Iowa Code.
In contrast to the 24-hour waiting period amendments in HF 594, the amendments which added the ROFR language to HF 2643, S-5163 and H-8317, were strike-after amendments which contained the vast majority of the original language of HF 2643 plus the ROFR language combined into a single amendment. These strike-after amendments passed the respective chambers by a vote of 53-42 in the House (roll call vote on motion to concur in Senate Amendment H-8317 and Roll Call vote on Final Passage in the House, House Journal 772-775); and by a vote of 31-16 in the Senate (roll call vote on final passage; *The Senate concurred with the House Amendment to the Senate Amendment, S-5162 via a voice vote*; Senate Journal 841-842).
The Supreme Court remanded the case back to the Polk County District Court to consider the Constitutional challenges on the merits, consistent with the Supreme Court’s ruling on LS Powers application for a temporary injunction. The Court temporarily enjoined only the ROFR provision (section 128) within HF 2643. LS Power at 38-39 (This stay applies only to Division XXXIII, section 128 of H.F. 2643 and does not reach any other provisions enacted in H.F. 2643).
COURT’S DETERMINATION OF SINGLE-SUBJECT, TITLE VIOLATIONS WERE “ULTIMATELY” BASED ON THE TEXT
The Court’s rulings in both LS Power (striking down the ROFR) and PPH v. Reynolds IV (upholding 24-hour waiting period) ultimately determined whether single-subject and/or title requirement violations existed by examining the text within the four corners of the Acts. (emphasis added).
The Court was much more explicit in PPH v. Reynolds IV, when it held that “ultimately, we should decide whether a violation of article III, section 29 occurred based on the text of HF 594, not the process of its enactment.” PPH v. Reynolds IV, 975 N.W. 2d 710, 728 (Iowa 2022).
But its ruling in LS Power is completely consistent with PPH v. Reynolds insofar as it made the ultimate decision on whether HF 2643 violated Article III, Section 29 based on the text within the Act and not the process of enactment or legislative history.
Below are the portions from both rulings where the Court conducts its textual analysis for violations of Article. III, Section 29. The portions I have highlighted in bold show that “ultimately” (in the end or fundamentally), the Court made its determinations on the text of the Act and not legislative history or circumstances of enactment.
The Court’s textual analysis in PPH v. Reynolds IV (975 N.W. 2d at 726):
Taylor is the high-water mark for challenges to legislation under the single subject rule. Even so, it is distinguishable. As in Western International and Giles, we were dealing in Taylor with a lengthy piece of legislation that contained a stray, out-of-place item: a large juvenile justice bill dwarfed the challenged adult criminal law that went unmentioned in the title. See Taylor, 557 N.W.2d at 526–27. And the State’s suggested point of commonality between the criminal offense and juvenile justice could conceivably have applied to every criminal law. Id. at 526. Here, in contrast, the legislation made two conceptually related substantive changes to laws governing medical decision-making that were both mentioned in the bill’s title. Neither of the provisions at issue is an alien wayfarer in some larger bill.
To summarize, both sections of HF 594 pertained to the identified subject of “medical procedures,” specifically government regulation of medical procedures in the interest of preserving human life. That differs from the situation in Western International, Giles, and Taylor and does not violate the single-subject rule.
The Court’s textual analysis in LS Power v. Iowa (No. 21-0696 at 29-32):
The title of H.F. 2643 is “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.” 2020 Iowa Acts ch. 1121. At the end of the act was a new law that insulated in-state electric transmission entities from out-of-state competition through the ROFR. Id. § 128. No part of the title gives notice of that provision.
In our view, this title is so amorphous that it is difficult to discern the shape and contours of the subject of the bill to which the ROFR might be “utterly incongruous.” See Iowa Dist. Ct., 410 N.W.2d at 686. And it is difficult to identify the “general subject” to determine whether the title adequately directs attention to the ROFR provision. See Iowa Sav. & Loan Ass’n, 82 N.W. at 968–69. The title probably fails to “clearly and unmistakably communicate ” the subject matter of H.F. 2643, and it likely fails to provide fair notice of the ROFR. See Giles, 511 N.W.2d at 625).
“We begin our single-subject analysis by looking at the enactment itself. See Planned Parenthood of the Heartland, Inc., 975 N.W.2d at 721. We are skeptical that any single subject could encompass the breathtaking sweep of matters included in H.F. 2643. The title itself gives us pause on single-subject grounds: “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”.
LSP argues the subjects are so unrelated the only way to fit them within a single, common subject is to assert they are all “laws.” It observes the bill contained a medley of appropriations provisions, e.g., 2020 Iowa Acts ch. 1121, § 4, corrective provisions, e.g., id. § 64 (codified at Iowa Code § 260C.48 (2021)), and grants of substantive rights, such as the ROFR, id. § 128 (codified at Iowa Code § 478.16 (2021)). We have repeatedly held that combining substantive provisions with corrective provisions in one bill is fatal under article III, section 29. See Giles, 511 N.W.2d at 625 (holding a substantive change incorporated into a Code correction bill violated single-subject requirement); W. Int’l Ins., 396 N.W.2d at 364–65 (same). We have that combination here—with appropriations added to the mix.
As you can see, the Court reached its conclusions on whether HF 594 or HF 2643 violated Article III, Section 29 by considering only the text within the four corners of both enactments. PPH v. Reynolds IV at 726; LS Power at 32. The Court outlined those conclusions prior to its analysis of the legislative history and circumstances of enactment for indications of logrolling. See PPH v. Reynolds IV at 727; See also LS Power at 32-33.
By explicitly stating they made the determination on the text of the statute, and actually doing so in both LS Power and PPH v. Reynolds IV, the Court clearly addressed the circumstances of enactment only to bolster (strengthen or prop-up) its conclusion previously made using the four corners of the Act.
Again, the Court was much more explicit in PPH v. Reynolds IV on this point when it held, “we also believe that the circumstances of HF 594’s passage—although not directly relevant to whether the legislation violated the single-subject rule—support the State’s position that no constitutional violation occurred.” PPH v. Reynolds IV at 727. (Emphasis added).
But LS Power follows the same analysis and is consistent with PPH v. Reynolds IV in so far as they both analyzed the legislative history and circumstance of enactment in order to bolster its prior determination of violations or not. LS Power at 32.
LS POWER RULING WAS AN EXCUSE (NOT JUSTIFICATION) FOR REFUSING TO ANSWER LEGITIMATE QUESTIONS DURING FLOOR DEBATE
Even though the Court “ultimately” made its conclusions based on the text of HF 594 and HF 2643, I would agree with House and Senate Republicans that the LS Power decision’s intrusive review and critique of the circumstances of enactment and legislative history went too far. And that overreach by the Court, no matter how well-intentioned, has created a situation where the elected representatives of Iowans are now acting as if they have a constitutional justification to not answer legitimate questions regarding ambiguous provisions within legislation it is considering.
As explained in the previous section, a nuanced analysis of the Court’s rulings in PPH v. Reynolds and LS Power v. State demonstrates that the Court did base its rulings on the texts of the respective laws. That fact, combined with the circumstances surrounding the refusal of some legislators to answer certain questions, reveals that members of the House and Senate used the LS Power ruling as a pretext, not a constitutional justification.
The first time LS Power became a convenient excuse to avoid questions was during the Senate floor debate beginning at 3:05 pm on April 17 and ending at 4:56 am on April 18. Republican Senator Adrian Dickey, chair of the Workforce Committee, twice refused to yield to questions from Democratic Senator Bill Dotzler during the floor debate on Senate File 542 (on youth labor laws).
For a good summary of this event, see Laura Belin’s post from April 18, Republicans shatter another Iowa Senate norm. The first “no” from Senator Dickey came around 10:21 pm. Democrats went to caucus. At around 11:42 pm, Dickey again declined to answer questions. Then Senate Majority Leader Jack Whitver refused to yield as well.
In response to questions from Senate Democrats and the media, Whitver released the following statement:
“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.”
I genuinely do not understand how Senator Whitver arrived at his conclusion that the Court “use[d] floor debate to determine the ambiguous definition of legislative intent.” But any objective reading of the ruling in LS Power makes it clear that the Court did not have to inquire into legislative intent whatsoever, because no one was disputing the interpretation of any of the language within HF 2643, let alone the ROFR provision (section 128 of HF 2643). The Court used the words “ambiguous”, “interpretation”, or “intent” exactly zero times in the ruling.
Trying to determine legislative intent is a statutory interpretation tool, not a tool to invalidate legislation (full stop). Not to mention Iowa Code explicitly authorizes courts to look at legislative history and the circumstances of enactment if it finds that a statute is ambiguous. See Iowa Code 4.6 (If a statute is ambiguous, the court, may consider among other matters: … the circumstances under which the statute was enacted… [and] the legislative history).
The question before the Court was “whether the district court correctly ruled that qualified would-be competitors in the electric transmission market lacked standing to challenge new legislation that blocks them from bidding against existing Iowa operators on future projects.” LS Power at 3. LS Power Midcontinent was challenging whether the ROFR should be allowed to become law, not how the ROFR provision should be interpreted and applied to a factual situation.
When the reason given for refusing to answer certain questions has absolutely no relevance to the ultimate question before the Court, it becomes obvious Senate Republicans used the Court’s ruling in LS Power as an excuse (not justification) for refusing to answer legitimate questions regarding ambiguous provision in legislation.
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.
Representative Holt’s floor comments are too vague to know whether he meant legislative history when he referred to “unprecedented conclusions,” or what he meant when he said “arriving at a verdict.”
But two things are clear when analyzing the statements from Holt and Whitver. First, both believed the court was wrong to analyze the floor debate. And second, both believed the Court used the floor debate comments to reach its conclusion invalidating the ROFR. In short, they believe that the Court improperly used floor debate to invalidate a law the legislature enacted.
I agree that the Supreme Court should not have gone into floor debate. However, as discussed above, I disagree wholeheartedly that the Supreme Court used the floor debate to reach its ultimate conclusion that the ROFR violated both the title and single-subject requirements in Article III, Section 29.
Additionally, if the Senate and House Republicans genuinely cared about the Iowa Supreme Court using floor comments or the circumstances of enactment when determining the constitutionality of legislation they pass, then they would have raised that concern (or stopped answering questions) after the Court’s ruling in PPH v. Reynolds IV, which similarly went through legislative history for HF 594; considered whether legislators would have supported the 24-hour waiting period as a standalone bill; and described/summarized what occurred during floor debate as part of its analysis to determine whether HF 594 was the product of logrolling. PPH v. Reynolds IV at 727
Let’s assume (for the sake of argument) that the refusal to answer questions is constitutionally justified, due to the Supreme Court using comments from debate to invalidate the ROFR under the single-subject requirement. Not a single Senate or House Republican has sufficiently explained how their refusal to answer certain questions about ambiguous or unclear legislation actually accomplishes anything in terms of preventing the Court from continuing to use floor debate if it so chooses.
Refusing to answer certain questions about intent does nothing to prevent the Court form using the opening and closing comments of the floor manager, comments made by others during debate (such as the Court did with remarks from Democratic Senators Joe Bolkcom and Todd Taylor about HF 2643), or from considering any other circumstance of enactment the Court thinks is relevant.
If the concern is that the Court drew unprecedented conclusions as to whether the legislators were aware of what they were voting on,” as Representative Holt believes, wouldn’t the act of refusing to answer the questions themselves also lend support to the conclusion that legislators did not know what they were voting on?
The Republican response is comical if you think about it. If the goal of GOP lawmakers is to stop the Court from looking at floor debate or circumstances of enactment, then it is incumbent upon them to write the laws they pass with as much specificity and clarity as possible. See Iowa Code 4.6 (statute must be ambiguous before court can look at legislative intent). The more specific/explicit (the less ambiguous) a statute is, the less amount of discretion the General Assembly acquiesces to the Judicial Branch when it applies those statutes to cases and controversies.
So engaging in a back and forth with another legislator on how a bill’s provisions/language will apply to various scenarios and fact patterns is one of the most effective ways legislators can demonstrate that a certain bill/provision is indeed ambiguous and should be clarified. Senator Dotzler was trying to convince Senator Dickey (and the Senate generally) that the “only incidental to the consumption of alcoholic beverages on the premises” language within amendment S-3138 to SF 542 was ambiguous in that it could potentially allow 16- and 17-year-olds to serve alcohol in bars, and that the Senate should adopt his amendment S-3147 which clarifies the language to require at least 51 percent in gross sales of food. Ultimately, the House attached (and the Senate concurred in) an amendment that sufficiently clarified the earlier ambiguity by using the definition of “bar” in 142D.2. See S-3220, page 1, lines 31-33.
As this example shows, refusing to answer questions that could reveal ambiguity within legislation will most likely result in the Court doing more of what Senator Whitver professes to dislike, not less.
THE JUDICIAL BRANCH SHOULD HESITATE TO DELVE INTO HOW THE LEGISLATURE CONDUCTS ITS BUSINESS
The Court’s lack of understanding of how the Iowa General Assembly functions generally, as well as the lack of expertise in some of the more nuanced and technical aspects of the General Assembly has resulted in the Court drawing incorrect inferences and conclusions about the legislative process and the resulting enactments. (Emphasis added).
Contrary to what the Court leads you to believe, none of the different historical facts or circumstances of enactment relating to the passage of HF 594 versus HF 2643 provide any support for the Court’s conclusion that logrolling occurred or its finding that HF 2643 likely violated the single-subject and title requirements. The Court’s attempts to distinguish the historical facts and procedural differences between the passage of HF 594 and HF 2643 demonstrates why the process of enacting legislation is properly and exclusively reserved for the political branches of government (Legislative and Executive Branches).
And coincidentally, it reveals why the proper Constitutional analysis under Art. III, sec. 29 looks exclusively at the text within the four corners Act.
To demonstrate why the justices should hesitate to pass judgment on the legislature’s internal procedures, let’s discuss a few of the assertions made by the Court in its LS Power ruling involving legislative history or the circumstances of enactment.
CONSTITUTIONALLY SOUND DEFINITION OF “LEGISLATURE”
One of the most fundamental errors the Court makes throughout its LS Power ruling is failing to adequately define what a “legislature” is in relation to legislative enactments. When it comes to historical actions and non-actions taken by a “legislature” in relation to enacting legislation, the only logical and constitutionally sound definition of “legislature” is a General Assembly (a two-year period corresponding with the bi-annual elections of all 100 of House members and half (25) of the Senate members).
- Iowa Const. Art. III, sec. 1 (General Assembly. The legislative authority of this state shall be vested in a general assembly, which shall consist of a senate and house of representatives),
- Iowa Const. Art. III, sec. 3 (Representatives. The members of the house of representatives shall be chosen every second year, by the qualified electors of their respective districts, and their term of office shall commence on the first day of January next after their election, and continue two years, and until their successors are elected and qualified), and
- Iowa Const. Art. III, sec. 6 (Senators — number and classification. The number of senators shall total not more than one-half the membership of the house of representatives. Senators shall be classified so that as nearly as possible one-half of the members of the senate shall be elected every two years.
- See also Iowa Code 2.2, subsection 1 (“Each regular session of the general assembly shall be designated by the year in which it convenes and by a number with a new consecutive number assigned with the session beginning in each odd-numbered year”).
Under Iowa’s constitutional scheme, each two-year General Assembly constitutes a separate and distinct “legislature” when discussing what actions or non-actions a legislature has taken.
It is true that the 87th General Assembly “failed to pass” the ROFR. However, that failure to pass the ROFR during the 87th General Assembly cannot be attributed to (or used to negate) the actions taken or not taken on specific legislation during the 88th General Assembly because the 88th General Assembly had a different composition than the 87th General Assembly.
Constitutionally speaking, there were 100 new/different members in the Iowa House and 25 new/different members in the Iowa Senate because any Senator or Representative re-elected in 2018 ceased to be members of the 87th General Assembly and became members of 88th General Assembly on the first day of the 2019 legislative session (January 14th, 2019). Iowa Const. Art. III, Sec. 2, 3, 5, and 6.
Practically speaking, after the 2018 election, there were 23 new/different members in the Iowa House (17 incumbents retired ; nine seats flipped ; three seats flipped had retiring incumbents) and three new/different members in the Iowa Senate (seven incumbents retired; five seats flipped ; three sets flipped that had retired incumbents) that served in the 88th General Assembly that did not serve in the 87th General Assembly.
Any inference that the actions or non-actions of the 87th General Assembly are relevant in suits challenging the constitutionality of laws enacted by the 88th General Assembly is a blatant violation of sections 1, 3, and 6 of Article III (bulleted above) and ignores the expressed will of the People, as reflected in their newly elected or re-elected representatives in each legislative chamber.
This failure to adequately identify what constitutes a “legislature” and the corresponding failure to employ the proper definition of “the legislature” in its analysis, if continued by the Court, could eventually result in the disenfranchisement of Iowans by weakening their current elected representatives’ ability to pass legislation they believe to be in the best interest of their constituents.
However, because the Court’s ruling in LS Power ultimately concluded that HF 2643 likely violated the single-subject and title requirements on its face (the text within the four corners of the Act), there was thankfully no disenfranchisement of Iowa voters when the Court intruded upon areas reserved to the legislative branch in order to use the actions (or non-actions) of a previous General Assembly to help invalidate actions taken by a subsequent General Assembly.
WHAT CONSTITUTES A “FAILURE TO PASS”?
The minimum criteria for concluding the legislature failed to pass policy/language, according to the Court in LS Power, is the mere introduction of the language/policy regardless of whether any member of either House has a chance to vote in favor or against. See LS Power at 9 (“[A] standalone bill with the ROFR was introduced in the house. H.S.B. 540, 88th G.A., 2d Sess. § 1 (Iowa 2020). But that bill died in subcommittee. See H. Journal, 88th G.A., 2d Sess., at 141 (Iowa 2020) (logging last activity advancing bill”)).
Under the minimum criteria established by the Court, it would be equally true that the legislature failed to pass the 24-hour waiting period language/policy during the 2011 legislative session. See SF 39 from the 84th General Assembly (received a subcommittee assignment and died without ever having a subcommittee hearing). Does it matter that SF 39 was sponsored by eight Senate Republicans in a Democratic-controlled Senate in 2011? How many years must pass before a previous General Assembly’s “failure to pass” policy/language has no impact on whether that policy/language is popular or unpopular?
The Court’s current jurisprudence does not provide clear answers or guidance for any of these questions. Probably because its jurisprudence shouldn’t elicit these types of questions in the first place.
During the 2001 legislative session of the 79th General Assembly (2001 and 2002 sessions), HF 341, which required a 24-hour waiting period prior to an abortion, was passed by a (56-44) Republican-controlled House by a vote of 67-31 on and by a (30-20) Republican-controlled Senate by a vote of 33-16. Democratic Governor Tom Vilsack vetoed the bill. Partisan Affiliation of Legislators (1838-2022), page 3; Bill History for HF 341; Governor’s Veto Message for HF 341 – House Journal p. 1627.
The 79th General Assembly reconvened in two extraordinary sessions in 2001, but it did not take a vote to override the governor’s veto on HF 341 during either session because Republicans lacked the two-thirds majority in both chambers necessary to override the veto. See Governor’s Proclamation for 1st Extraordinary Session (For the Purpose of Redistricting) (May 21, 2001), House Journal p. 1-2; Governor’s Proclamation for Second Extraordinary Session (for purposes of addressing a budget reduction of more than 3.4 percent due to economy crashing after the events of September 11, 2001) (November 1, 2001), House Journal 1-3. See also Iowa Const. Art. III, Sec. 16 (veto override requires 2/3 vote in both chambers).
Using the Court’s vernacular in LS Power, would the 24-hour waiting period be considered to be “popular” or “unpopular” in light of the legislative branch giving its assent to it becoming law, while the executive branch expressed its explicit rejection of a 24-hour waiting period becoming law? Would the Court consider HF 341 from 2001 as “failing to pass” when it in fact did pass the General Assembly? Since the General Assembly has twice “failed to pass” a 24-hour waiting period, wouldn’t that make it just as unpopular as the ROFR language/policy, if not more unpopular? Remember, the executive specifically rejected the 24-hour period language/policy in the 79th General Assembly (2001) when Governor Vilsack vetoed HF 341, while Governor Kim Reynolds specifically approved the ROFR language in the 88th General Assembly in 2020 by signing HF 2643 without line-item vetoing the ROFR section.
These questions, and countless others like them, demonstrate why the Court should not concern itself with matters meant and reserved for the political branches of government. “As elected representatives involved with the political process, senators [and representatives] are conditioned to decide political questions. Des Moines Register v. Dwyer, 542 N.W. 2d 491, 501 (Iowa 1996).
The Court believes that when language/policy passes in the Iowa Senate, but doesn’t receive a vote on the Iowa House (because the House adopted a strike after amendment that didn’t include the ROFR language), that also constitutes a “failure to pass” certain language policy. Compare SF 2311 (reprinted), section 17 (ROFR was in SF 2311 the first time it passed the Iowa Senate) with H-8340 and H-8414 (these two amendments became the bill once adopted by the House since H-8340 was a strike-after; and neither amendment included the ROFR language).
The 87th General Assembly (the “legislature” spanning the 2017-2018 legislative sessions) failed to pass ROFR prior to the convening of the 88th General Assembly. That is an accurate statement about actions “the legislature” took during the 87th General Assembly. But despite what the Court may lead you to believe, the failure to pass ROFR in the 87th General Assembly was not the result of the ROFR language being amended out of the final version of Senate File 2311. The failure to pass ROFR during the 87th General Assembly was exclusively the result of the ROFR language not being passed by a constitutional majority in both chambers prior to the convening of the 88th General Assembly, and not a second sooner.
That is because even after Governor Reynolds signed the final version of Senate File 2311 (without ROFR) was on May 4, 2018, and even after the both chambers adjourned for the year on May 5, 2018, the 87th General Assembly always retained the ability to pass ROFR in compliance with the Constitution and present it to the Governor for her signature until the 88th General Assembly convened its first regular session on January 14, 2019.
Voting to adopt a strike-after amendment which includes some but not all of the provisions in the original/current bill, such as what occurred in the 2018 session when both the Senate and House amended the ROFR language out of SF 2311 (see S-5256 & H-8340), is not equivalent to the General Assembly expressing its desire to not enact the provisions not included in the amendment.
The Iowa Constitution does not grant the General Assembly the ability to not pass (or express its will not to pass) legislation. The Constitution only grants the General Assembly the ability to pass legislation by the assent of a majority of all the members elected in each branch of the General Assembly. See Iowa Const. Art. III, sec. 17. What the General Assembly “fails to pass” in any given year is constitutionally irrelevant.
Moreover, Senator Breitbach’s comments on the Senate floor from April 30, 2018 explained why the ROFR provision was being taken out of SF 2311. It was removed because of a Supreme Court case out of Minnesota, not the underlying merits of the policy. See official video from April 30, 2018, beginning at 1:17:39:
Senator Breitbach: “The amendment also removed the right of first refusal language from the bill. I was conflicted on this; on whether we should have a right of first refusal for existing utilities to be able to extend their utilities out when they are building out. Currently there is a lawsuit in the State of Minnesota that’s saying that is not constitutional. So that has been taken out of the bill”.
Similarly, the fact that a standalone bill containing the ROFR language/policy didn’t have a subcommittee meeting held during the 2020 session of the 88th General Assembly has no bearing or probative value in determining whether the 88th General Assembly does or does not have the requisite votes to pass that same language at any other point during that General Assembly.
Is the Supreme Court aware that only a single elected official out of the 150 elected officials in the 88th General Assembly controlled whether HSB 540 received a subcommittee hearing (the subcommittee chair, Representative Gary Carlson)? Is the Court aware that even if other House members filed bills that solely contained the ROFR language/policy, Carlson (in his role as House Commerce Committee chair) would decide whether to assign the bill to a subcommittee, and who would serve on that the subcommittee?
In all likelihood, the Iowa Supreme Court is completely ignorant of the reality that only one of the 100 Iowa House members had the ability to determine whether HSB 540 or any other bill containing the ROFR language/policy received a subcommittee hearing or would come up for a vote in committee. If the Court were aware of these facts, I doubt it would have concluded that one person out of one hundred fifty declining to take action on a standalone ROFR bill is equivalent to the General Assembly (“the legislature”) failing to pass ROFR during the 2020 session.
WHAT DOES “NOT DIRECTLY RELEVANT” MEAN?
In both PPH v. Reynolds IV and LS Power, the Court stated that it was considering evidence (circumstances of enactment) that the Court itself described as “not directly relevant” in order to bolster or weaken its previous determination on whether an Act violated the single-subject and/or title requirement when looking only at the text within the four corners of the act. Here are the relevant portions from PPH v. Reynolds IV and LS Power:
We also believe that the circumstances of HF 594’s passage—although not directly relevant to whether the legislation violated the single-subject rule—support the State’s position that no constitutional violation occurred. PPH v. Reynolds IV, 975 N.W. 2d at 727
Although not “directly relevant,” we have also considered the legislative history of the bill and “the circumstances of [its] passage.” LS Power at 32 (quoting PPH at 727).
The Court must clarify what it means when it says the circumstances of enactment are “not directly relevant” when analyzing violations of Article III, Sec 29. Especially in light of how some Senate and House Republicans responded, by refusing to answer legitimate questions regarding ambiguities and application of the bills they are considering.
The Court’s ad hoc analysis of this matter raises numerous questions. If the legislative history and circumstances of enactment are not “directly relevant,” does that make them indirectly relevant? Should they be relevant at all?
Similarly, if the circumstances of enactment and legislative history for a statute approved by the General Assembly and signed by the governor) is only “indirectly relevant,” then how can a legislation that never made it out of subcommittee (HSB 540) or legislation from the prior General Assembly (SF 2311) have any relevance?
Ideally, the Court will determine that the circumstances of enactment and legislative history are in no way relevant. Then, analysis of single-subject claims would focus solely on what is contained within the four corners of the Act.
If the Court plans to continue to examine the circumstances of enactment when deciding challenges under Article III, Section 29, then it owes it to the General Assembly—and all Iowans—to clarify how exactly legislative history and circumstances of enactment are relevant.
The Court’s own rules of evidence weigh against considering legislative history or the circumstances of enactment when considering whether an Act violates Article III, Section 29 of the Iowa Constitution. Here are the Court’s rules for relevance. If any piece of evidence fails these tests, it is inadmissible.
Rule 5.401 Test for relevant evidence. Evidence is relevant if:
a. It has any tendency to make a fact more or less probable than it would be without the evidence; and
b. The fact is of consequence in determining the action.
Rule 5.402 General admissibility of relevant evidence. Relevant evidence is admissible, unless any of the following provide otherwise: the United States Constitution or Iowa Constitution, statute, these rules, or other Iowa Supreme Court rule. Irrelevant evidence is not admissible.
Rule 5.403 Excluding relevant evidence for prejudice, confusion, waste of time, or other reasons. The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
As it relates to Article III, Section 29, the question before the Court is whether HF 2643 violated the single-subject and/or title requirement. Broken down, the two questions the Court must answer initially are:
1. Did HF 2643 encompass one general idea and be so connected with or related to each other, either logically or in popular understanding, as to be part of . . . one general subject?
2. Does HF 2643 have buried within it, a matter utterly incongruous to the general subject of the statute, as expressed in the title?
Applying the test for relevance to the various circumstances of enactment and legislative history the court considered in LS Power should ordinarily lead a court to exclude them from being admissible because they obviously aren’t relevant. Here are a few applications of the relevance rules so you can decide for yourself:
- Does the fact that HSB 540 did not receive a subcommittee in 2020 have a tendency to make it more or less probable that HF2643 encompassed one general idea or have a matter incongruous to the subject expressed in its title buried within it? (no)
- Does the fact that ROFR was removed from SF 2311 prior to it being enacted in 2018 have a tendency to make it more or less probable that HF 2643 in 2020 encompassed one general idea or have a matter so incongruous to the subject expressed in its title buried within it? (no)
- Does an affidavit from a legislator saying that the ROFR lacked the support to pass as a standalone bill in 2020 have a tendency to make it more or less probable that HF2643 encompassed one general idea or have a matter incongruous to the subject expressed in its title buried within it? (no)
- Do misleading or confusing comments made by the floor manager of HF 2643 have a tendency to make it more or less probable that HF 2643 in 2020 encompassed one general idea or have a matter so incongruous to the subject expressed in its title buried within it? (no)
Is the probative value of the circumstances of enactment outweighed by the risk of confusing the issues? Specifically, is there substantial risk that the Court will confuse the issue of whether HF 2643 the single-subject and/or title requirement with the issue of whether ROFR was popular and/or the product of logrolling?
Even if we assume that any of the circumstances of enactment have probative value, it is apparent that the Court in LS Power confused the ultimate question before it (whether HF 2643 violated the single subject and/or title requirement) with the question of whether HF 2643 was unpopular and the product of logrolling.
Consider: the Court’s determination that HF 2643 violated the single-subject requirement would not have changed even if the Court determined ROFR to be “popular” and not the product of logrolling. The single-subject requirement prevents the General Assembly from encompassing in a single Act, two or more dissimilar or discordant subjects that have no reasonable connection or relation to each other [regardless of whether they are popular or unpopular]. Long, 142 N.W.2d at 381. (Emphasis added)
Article III, section 29 does not prohibit multiple subjects only if one or more of those subjects is unpopular. It prohibits multiple subjects, even if both subjects are overwhelmingly popular or overwhelmingly unpopular. Popularity is irrelevant when determining violations of Article III, section 29. The Court could have just as easily concluded that ROFR was indeed popular (because it received a majority vote in both chambers upon final passage), but still hold HF 2643 violated the single-subject requirement because it combined substantive provisions with corrective provisions and HF 2643 combines numerous disparate subjects. LS Power at 32.
THE COURT’S CRITIQUE OF IOWA SENATE FLOOR DEBATE WAS UNFAIR
By transcribing part of the floor debate between Breitbach and Democratic Senator Tony Bisignano regarding the ROFR provision, and commenting on the exchange, the Court showed tremendous disrespect to a co-equal branch of government. I was very disappointed the Court did not show more respect to a member of a co-equal branch of government, or at a minimum, make sure its conclusion that a state senator was confused or was misleading is on solid ground before hurling such allegations. Especially when the Court was already on shaky ground by even considering remarks during floor debate as relevant to the statute’s constitutionality.
Supreme Court justices are used to being the ones who get to ask complex and difficult questions to litigants with the expectation of an almost immediate, accurate, thorough, and well-reasoned response. The Supreme Court is entirely comprised of attorneys, and the vast majority of people that argue in front of the Court or its lower courts are also attorneys. Lawyers are trained from the very beginning of their education that there are consequences for failing to know the material you are expected to know (usually their first torts class, lol).
Similarly, lawyers are trained from the very beginning of their education to be prepared to answer any question at any time when debating or reviewing the relevant material, because their professors utilize the Socratic Method. Lawyers are trained to cite their sources, cite original sources whenever possible, and to only use evidence that is reliable. Lawyers are trained to use logical reasoning to form cogent and sound arguments to persuade others their conclusions are the correct conclusions.
Only a small fraction of legislators are attorneys in any given General Assembly. It is unfair and disrespectful for the judicial branch (the branch of government that carries out its constitutional function almost exclusively with attorneys) to apply the same standards to members of the legislative branch as it would to the attorneys operating within its branch of government. It is completely appropriate for the Court to publicly reprimand lawyers who are negligent or reckless in their representation; who try to use unreliable evidence; and especially lawyers who make misrepresentations and mislead the court (intentionally or negligently).
But when the Judicial Branch publicly reprimands a member of the legislative branch like it did with Breitbach, or even worse, publicly accuses a lawmaker of giving misleading answers, that will have a chilling effect on the elected representatives of Iowans.
The vast majority of first-year legislators in both chambers are extremely nervous (some petrified) when floor managing their first piece of legislation. In fact, there is an Iowa Senate tradition that occurs every time a first-year senator runs their first bill on the floor. Senators of both parties (the ones who remember anyway) first cast a “fake no” vote on final passage. They switch it to a “real yes” vote after the floor manager sees what is going on. The panic leaves their face once they realize that their first bill isn’t actually going to fail on the Senate floor. See for example, Senator Jeff Reichman’s first bill from February 2021 (Senate Video for Senate File 387), or Senator Tim Goodwin’s first bill from March 2021 (Senate Video for Senate File 366).
Legislative sessions are very short, usually about four months per year. Legislators have a very limited amount of time to learn as much as they can about bills covering countless subjects with various levels of complexity. If first-year legislators (or even fairly seasoned ones) now have to worry about the Iowa Supreme Court publicly calling them confused, ignorant, or misleading, imagine how many legislators are just going to choose to not speak on a bill. If anything justifies refusing to answer questions on ambiguous provisions within legislation during floor debate, it would be the fear of being called ignorant or confused by a collective group of the state’s most intelligent and persuasive legal experts.
Iowans are very fortunate to have a part-time (unprofessional) legislative branch, comprised of members of all ages (25+), all walks of life, all types of life experiences, and with varying degrees of education and sophistication. The various General Assemblies have been made up of current and retired farmers, current and retired teachers, current and retired attorneys, current and retired law enforcement, small business owners of all types, pharmacists, dentists, nurses, engineers, doctors, spiritual leaders, economic development specialists, members of the national guard, union members, real estate agents, contractors, bankers, journalists, news anchors, truckers, and so on. (You get the point.)
This is a fundamental feature of the Iowa General Assembly. It ensures that the elected representatives who pass the laws Iowans have to live under are figuratively (constitutionally) representative of the People of Iowa and literally (practically) representative of the People of Iowa and all their uniqueness.
If the Court would like every elected representative (not just the experienced legislators, not just the lawyers, not just the highly educated, or not just highly articulate legislators) to participate in the legislative process, then it should never again publicly reprimand or otherwise critique a legislator for anything they say on the Senate Floor.
SPECIFIC PARTS OF FLOOR DEBATE CRITICIZED BY THE COURT
The Court address several aspects of the Breitbach/Bisignano exchange. I will go over each of them to explain why the Court should not use comments made during floor debate for any purpose, let alone to support a decision to strike down an Act (or portion of an Act). Since Breitbach didn’t get the opportunity to defend himself from how the Court portrayed his floor comments, my commentary partially serves that purpose as well.
SENATOR BISIGNANO: I’m going to Section 33, and that’s the one on the electrical transmission lines, and I’ve never heard of anything like this in any moving legislation that was drafted and in committee, and do you have a bill history on the bill that this would have addressed? . . . .
SENATOR BREITBACH: I do not have the bill number, but you’ll remember it was the omnibus utility bill. We passed it in the — in the Senate. We sent it over to the House. They took that portion of — There were 26 sections of that utility bill, and they took that part out of it, and — and we’re putting it in this bill.
Contrary to what the Court states in its ruling, Breitbach did not express any confusion in his answer to Bisignano’s question. In fact, he answered this question accurately.
The Court unfairly (and disingenuously) characterized the senator’s answer as demonstrating confusion, or giving an inaccurate/misleading response about the bill’s origins. But Breitbach was clearly referring to SF 2311, which he floor managed in 2018. The Senate originally passed SF 2311 with the ROFR provision in it. See SF 2311 (reprinted), section 17.
The House did in fact take the ROFR portion out of SF 2311 before sending it back to the Senate. And the Senate put the ROFR provision in “this bill” (referring to HF 2643).
Everything Senator Breitbach said in this excerpt was truthful, accurate, and responsive to what Bisignano asked.
If the Court can assume (improperly assume) it has the constitutional authority to refer to the non-passage of ROFR during 2018 in order to support its conclusion that the ROFR was “unpopular” in 2020, it would only seem fair for the Court to give the floor manager of HF 2643 in 2020 the discretion to refer to SF 2311 from 2018 when answering a question from a colleague who had also served in 2018. See Senate Journal page 556, Tuesday, March 6, 2018 (Bisignano voting “no” on SF 2311 final passage); Senate Journal page 999, Monday, April 30, 2018 (Bisignano voting “no” on SF 2311 final passage). Bisignano did not specify that he was only asking about legislation from the current General Assembly.
SENATOR BISIGNANO: Okay. So for — That was two years ago. And then this year did it come out of the Senate or the House?
SENATOR BREITBACH: We’ve got it in front of us right now.
SENATOR BISIGNANO: It was never a bill. It was in the original two-year-ago bill; but when it got splintered out, it was basically dead. I mean, when you take something out, it’s discarded. So it would have had to get its way back into this building by some interest. Who’s the interest?
SENATOR BREITBACH: I’m not sure, because the utility bill that was running this year, I basically told the House, I said, I’m not going to pass a bill out of here and have you sit on it. If you want to get something done, you get it passed out of the House. They worked on it over in the House, passed it out.
SENATOR BISIGNANO: It failed in the subcommittee?
SENATOR BREITBACH: What’s that? It went through the full committee process, passed out of the House, came over to the Senate. We did not move it.
SENATOR BISIGNANO: Okay. So this electric transmission line, there was a bill this year –
SENATOR BREITBACH: Yes.
SENATOR BISIGNANO: — in the Senate that had passed the –
SENATOR BREITBACH: No. It was not in the Senate this year. It started in the House.
SENATOR BISIGNANO: This year.
SENATOR BREITBACH: Yes. We could ask Representative Carlson, who floor-managed it, exactly where it — where it ended up at, but we’ve had a shortened session. We didn’t get to finish the second funnel. It never made it here.
SENATOR BISIGNANO: So it didn’t make the funnel, and no one lobbied for this. MidAmerican is not a supporter. They’re a large energy company. There’s been no mention all year, until I read this tonight and was contacted and said, Where did this come from? And we don’t know where it came from. All we know is that two years ago it was in a utility bill. It got taken out. This year you’re claiming the House, and I assume you’re right, ran it through the process. Was it vote — or did they run out of time this year? Was it voted on the floor?
SENATOR BREITBACH: They ran out of time. I’m not sure if it was voted on the floor, but it went through the committee process. I had had several conversations with Representative Carlson. I believe it made it all the way through the floor because he was talking to me about it, trying to get it through legislation this year, but with the shortened session, this — everything kind of blew up, you know.
SENATOR BISIGNANO: I’d like to wake up Representative Kaufman and ask him what the history of this was going through the House process because I think that’s relevant. I mean, this is setting statute in business in the middle of the night that was never lobbied by any utility to have a chance to support or oppose it. It’s brand-new. The first time I saw it is an hour ago, maybe an hour and a half now, but I’m just uncomfortable with policy legislation coming through a budget bill in the middle of the night that no one’s heard of, that I know of, and my utility is saying, what is this?
Breitbach certainly gave some inaccurate statements in response to Bisignano’s questions regarding legislative history. I don’t think most people would think his inaccurate statements amounted to a misrepresentation (which implies that he intentionally misrepresented the legislative history). It should have been apparent to everyone listening that Breitbach was unsure of his responses, and frequently hedging his answers to indicate that to the rest of the body.
- “I’m not sure, because the utility bill that was running this year, I basically told the House, I said, I’m not going to pass a bill out of here and have you sit on it.”
- “They ran out of time. I’m not sure if it was voted on the floor, but it went through the committee process. I had had several conversations with Representative Carlson. I believe it made it all the way through the floor because he was talking to me about it, trying to get it through legislation this year, but with the shortened session, this — everything kind of blew up, you know.”
- “We could ask Representative Carlson, who floor-managed it, exactly where it — where it ended up at, but we’ve had a shortened session. We didn’t get to finish the second funnel. It never made it here.”
Moreover, it is immaterial (not relevant) whether the ROFR provision passed a subcommittee or committee in either chamber prior to it being added to HF 2643 through a strike-after amendment on the Senate floor.
The Constitution does not require language/policy to pass out of subcommittee and committee prior to it being voted on by the full bodies in the respective chambers. See Iowa Constitution, Section 17 (only requiring a “last reading”); See also Carlton v. Grimes at 922 (‘“The words “its last reading” in section 17, supra, may imply previous reading or readings, and yet a “last reading” may be a first, second, third, or other reading. The purpose of any provisions for reading a bill is to inform the legislature concerning the nature of the proposed enactment and to prevent hasty legislation”’).
Why does the Court care if the floor manager misrepresents the legislative history, intentionally or otherwise, when that legislative history is irrelevant when determining the constitutionality of an enacted bill?
SENATOR BREITBACH: Okay. You know, there are several different ways you can — you can do extension of utilities. One of the ways that has been used is if you own the line running to Area X and now you’re going to go to Y, you’re the company that gets to do it, period. Nobody else gets to bid on it. You have — You have priority. Another way to do it is to just put it out for open bids, take the low bid, that’s it.
A couple problems with both of those ways. The first way, sometimes you don’t get the best price. The second way, sometimes you have an out-of-area company come in and build it. They get paid, but they’re not the one that’s going to be there to maintain it and make sure that it’s solid and continuing. So there’s a trade-off there.
With this situation, it’s a first right of refusal. 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.
(Emphasis added.) In fact, the ROFR provides no competitive bidding or price-matching mechanism; to the contrary, the incumbent gets the project, period.
The Court is correct that Breitbach’s summary of the ROFR was not accurate. Every legislator has a duty to their constituents and their colleagues, to educate themselves on legislation before them, especially the floor manager of a bill. When a legislator does not understand what a bill means or its practical effect, then they are not meaningfully representing their individual constituents (roughly 30,000 for each House member and roughly 60,000 for every Senator).
Iowans should expect and demand their legislators properly inform themselves of the legislation they are voting on because those votes decide the laws in which all Iowans must live under. Regardless of whether they agree on the policy choices or party affiliation every Iowan should view their representative failing to properly inform themselves on legislation they are voting on as unacceptable.
It is ultimately every legislator’s responsibility to inform (or not inform) themselves of a bill’s content and its practical effect. Whether the language itself is ambiguous, or there is uncertainty surrounding the outcome or practical effect of legislation, it is each individual legislator’s duty to make their own conclusions and judgment calls for every single vote they take in their respective chamber.
Under Iowa Senate Rule 12, every senator has access to the text of what they are or will be voting on. Every legislator also has partisan staff who can conduct research, provide analysis, and/or get amendments drafted for any legislation being considered by the General Assembly.
Indisputably, Breitbach gave some inaccurate responses about the bill history and what the bill would do. I will not try to condone or defend such conduct on the floor in either chamber. It shouldn’t happen, whether intentionally or unintentionally.
But it is not for the Courts to enforce (or opine on) what should or shouldn’t be said during floor debate in either chamber on any subject (full stop). From my observations of floor debate over the last couple years in both chambers, I believe the vast majority of legislators try to be accurate and sufficiently answer questions from other legislators for regarding legislation they are floor managing. I believe Breitbach was trying to be accurate and sufficiently answer questions asked. Just as much as I believe Bisignano knew the answers to the questions he was asking Breitbach.
IT’S FUTILE FOR THE JUDICIAL BRANCH TO EXAMINE WHETHER LOGROLLING OCCURRED
Iowa Supreme Court precedent has consistently held that the primary purpose of the single-subject requirement is to prevent logrolling. State v. Iowa Dist. Ct., 410 N.W.2d 684, 686 (Iowa 1987). Logrolling occurs when a provision unrelated to the core of a bill and not itself capable of obtaining majority support is tied to a popular bill having majority support. Logrolling also occurs when several matters, none of which individually has majority support, are joined in one bill and passage procured by combining the minority in favor of each into a majority willing to enact them all. Id.
First and foremost, the Court’s discussion and conclusions about logrolling in both PPH v. Reynolds IV and LS Power v. State rest on a flawed assumption: the General Assembly’s opinion on legislation is static, and whether a proposal has majority support remains relatively unchanged over time. Nothing could be further from the truth.
Whether specific pieces of legislation or policy currently would receive a constitutional majority of support in one or both chambers in the General Assembly can change on a daily and even hourly basis. How fast can majority support disappear? During the 2022 session, House Speaker Pat Grassley was embarrassed when a motion to suspend the rules to consider controversial legislation on commercial vehicle damage caps failed a record roll call vote on the House Floor. See “’Frankenstein bill” produces rare defeat for Iowa House GOP”, Laura Belin, Bleeding Heartland (March 18, 2022).
When one party has a slim majority, an absence by one or two members can determine whether “popular” legislation is able to receive a constitutional majority vote in one or both chambers. It is also common in the Iowa legislature for “unpopular” bills to become “popular” (and vise-versa) by including or excluding certain provisions.
For example, proposed changes to Iowa law on unemployment benefits (HF 2355) were only “popular” in the Iowa Senate if the bill included a one-week waiting period. See Senate Journal page 611-612 from March 23, 2022 (Senate adopts amendment S-5087 and passes HF 2355). However, those changes to the unemployment laws were “unpopular” in the Iowa House if the changes included a one-week waiting period. See House Journal page 861, April 26, 2022 (House refuses to concur in H-8259 to HF 2355).
The Senate then re-affirmed that the unemployment changes were still “popular,” even without the one-week waiting period. See Senate Journal 822-823, April 26, 2022.
Second, by not understanding technical and procedural aspects of the General Assembly, the Court wrongly assumed that the strike-after amendments adopted in the Senate and House which added the ROFR language/policy to HF 2643 is equivalent to “rolling it all into one bill,” or “attaching an unpopular matter to a bill that is sure to pass.”
Every member of the General Assembly has a myriad of procedural mechanisms and political options that he or she can use in order to shape the language within a bill prior to its final reading and vote on passage. Whether any legislator chooses to utilize these tools, or frankly, whether any legislator makes themselves aware of these options, is another matter. Some legislators are more sophisticated or experienced than others. But there were several mechanisms available to every legislator that could have forced ROFR as a standalone vote or to pass an appropriations bill/amendment without ROFR included.
Nothing compelled any of the 150 members of the Iowa House and Senate to vote affirmatively for HF 2643 as the one and only appropriations bill to be enacted during the 2020 session of the 88th General Assembly. They could have simply voted no and forced their respective bodies to change the language, including removing the ROFR section, until they obtained a majority vote.
Nothing prevented a legislator from filing a new amendment that was identical in every respect to HF 2643 except it excluded the ROFR provision. Nothing prevented any legislator from making a motion from the floor to table or indefinitely postpone consideration of HF 2643. Nothing prevented any legislator from making a motion to suspend any chamber rule they wanted if it allowed them to consider the ROFR provision as a standalone bill or as a portion thereof.
Every legislator chose not to use any of the mechanisms available to them in order to remove the ROFR from HF 2643 or force a standalone vote on the ROFR provision. The Court should not substitute its preference for those decisions made by state lawmakers.
Democratic State Representative Bruce Hunter used one of the most effective methods available to legislators to separate out a floor vote on one or more sections within an amendment during floor debate on SF 2311, a bill discussed quite extensively in the Court’s LS Power ruling. A legislator can request a division of an amendment and which pages and lines they want to separate out, which Hunter did to separate out the energy efficiency caps and the opt-out for energy efficiency plan language within amendment H-8414 for a separate vote. See House Journal p. 875-876; See also House Video Debate for SF 2311, at 3:51:50 – 3:57:20 am.
Similarly, Democratic State Senator Nate Boulton used a motion to request a division on an amendment during debate on SF 2272 in 2020 (the same year the ROFR passed as part of HF 2643). See Senate Journal 437-439.
Legislators serving in the 88th General Assembly obviously knew they had the ability to request a division on a large amendment in order to separate various parts out for a separate vote. Legislators in both chambers had the knowledge and ability to separate out the ROFR provision for a standalone vote within the strike-after amendments prior to it being adopted in both chambers. But no one in the minority or majority party in both chambers made such a request.
If no legislator chose to separate the ROFR section out of the amendments for a separate vote, can the Court honestly determine that attaching ROFR to the 2020 budget omnibus bill the “hallmark of logrolling”?
Third, the Court’s analysis incorrectly assumes that logrolling can only occur in the context of a single bill. In reality, the General Assembly can, and frequently does, engage in logrolling which involves more than one piece of legislation. The most observable example of logrolling that involves more than one bill occurs frequently at the end of session when one chamber refuses to pass the other chamber’s bill or the budget unless and until that chamber passes their chamber’s bill first. At the statehouse, such bills are frequently called “hostages.”
This scenario is more likely to occur when the chambers are controlled by opposite parties. See Abortion stand-off threatens Iowa budget deal (from the late stages of the 2011 legislative session). However, it can also occur when both chambers are controlled by the same party. See Cowards, Cynics helped believers pass Iowa’s six-week abortion ban from 2018. That year, a handful of Senate Republicans refused to vote for any budget bills until the Iowa House passed a near-total abortion ban, which was clearly an “unpopular” bill in the Iowa House that year. Ultimately, the handful of Senate Republicans refusing to vote for any budget bills forced the Iowa House to pass the abortion bill (SF 359) with just 51 votes so that the budget could be passed and the General Assembly could adjourn.
Practically speaking, enacting SF 359 in 2018 was just as much the product of logrolling as enacting the ROFR provision in HF 2643 in 2020. See LS Power at 33 (“The appropriations bill, necessary to fund the operations of the government, presented a ready vehicle to carry the ROFR across the finish line… Attaching an unpopular matter to a bill that is sure to pass is a hallmark of logrolling”). The only difference between SF 359 in 2018 and the ROFR in 2020 is that SF 359 was figuratively attached to the budget whereas the ROFR was literally attached to the budget.
If the General Assembly can engage in constitutional logrolling by simply using multiple bills instead of a single bill, then how can logrolling be the purpose behind the single-subject requirement? Even though the abortion ban (SF 359 in 2018) was obviously the product of logrolling, the Court cannot use that as grounds to strike it down, because it clearly complied with the single-subject requirement.
EXECUTIVE BRANCH’S ROLE?
The Court’s jurisprudence surrounding logrolling has ignored the executive branch. If the Court is correct that preventing logrolling is the intended purpose of the single-subject requirement, then the Court has omitted discussion of the only part of the enactment process that could potentially result in genuine instances of logrolling.
The only true form of logrolling that can occur during the enactment process is if the General Assembly combines legislation/policy that it knows the governor would veto with legislation/policy that is one of the governor’s priorities. In contrast to members of the General Assembly, the governor only has the power to approve or veto legislation that passes both chambers. See Art. III, Sec. 16. However, the governor has line-item veto power if the legislation is considered an appropriation bill. Id.
Since HF 2643 was an appropriation bill, Governor Reynolds could have line-item vetoed any sections she opposed. The fact that she did not line-item veto the ROFR provision, when she did line-item veto other portions of HF 2643, should be a strong indication that logrolling did not occur in the enactment of HF 2643. See Governor’s line-item veto message (line-item vetoing only sections 57 and 91 of HF 2643).
The governor could have vetoed HF 2643 in its entirety because she wanted to make sure the General Assembly passed a bill that complied with Art. III, Sec. 29. Or, she could have vetoed the bill because she didn’t get enough sleep the night before and was just in a bad mood. See Iowa Const. Art. III, Sec. 16 (no limitation on what “objections” the governor has to legislation).
The Governor could have line-item vetoed the ROFR provision and forced the General Assembly to have a standalone vote on the ROFR provision with a requirement that it receive two-thirds vote in each chamber to become law. See Id. (veto override is same as non-appropriation bills). But she didn’t. So clearly, the executive branch thought the ROFR provision was popular.
THE ENROLLED BILL DOCTRINE RESTRICTS REVIEW TO THE TEXT OF A STATUTE
Under longstanding precedent, the judicial branch has foreclosed itself from inquiring into the legislative process of enactment by recognizing various iterations of the “enrolled bill doctrine” (also known as the enrolled bill rule). Courts follow three different variations of enrolled bill rules. From Smith v. Thompson, 219 Iowa, 888, 901 (Iowa 1935):
- The first of these rules appears to be that the enrolled bill is the ultimate proof and exclusive and conclusive evidence that the bill passed the legislature in accordance with the provisions of the constitution.
- The second of the rules seems to be that the enrolled bill is a verity and resort cannot be had to the journals of the legislature to show that the constitutional mandates were not complied with by the legislature, except as to those provisions of the constitution, compliance with which is expressly required to be shown on the journal.
- The third of the rules seems to be that the enrolled bill raises only a prima facie presumption that the mandatory provisions of the constitution have been complied with and that resort may be had to the journals to refute that presumption, and if the constitutional provision is one, compliance with which is expressly required by the constitution to be shown on the journals, then the mere silence of the journals to show a compliance therewith will refute the presumption
The enrolled bill doctrine has been part of Iowa’s case law under the 1857 (current) Constitution since as early as 1858. See Clare v. State, 5 Iowa 509 (Iowa 1858).
Until 1935, the Iowa Supreme Court’s precedent followed the “conclusive enrolled bill rule,” which adheres to the principle that a bill which has been enrolled, properly authenticated by the presiding officers of both chambers of the legislature, and approved by the executive, is conclusively presumed to have been regularly and legally enacted, and that the courts have no power to go behind it and look at the legislative journals, or other records, for the purpose of determining whether constitutional requirements as to form and procedure were observed. Davidson Building Co. v. Mulock, 212 Iowa 730, 740 (Iowa 1931)(emphasis in original).
Under this conclusive enrolled bill rule, the courts cannot even use the legislative journals to assess whether constitutional requirements were observed. To put it bluntly, this rule means the judicial branch cannot look at anything occurring prior to a bills enrollment to determine the constitutionality of legislation—full stop.
In 1935, the Iowa Supreme Court departed from the conclusive enrolled bill rule in Smith v. Thompson. Overruling Davidson Building Co. v. Mulock, the Court adopted a modified verity enrolled bill rule (third bullet point above) which allowed courts to consult legislative journals to determine whether the legislature complied with provisions of the constitution that require certain entries to be made within the journals. In Smith v. Thompson, the journal records available to the court showed that the legislation being challenged never went back to the Iowa House to receive a vote upon final passage and that the yeas and nays of that final passage were not recorded in the journal, as required by Iowa Const. Art. III, Sec. 17. Smith v. Thompson at 901.
The Iowa Supreme Court returned to the conclusive enrolled bill rule in 1946 when it overruled Smith v. Thompson in Carlton v. Grimes 237 Iowa 912, 949 (Iowa 1946), which is still the law of the land in Iowa today. The Court’s rationale for returning back to the conclusive enrolled bill rule was as follows:
The general assembly is the instrumentality of the legislative department designated by the Constitution to exercise the powers and carry out the purposes of that department. The makers of the Constitution had a definite purpose in requiring the presiding officer of each chamber of the general assembly to sign the enrolled bill. Our decisions, and the courts generally, hold that such signing was intended as the authentication of the bill and the ultimate proof of the true expression of the legislative will and of the regular and constitutional enactment of the bill. As said by Justice Ladd in State ex rel. Hammond v. Lynch, supra, 169 Iowa 148, 155, 151 N.W. 81, 83, L.R.A. 1915D, 119:
“What is the design of exacting the signing of the enrolled bills by the presiding officers of the two houses and the approval of the governor, and that they be deposited with the secretary of state? Is it not that these are the final records of the acts of the legislature for the information and guidance of other departments of government? If so, why should they not be accorded the respect usually accorded solemn records?”
Who is better qualified or in a superior or more advantageous position to determine these facts than the officers designated? Certainly there is no one. It is a most important act and so recognized by every general assembly by a rule that the solemn act must be performed in the presence of each branch of the assembly, accompanied by the announcement of the signer that he is performing the act. We have called attention to the meticulous care with which the bill is enrolled and double checked by committees of each house for any errors. The presiding officers and the other members of the assembly hold high, honorable positions, to which they have been chosen by the voters of the state. They are under oath to support the Constitution. These particular duties must be entrusted to someone, and the Constitution and the general assembly have chosen them as the best qualified. Certainly they may err, but aren’t they less likely to err than the clerks and stenographers, who, in the hurry and distraction of a legislative assembly, must note and set down the daily proceedings and after adjournment compile and condense the record and get it to the printer so that it may be printed and made available for the next day’s session? The printer may also make errors and mistakes. We have the highest respect for the efficiency and honesty of those who perform these exacting duties but it appears to this court that the authentication prescribed by the Constitution should be accepted as conclusive proof of the enactment of a bill. The responsibility and the duty belong to the legislature, and the enrolled and signed bill which has been approved and signed by the governor and filed with the secretary of state should be accepted as conclusive proof of the execution of that responsibility and duty. The law recognizes a number of conclusive presumptions of law. This is done because it is regarded as the best public policy. The conclusive enrolled-bill rule has been regarded as in the interest of public policy until the holding to the contrary in Smith v. Thompson, supra, 219 Iowa 888, 258 N.W. 190. The former holding should be restored and readopted.
Iowa courts have followed enrolled bill doctrine for more than a century, and have followed the “conclusive enrolled bill rule” for all but eleven years of state history, because the Iowa Constitution requires very little in terms of official records and journal entries by the General Assembly when enacting legislation. The Court summarized what is (and is not) required of the General Assembly regarding journal entries and record keeping for each bill during the process of enactment in Carlton v. Grimes at 921-924:
 In section 9, Article III, supra, is the mandate that each house of the assembly shall keep a journal of its proceedings. There is no constitutional mandate as to just how, or in what manner, the journal of the proceedings shall be kept.
“In the absence of a statutory or constitutional requirement regulating the keeping of journals, the entries may be of a most cursory nature.” (Citing authorities.) Crawford, The Construction of Statutes (1940), section 46.
A constitutional provision directing each house to keep journals of its own proceedings does not require entries to be made of every action taken on proposed amendments to pending bills. State ex rel. Lane Drug Stores v. Simpson, 122 Fla. 670, 166 So. 262, affirmed on rehearing, 122 Fla. 582, 166 So. 227. The only absolute command as to any specific part of the proceedings which must be entered on the journal is the one in section 17 that, “the question upon the final passage shall be taken immediately upon its [the bill] last reading, and the yeas and nays entered on the journal.” It is only the yeas and nays on the “final passage” of a “bill” which must be entered on the journal. This mandate must always be complied with whether demanded or not demanded. The entry on the journal of the yea-and-nay vote is not required on an amendment to a bill, or on any other matter or question in the course of the bill’s enactment, except as stated in section 10, Article III, supra. In that section it is provided that a member of the Assembly may have his protest or dissent, respecting any act or resolution, entered on the journal, and the “yeas and nays of the members of either house, on any question, shall, at the desire of any two members present, be entered on the journals.”
 There is no requirement in the Iowa Constitution that any bill proposed, engrossed, enrolled, or enacted, or any amendment thereto, or substitute therefor, must be entered on any journal. Therefore the best and the only recorded legislative evidence of the text and content of any bill enacted is the enrolled bill authenticated by the signatures of the presiding officers, signed and approved by the governor, and deposited in the office of the secretary of state.
 The practice of reading any proposed bill to legislative bodies has been followed since their inception. It has been a practice quite uniformly recognized that every bill should be read three times, usually on different days. The constitutions of some of the states require this. There is no such provision in the Iowa Constitution. There is no express requirement that a bill be read any specified number of times before its enactment. The words “its last reading” in section 17, supra, may imply previous reading or readings, and yet a “last reading” may be a first, second, third, or other reading. The purpose of any provisions for reading a bill is to inform the legislature concerning the nature of the proposed enactment and to prevent hasty legislation. Since all bills are promptly printed and copies are given to each member, and a file thereof is kept on his desk, the matter of reading bills to each assembly has become of less importance and is not so much stressed in constitutions or assembly rules. See sections 259, 260, and 261, Code, 1939 (sections 17.15, 17.16, and 17.17, Code, 1946), for provisions relative to printing legislative journals and proceedings. In the Legislature of Iowa, and in many legislatures, a reading of the title is considered sufficient except for the last reading. Senate Rule 17 of the Fifty-first General Assembly provided that “Every bill * * * shall have received three several readings previous to its passage; but no bill * * * shall have its second and third readings on the same day, without a suspension of this rule, except on the last legislative day * * *.” Rule 44 of the House Rules of the Fifty-first General Assembly states: “Every bill shall receive two readings but no bill shall receive its first and last readings on the same day.” There is no mandate in the Constitution that the fact of any reading shall be entered on the journal. As said in Luce on Legislative Procedure (1922), 210: “Iowa legislators are not hampered by any constitutional obstacles in the matter.”  With the exception of the few mandatory provisions noted the Constitution of Iowa has given the general assembly a free hand in determining its rules of procedure. Whether either chamber strictly observes these rules or waives or suspends them is a matter entirely within its own control or discretion, so long as it observes the mandatory requirements of the Constitution. If any of these requirements are covered by its rules, such rules must be obeyed, but the observance or nonobservance of its remaining rules is not subject to review by the courts. Miller v. City of Oelwein, 155 Iowa 706, 711, 136 N.W. 1045.
As you can see, the General Assembly’s only constitutionally required journal entry relating to passage of a bill is the yeas and nays upon a bill’s final passage. There is no requirement to keep records of bills that are introduced but never receive a subcommittee hearing. There is no requirement to keep records of votes taken on amendments, nor any requirement to keep records of the text/content of amendments. There is no requirement to have live or archived video recordings of floor debate on legislation.
The General Assembly could limit its records relating to the passage of bills to solely journal entries logging the yeas and nays upon final passage starting tomorrow, and any legislation it passes would be as constitutionally firm as the legislation is passes under its current record keeping practices and online availability. “The only absolute command as to any specific part of the proceedings which must be entered on the journal is the one in section 17 that, ‘”the question upon the final passage shall be taken immediately upon its [the bill] last reading, and the yeas and nays entered on the journal.”’ Carlton at 922. It is only the yeas and nays on the “final passage” of a “bill” which must be entered on the journal. Id. (emphasis in original)
If the General Assembly decided to maintain only the constitutional minimum records and journal entries , the only three sentences within the Court’s “Enacting ROFR” section (pages 9 through 15 of the LS Power ruling) that would remain are:
“The appropriations bill, over fifty pages long and containing thirty-four divisions, was a potpourri of various unrelated subjects. See H.F. 2643, 88th G.A., 2d Sess. (Iowa 2020) (enrolled).
Besides the ROFR, H.F. 2643 included comprehensive spending provisions, sections 1, 3–7, 9, 11–18, 33–37, 39–44, 46–47, 55, 58–59, 73, 76–77, 82–83, 110–12, 120; the repeal of previous spending provisions, section 2; a provision for alternative venues in civil trials, section 10; suspension of certain Health and Human Services provisions, section 32; provisions for regulations related to COVID-19, section 45; directives to state agencies, sections 53, 54; authorization for the 10 Iowa State Fair Board to issue and sell revenue bonds, section 72; legislation relating to alarm system contractors, sections 86–89; directives related to economic development, sections 91–94; contingent appropriations, sections 97–101; a provision making some school districts eligible for an adjustment in state foundation aid, section 105; contingent repeal and amendment of hemp regulation, sections 107–08; amendments to the process for obtaining an absentee ballot, sections 123–26; provisions governing when the Board of Regents may hire attorneys, section 127; corrections and amendments to previous legislation and preexisting portions of the Iowa Code, sections 8, 19–29, 38, 49–52, 56–57, 61–69, 80–81, 91–92, 114, 116–17; effective dates for the foregoing, sections 30, 48, 70, 74, 78, 84, 90, 95, 102–04, 106, 113, 115, 118, 121; and retroactivity provisions, sections 31, 60, 71, 75, 79, 85, 96, 109, 119, 122. 2020 Iowa Acts ch. 1121 (codified in scattered chapters of the Iowa Code).
To capture that broad range of subjects, the bill bore 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.” Id.
In case it wasn’t glaringly obvious, the three remaining sentences can all be found within the four corners of the Act. If the General Assembly does not have a constitutional requirement to keep the records or make publicly available all of this information and procedural history mentioned in the Court’s ruling relating to HF 2643, SF 2311 from 2018, and HSB 540, then how can it be appropriate for the Court to utilize this information for any purpose, let alone as a secondary rationale for finding that the General Assembly violated the Constitution in enacting HF 2643?
The Iowa Supreme Court once believed the enrolled bill doctrine was a constitutional necessity in order to preserve the separation of powers:
What is the design of exacting the signing of the enrolled bills by the presiding officers of the two houses and the approval of the governor, and that they be deposited with the secretary of state? Is it not that these are the final records of the acts of the legislature for the information and guidance of other departments of government? If so, why should they not be accorded the respect usually accorded solemn records? If merely steps in the enactment of laws, why are not other matters exacted in the passage of a bill also required to be preserved? The Constitution nowhere requires the bill to be made of record. Aside from entering the yeas and nays on the journal on final passage, no record’ except the enrolled bill duly authenticated is exacted by the fundamental law; and as the legislature is a co-ordinate branch of the government, in no sense inferior to the other branches and equally bound by oath of obedience to the Constitution, we perceive no reason for not regarding its final record as embodied in such enrolled bill, authenticated as required by Sec. 16 of Article 3 of the Constitution, as absolute a verity as the judgment of a court. Of course, a judgment may be attacked, but not collaterally; and that is the only way an enrolled bill may be assailed.
Back of the three departments of our government is equal and each should be responsible to the people whom it represents. The legislature enacts laws and is commanded by the Constitution to enact them in a certain way. The executive enforces the laws and by the Constitution it is made his duty to take certain steps looking toward such enforcement in the manner prescribed therein upon the happening of certain contingencies. The judicial department is charged with the duty of interpreting the laws, adjudging rights and obligations thereunder. Such being the respective duties of the several departments, it would seem that when certified to have been performed as required by the Constitution, this should be conclusive on the other departments; and there would seem no more impropriety in the legislature’s seeking to go behind the final record of a court to determine whether it had obeyed some provision of the Constitution in making such record than there would be in the court’s seeking to go behind the final record made by the legislative department… Those courts which uphold the inquiry as to whether the legislature has observed the mandatory provisions of the Constitution necessarily assume that it were safer to entrust the enforcement of these to the judicial department than the legislature, and that the judicial department is the only one in which sufficient integrity exists – to insure observance of the provisions of the Constitution. Such an attitude seems intolerable.
“Upon principle then, in view of the division into departments under our form of government, each of equal authority, one department cannot rightfully go behind the final record certified to it or to the public from either of the other departments. And the judicial department is no more justified in going behind the final act of the legislature to see if it has obeyed every mandatory provision of the Constitution than has the legislature to go back of the final record made by the courts to see whether or not they have complied with all the constitutional requirements”. State Ex rel. Hammond v. Lynch, 169 Iowa 148, 155-157 (Iowa 1915).
Now, the Court avoids discussion of the enrolled bill doctrine altogether. In its LS Power ruling, the Iowa Supreme court cited Carlton v. Grimes just one time, in a footnote which listed the thirteen cases in which the Court found violations of Article III, sec. 29. The Court even noted that Carlton v. Grimes overruled Smith v. Thompson on “other grounds.” LS Power Ruling at 27 (footnote 6).
Those “other grounds” involved the Court re-establishing the conclusive enrolled bill doctrine as the law of the land in Iowa, which prevents the judicial branch from reviewing anything prior to enrollment when determining whether legislation violates the Constitution. Because the enrolled bill doctrine is a bedrock principle upon which the separation of powers between the legislative and judicial branch, I truly hope the Court brings it back to the forefront the next time it considers a case implicating Article III, Section 29.
THE TEXT OF ARTICLE III, SECTION 29 PROHIBITS THE COURT FROM CONSIDERING ANYTHING PRIOR TO THE GOVERNOR’S SIGNATURE OR VETO OVERRIDE
Because this analysis is written from the People’s perspective, I will be following the textual method of interpretation/construction. Proponents of textualism point to the simplicity and transparency of an approach that focuses solely on the objectively understood meaning of language independent of ideology and politics. Intro 8.2 – Textualism and Constitutional Interpretation, Constitution.Congress.gov (accessed 4/24/23).
Textualism prevents judges from deciding cases in accordance with their personal policy views, leading to more predictability in judgments. Id. When interpreting constitutional provisions, textualism promotes democratic values because it adheres to the words of the Constitution adopted by the People as opposed to what individual justices think or believe. Id.
Four canons within the textual method of interpretation are particularly relevant when analyzing Iowa Constitution Art. III, Sec. 29, and what is required of the judiciary when determining violations thereof:
- Ordinary Meaning Canon: Words should be given their ordinary, everyday meaning, unless the context indicates that they bear a technical sense
- Plain Meaning Canon: Follow the plain meaning of the text, except when a textual plain meaning requires an absurd result or suggests a scrivener’s error
- Presumption of Consistent Usage Canon: Identical words used in different parts of the same text are presumed to have the same meaning. Conversely, a material variation in terms suggests a variation in meaning
- Harmonious-Reading Canon: The provisions of a text should be interpreted in a way that renders them compatible, not contradictory
Statutory Interpretation: Theories, Tools, and Trends (congress.gov) (Index: Canons of Construction, beginning on page 50) (last updated March 23, 2023)
A simple textual comparison between Article III, Sec. 29 and the three sections of the Iowa Constitution that detail the process the General Assembly and the governor must follow when enacting legislation demonstrates that the explicit language used in Article III, Sec. 29 unambiguously prohibits the judicial branch from considering anything prior to the governor’s signature being affixed to an enrolled bill (or veto override by the General Assembly) when legislation is being challenged as violating the single-subject requirement or title requirement.
Here are the relevant sections of the Iowa Constitution detailing the process of enactment:
Article III, Sec. 15. Bills. Bills may originate in either house, and may be amended, altered, or rejected by the other; and every bill having passed both houses, shall be signed by the speaker and president of their respective houses.
Article III, Sec. 17. Passage of bills. No bill shall be passed unless by the assent of a majority of all the members elected to each branch of the general assembly, and the question upon the final passage shall be taken immediately upon its last reading, and the yeas and nays entered on the journal.
Article III, Sec. 16. Executive approval — veto — item veto by governor. Every bill which shall have passed the general assembly, shall, before it becomes a law, be presented to the governor. If he approve, he shall sign it; but if not, he shall return it with his objections, to the house in which it originated, which shall enter the same upon their journal, and proceed to reconsider it; if, after such reconsideration, it again pass both houses, by yeas and nays, by a majority of two thirds of the members of each house, it shall become a law, notwithstanding the governor’s* objections. If any bill shall not be returned within three days after it shall have been presented to him, Sunday excepted, the same shall be a law in like manner as if he had signed it, unless the general assembly, by adjournment, prevent such return. Any bill submitted to the governor for his approval during the last three days of a session of the general assembly, shall be deposited by him in the office of the secretary of state, within thirty days after the adjournment, with his approval, if approved by him, and with his objections, if he disapproves thereof.
The governor may approve appropriation bills in whole or in part, and may disapprove any item of an appropriation bill; and the part approved shall become a law. Any item of an appropriation bill disapproved by the governor shall be returned, with his objections, to the house in which it originated, or shall be deposited by him in the office of the secretary of state in the case of an appropriation bill submitted to the governor for his approval during the last three days of a session of the general assembly, and the procedure in each case shall be the same as provided for other bills. Any such item of an appropriation bill may be enacted into law notwithstanding the governor’s objections, in the same manner as provided for other bills.
Now here is Article III, Sec. 29:
Article III, Sec. 29. Acts — one subject — expressed in title. 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.
The Iowa Constitution exclusively refers to bills in all three sections detailing the enactment process to be carried out by the Legislative and Executive Branches when making laws. In contrast, Iowa Const. Art. III, Sec. 29 exclusively uses the word Act when referring to what is and is not a violation of the single-subject or title requirements thereof.
- A bill is a legislative proposal originating in either house, normally proposing a change in the statutes requiring passage by both houses of the Legislature and approval by the Governor in order to be effective.
- An Act is a bill or certain type of joint resolution which has passed both houses of a Legislature, has been enrolled, certified, approved by the Governor, or passed over the Governor’s veto and published.
Glossary of Legislative and Budget Terms, “The General Assembly”, LSA Legislative Guide (November 2022), page 50.
Once a bill completes the enactment process, it becomes an Act. An Act only comes into existence after a bill completes the enactment process.
One would have to presume the framers of the Iowa Constitution were very purposeful in distinguishing between its use of the terms bill and Act in the various sections of the Constitution. The most logical and constitutionally sound explanation for the use of the term Act in Art. III, Sec. 29, as opposed to the term bill, is because the framers (the People once ratified) wanted to make sure that the Judicial Branch did not use Article III, Section 29 as an excuse or false justification to insert itself into the legislative process. See Art. III, Sec. 1 (“Departments of government. The powers of the government of Iowa shall be divided into three separate departments — the legislative, the executive, and the judicial: and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted”). (Emphasis added)
The single-subject and title requirements explicitly (unambiguously) apply exclusively to Acts. It does not apply to bills, amendments, conference committee reports, enrolled bills, or even a codified statute. Considering anything prior to the governor’s signature (or veto override) and anything after codification is not directed under the express language of Art. III, Sec. 29, nor is it permitted by any other provision in the Iowa Constitution.
THE CONSTITUTION AND COURT’S PRECEDENT REQUIRE ALL OF HF 2643 TO BE DECLARED VOID
Two distinct violations can occur under Article III, Section 29, and each has a distinct remedy. The remedy demanded by the Constitution is in direct proportion to the level of deceit committed upon the People of Iowa.
Title violation remedy
The less severe violation, which mandates a less severe remedy, is a violation of the title requirement. The purpose of that requirement is to give legislators and citizens alike notice of a bill’s contents, reducing the possibility of legislation by surprise or fraud. State v. Iowa Dist. Court at 686 (citing Western Int’l, 396 N.W.2d at 365).
A title is sufficient, even though it is broad, if it gives fair notice of a provision in the body of an act. Id. (citing Streepy, 224 N.W. at 43. The enactment is constitutionally valid as to the title unless matter utterly incongruous to the general subject of the statute is buried in the act. Id. In the final analysis, “[t]he purpose of the [title] requirement is to guarantee that reasonable notice is given to legislators and the public of the inclusion of provisions in a proposed bill. Id. at 687.
The Constitution specifies that the remedy for a title violation is to strike only the portions of the act not expressed in the title. See Iowa Const. art. III, Se. 29 (“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.”). As the only fraud committed upon the people is that they were not given notice of an Act’s content via the title, this remedy is appropriate because it strikes only the portions of the Act the People were not given notice to.
For example, in State v. Iowa District Court, the Court did not find a violation of the single-subject requirement. Iowa Dist. Court at 687 (“We conclude these provisions, although perhaps more naturally separated into several different acts, are rationally related to the regulation of alcohol and its consumption or possession”).
But when it found a title violation in that same enactment, it stuck only the portion of the Act not expressed in the title. Id. at 688 (“Nothing in the act’s title indicates first offense drunk driving will be addressed. No legislator or citizen reading the title could anticipate a provision dealing with first offense drunk driving, much less a provision dealing with magistrates’ jurisdiction over such offenses, would be included in the act. Nor is this portion of section 7 directly or indirectly related to any other provision mentioned in the title. We hold this portion of section 7 violates the title requirement of article III, section 29, and was properly struck by district court. The other provisions of House File 2472 remain unaffected by this decision. See Iowa Const. art. III, § 29”). See also State v. Nickelson, 169 N.W. 2d 882, 837 (“The title of the Act before us is silent as to any act that is prohibited or that might lead to criminal prosecution. In that particular it fails to meet constitutional requirements… Our conclusions herein apply only to what is now section 710.12, Code of 1966, and in no way reflect on chapter 554, Code of 1966”); Nat’l Benefit Acc. Ass’n v. Murphy, 269 N.W. 15, 19 (Iowa 1936) (“We cannot escape the conclusion that the title failed to express the subject matter which was contained in section 1 of the act in question, and that this section of the act is, therefore, violative of the constitutional provision.”); Smith v. Thompson, 258 N.W. 190, 194 (Iowa 1934) (“Inasmuch as the general assembly in drawing the title saw fit to specifically enumerate the sections of the statutes which it proposed to repeal or amend, rather than to draw the title in general language, it must be held that the omission in the title of any reference to the sections governing the salary of the members of the general assembly and of the lieutenant governor must be held to invalidate section 29 of the act”); Chi., R.I. & P. Ry. v. Streepy, 224 N.W. 41, 44 (Iowa 1929) (“Nothing of that kind is indicated in the title to this act; hence we conclude that, in so far as the act provides for an emergency fund, and confers power to levy the same, these provisions, not being specified in the title, are in violation of the constitutional inhibition, and therefore void. This, of course, is limited to the part of the act which makes these provisions, and does not in any way affect the remainder of the act.”); In re Breen, 222 N.W. 426, 428 (Iowa 1928) (“[T]he subject of a physician’s liability to revocation of his professional license because of conviction in the Federal court of violation of the Federal statutes or regulations relating to narcotics is so alien to the subject-matter, purpose, and scope of that act, as indicated or suggested by its title, that the provision therefor as contained in Section 25-a7 (Section 2110, Code of 1927), enacted under that title, must be held to be in violation of Section 29, Article 3, of the Constitution, and void”); State v. Manhattan Oil Co., 203 N.W. 301, 303 (Iowa 1925)(“ The title makes no reference to motor carriers except those engaged in the transportation of persons or property for hire over the public highways of the state. No reference is made in the title to motor carriers not for hire, of which the defendant is one; and, therefore, as to the defendant the act is void. Holding, as we do, that the provision of Chapter 97 of the Acts of the Fortieth General Assembly upon which the indictment is based, is void for the reasons above stated, we deem it unnecessary to consider and determine the propositions involving the constitutionality of the act in other particulars.”)
Single-subject violation remedy (and the exception thereto)
The more severe violation, which mandates a more severe remedy, is a violation of the single-subject requirement. See Art. III, sec. 29 (Every Act shall embrace but one subject, and matters properly connected therewith). The single subject requirement is primarily intended to prevent “logrolling.”
Logrolling occurs when a provision unrelated to the core of a bill and not itself capable of obtaining majority support is tied to a popular bill having majority support. Logrolling also occurs when several matters, none of which individually has majority support, are joined in one bill and passage procured by combining the minority in favor of each into a majority willing to enact them all. State v. Iowa Dist. Court at 686 (internal citations omitted).
When there is a single-subject violation resulting from logrolling, the Constitution demands that the entire Act be null and void. “Under single-subject clauses in constitutions, as a general rule an ungermane provision in an act renders the whole act void”. Green v. City of Cascade, 231 N.W. 2d 882, 887 (Iowa 1975)(citing Power, Inc. v. Huntley, 39 Wn.2d 191, 235 P.2d 173). The reason given is that a court cannot say which, if either, of the two unrelated parts of the act the legislature would have enacted had the legislature voted on the two parts separately. Id. (citing 1 Cooley, Constitutional Limitations, p. 308 (8th ed.).
Likely due to the severe remedy that is required upon the finding of a single-subject violation, the Court has held that the general requirement that the entire act be rendered null and void is inapplicable where one of the subjects of the act is its main focus, while another is only secondary. Western International v. Kirkpatrick, 396 N.W. 2d 359, 366 (Iowa 1986)(citing Green v. City of Cascade at 887). “When we can ascertain which of the two provisions the legislature would have enacted, we can uphold the legislative intent by striking only the secondary subject.” Id.
We can understand why the Court would seek to utilize this exception. “In passing upon the constitutionality of acts of the legislature such acts are given the benefit of a presumption in favor of constitutionality. An act of the legislature will be declared unconstitutional by the courts only when it is clearly, plainly and palpably so, and it is the duty of the courts to give such a construction to an act, if possible, as will avoid this necessity and uphold the law.” State v. Nickelson, 169 N.W.2d 832, 834 (Iowa1969) (quoting State v. Talerico, 227 Iowa 1315, 1322, 290 N.W. 660, 663 (Iowa 1940)).
The Court has utilized this “exception” to the general rule that the entire act be rendered null and void in 100 percent of the cases it found a single-subject violation. LS Power at 28, footnote 7 (See Taylor, 557 N.W.2d at 526 (holding a provision criminalizing trafficking in stolen weapons violated single-subject requirement when all but six sections of the seventy-four-section bill related to juvenile justice); Giles, 511 N.W.2d at 625 (holding a substantive change incorporated into a Code correction bill violated single-subject requirement); W. Int’l Ins., 396 N.W.2d at 364–65 (same)). The Court likely excluded Green v. City of Cascade in this footnote because it ultimately found no violation of the single-subject requirement due to subsequent action by the General Assembly repealing the offending provisions. Green v. City of Cascade at 887.
Why the exception cannot be used for HF 2643
The Court (or District Court) must tread very carefully when considering whether to ultimately use this exception to the Constitution’s demand that the entire act be rendered null and void upon the finding of a single subject violation. The Court may not disregard the clear mandate of the constitution in interpreting the intent of the legislature. Nickelson at 837.
If the Court’s determination of an Act’s main focus and secondary focus is not overwhelmingly supported by the text of the Act, or if this exception is used by the Court to strike down only the portion of an Act that it believes is “unpopular” (result of logrolling), then the functional result will be that the Court exercised a line-item veto on legislation enacted by the political branches of government. The governor doesn’t even wield that power for the vast majority of bills passed by the General Assembly. See Iowa Const. Art. III, Sec. 16 (Governor has authority to line-item veto only appropriation bills).
To be clear, I am not questioning the disposition reached in the Court’s March 23 order granting a temporary injunction in LS Power. That decision was not a decision on the merits. It held only that LS Power was likely to succeed on the merits and granted a temporary injunction while the district court considered the case on the merits. This section is only meant to offer additional considerations that a future litigant may want to present to the Court if it so chooses.
Contrary to the situations in Western International and Giles, the ROFR was not just a substantive provision that was intertwined with code corrections. Contrary to the situation in State v. Taylor, the ROFR was not cured by the General Assembly the next time it had an opportunity to cure the constitutional defect by reenacting the offending provision. See 97 Acts chapter 119.
Most important, contrary to the situation in Green v. City of Cascade, the General Assembly did not repeal all of the sections within HF 2643 except for the ROFR. See Green v. City of Cascade at 887 (“Plaintiff is correct that under single-subject clauses in constitutions, as a general rule an ungermane provision in an act renders the whole act void… A combination of factors makes the general rule inapplicable here… the 65th General Assembly deleted the housing code provisions, evincing its view as to the portion of the bill it desired; we are not left to speculate about that.”).
First, HF 2643 was a massive omnibus appropriations bill that contained, at a minimum, two substantive policy changes unrelated to the appropriations therein (intolerable subject if found to not violate single-subject requirement). One was the ROFR. The other were changes made to absentee ballot requirements found in sections 123-126 of HF 2643.
Second, both the ROFR and the absentee ballot changes were challenged in court. (If the ROFR granted substantive rights, LS Power at 32, then the absentee ballot changes reduced or removed substantive rights). The ROFR was held to be likely unconstitutional. See LS Power at 38-39. However, the absentee ballot changes have thus far been upheld as constitutional. See next section discussing League of United Latin American Citizens of Iowa v. Pate, No. 20-1249.
Third, the fact that HF 2643 was an appropriation bill is a significant distinction from the four cases mentioned in the preceding paragraph. HF 2643 was one of the few bills in which the governor has constitutional authority to line-item veto. The governor could have line-item vetoed section 128 (the ROFR section) out of HF 2643 and no one would have questioned her authority to do so. She line-item vetoed two sections within HF 2643, but not the ROFR provision. See Item Veto Message – HF 2643, House Journal Supplement, page 795. With her signature on HF 2643, and in the absence of a line item veto, we can safely assume that she affirmatively determined that the ROFR policy was “popular” and in the best interest of the People of Iowa.
Two out of three branches of Iowa’s state government determined HF 2643 (including the ROFR provision) was popular enough to enact into law. For the judiciary to play an undiminished role as an “independent and equal coordinate branch” it must not encroach upon the authority of the other departments. State v. Robinson at 322 (citing Flattery, 268 N.W.2d at 873).
There is no question that the Constitutional requirements for enactment were complied with. There is no question that HF 2643 violated the title requirement by not pointing to the ROFR provision. The question the Court must carefully consider is whether HF violated the single-subject requirement found in Article III, Section 29, as well as the remedy that is required upon finding a violation thereof.
By only issuing a temporary injunction and remanding the case back to District Court to consider the merits, the Court gave the General Assembly the necessary time to repeal the provisions which caused HF 2643 to violate the single-subject requirement, or in the alternative, to reenact the ROFR provision as a standalone bill to remove any constitutional doubt as to its popularity.
When given this opportunity, the Senate and House Republicans sought to do neither. Rather, the majority party chose to stop answering legitimate questions while debating controversial legislation in each respective chamber.
If the General Assembly does not repeal or reenact the offending the offending provisions prior to the district court ruling on the merits, and if the district court concludes that HF 2643 violated the single-subject requirement found in Article III, Section 29 (as the Supreme Court of Iowa said was likely), then the court “must not hesitate to proclaim the supremacy of the Constitution” and hold that HF 2643 is null and void in its entirety. Western International at 366 (quoting Streepy at 43). For if it does not apply the remedy demanded by the Constitution, it may be upholding the partial expression of the People’s will as reflected in the laws passed by its elected representatives, but it does so by ignoring the ultimate expression of the will of the People of Iowa as reflected in the constitutional restraints it placed on all three branches of government they created.
It is sometimes said that the courts assume superiority over the legislature in determining that an act violates a provision of the Constitution. State ex rel. Hammond v. Lynch at 156. This is not so, however, for they merely undertake to determine whether an act of the general assembly is in conflict with the Constitution and if it is, the statute necessarily must yield, for that the Constitution has a sanction greater than can be given by the action of any department of state. Id.
“A constitution… is higher law. Once a court begins constructing damages remedies for constitutional violations—without the rich history of the common law or the clear direction of a statute—tension, conflict, and uncertainty result. There is no clear hierarchy between the judicial branch and the legislative branch. Courts have neither the freedom and flexibility they enjoy with normal common law development nor the specific mandate that a statute provides. Meanwhile, the legislature has a “say” regarding the constitutional damages remedy, but its authority to legislate is circumscribed by adequate-remedy limits which are difficult to delineate. These inevitable and unpredictable forays by each branch into the other’s territory violate separation of powers. See Iowa Const. art. III, § 1.” Burnett v. Smith, No. 22-1010, page 33 (Iowa May 5, 2023).
THE PUBLIC’S ACCESS TO THE GENERAL ASSEMBLY’S ACTIVITY AND RECORDS IN THE INTERNET ERA
Technology has greatly advanced in the decades since the Court decided Carlton v. Grimes. The Iowa General Assembly has continued to make its activities more open and available to the general public as well as to legislators. Although the Constitution does not require it, the General Assembly maintains an accessible and easily navigable website, which allows the public and legislators to electronically access bills, amendments, bill tracking tools, debate calendars, chamber rules, committee and subcommittee hearing schedules, chamber journals, legislative guides, lobbyist declarations, the full text of the most up-to-date Iowa Code, archived and historical versions of Iowa Code, various versions of the Iowa Constitution, the most up-to-date Administrative Code, proposed and adopted amendments to the Administrative Code, detailed maps of legislative districts, interactive tools to help Iowans find who their elected Senator and Representative are, live and archived transcriptions of each chamber’s daily legislative activity, live and archived audio feed of each chambers daily legislative activity, live and archived video feeds for each chambers daily legislative activity, executive orders, attorney general opinions, and much more (but you get the point).
The General Assembly provides all of that information electronically to the public on a voluntary basis.
Because the legislature is under no constitutional obligation to provide so much information and access to its inner workings, it would be fully within its authority to shut down the Iowa legislative website whenever it so chooses. Such a loss in public access to current and historical legislative activities would be devastating when it comes to right of the People to seek redress of their grievances, the right to know where their elected representatives stand on particular issues, the ability to stay informed of upcoming law changes that could impact their lives and livelihood, and government accountability generally.
If the Court wants to ensure the legislative website and all of its electronically available information remains available to the public, it would be wise to stop utilizing the records and information contained on the legislative website in rulings that invalidate legislation or portions of legislation the General Assembly enacts in compliance with the Constitution.
Recent rulings have included vague and contradictory statements such as “ultimately, we should decide whether a violation of article III, section 29 occurred based on the text of HF 594, not the process of its enactment” (PPH v. Reynolds IV at 31) or that “it is not our role to second guess policy choices of the elected branches or regulators; but it is our role to adjudicate whether constitutional lines were crossed in the enactment of H.F. 2643” (LS Power at page 38). The Court also criticized the circumstances of enactment, unfairly accused a lawmaker of misleading the Senate and being confused, treated affidavits filed by individual legislators as conclusive proof that the legislative branch lacked the votes to pass the very policy/language being challenged. The court went so far as to pass judgment on the underlying merits of the policy choices made by the General Assembly.
None of the above gives the General Assembly the assurances it will need to continue to keep records not mandated by the Constitution and make those records available electronically.
If the Court continues down this road, the General Assembly may choose to restrict what information, records, and inner workings of the General Assembly are available to the judicial branch and lawyers arguing in its tribunals (to the detriment of the Public) in order to preserve its status as a co-equal branch of government.
I doubt the General Assembly would take that step unless absolutely necessary. But I hope it would consider or threaten to consider such action, if that becomes necessary to reign in a judiciary that is acting “with general police power to ensure that legislative leaders act courteously, provide advance notice of potentially controversial measures, and provide the public with a broad opportunity for input before legislation is enacted.” PPH v. Reynolds IV, No. 21-0856, at 105 (Justice Appel, dissenting).
Additionally, in rare cases the legislative website contains errors or contradictions regarding a bill’s history. For example, if you look at Senate File 86 from the 90th General Assembly on the Disposition of Bills page, it shows the last action as “Introduced, referred to Commerce. S.J. 140”. But if you go to the Bill History page for Senate File 86, it shows that Senate File 86 had a subcommittee on 1/26/23 and the subcommittee “recommends amendment and passage ”. Which of those web pages is correct? Which one could/would the Court rely on?
If the legislative website said that House File 9999 (fake bill) passed both chambers; was signed by the Speaker of the House and signed by the President of the Senate; and signed by the Governor; but the final yeas and nays were not recorded in the official journals of each chamber, and was not found anywhere within the Secretary of State’s possession, would the Court give House File 9999 the effect of law? I certainly would hope not.
The very bill being challenged in LS Power v. Iowa is missing legislative history the Court found relevant on its bill history page. See Bill History for HSB 710 & HF 2643. According to the bill history page, HSB 710 did not receive a subcommittee hearing in the House, did not pass out of subcommittee in the House, and does not state that HSB 710 was renumbered as HF 2643. Id. However, if you look at the committee minutes (unapproved minutes) for the Appropriation Committee in the House on June 10, 2020, it shows that the Committee dissolved into a “subcommittee of the whole” and passed HSB 710 by a voice vote.
According to the bill history, HF 2643 never received a subcommittee hearing in the Senate, nor pass out of subcommittee in the Senate. However, if you look at the agenda for the June 13, 2020 Senate Appropriations Committee meeting, it suggests there was a subcommittee of the whole prior to the bill being approved by the committee. Whether that subcommittee of the whole happened cannot be confirmed via the legislative website, because no minutes were posted online.
Of course, the General Assembly is not always as transparent as it should be, doesn’t provide as much notice as it should, or otherwise fails to conduct itself in a manner that falls short of what every Iowa Ccitizen should expect and receive from their legislative branch. However, the Constitution does not envision the judicial branch dictating the means by which it enacts legislation.
By the same token, the Constitution does envision the courts striking portions of acts that violate the title requirement and rendering entire acts null and void if they violate the single-subject requirement. See Iowa Const. Art. III, Sec. 29.
The checking mechanism for infirmities or less than ideal means by which the General Assembly enacts legislation lies with the People every two years where they have to option to replace up to 100 percent of the members in House of Representatives and half of the members in the Iowa Senate. See Iowa Const. Article III, Sections 3 and 6. Or it comes from the People encouraging their elected representatives to propose constitutional amendments to impose certain requirements upon the respective branches of government, and subsequently voting to ratify those amendments into their Constitution. See Iowa Const. Art. X (Amendments to the Constitution).
IOWANS MUST DEMAND MORE OF THEIR LEGISLATIVE BRANCH
One very troubling aspect is that the General Assembly was astoundingly reckless when it decided to have one giant budget omnibus bill instead of the traditional budget groupings the legislature has used for decades (Transportation, Infrastructure, Justice Systems, Judicial Branch, Health and Human Services, Economic Development, Education, Agriculture and Natural Resources, Administration and Regulation, Federal Block Grant, and Standing Appropriations). See 2023 Appropriation Analysis.
But the Republicans in the House and Senate showed utter contempt for the Constitution, specifically Article III, Section 29, when the majority party also included at least two substantive policy changes in that giant omnibus bill without drawing attention to them in the title. I refer to sections 123 through 126 (absentee ballot changes) and section 126 (ROFR);
Here is the title of HF 2643:
RELATING TO STATE AND LOCAL FINANCES BY MAKING APPROPRIATIONS, PROVIDING FOR LEGAL AND REGULATORY RESPONSIBILITIES, PROVIDING FOR OTHER PROPERLY RELATED MATTERS
Every elected member of the General Assembly and the officers of both chambers annually take an oath to support the U.S. and Iowa Constitution, and to faithfully discharge their duties to the best of their ability. Iowa Const. Art. III, Sec. 32 (Oath of members); See also Iowa Code 2.8 (Oaths). The General Assembly should be striving to comply with the Iowa Constitution in everything that it does, regardless of whether their actions will receive judicial scrutiny.
One mind-boggling aspect of this situation is that House and Senate Republicans could make LS Power’s lawsuit moot at any point in time by passing the ROFR language/policy in both chambers and having the governor sign it (again). Re-enacting the ROFR and making sure it complies with the single-subject and title requirements would cure the constitutional defects the Court said were likely. LS Power at 35.
Instead of curing any likely violations of the single-subject and title requirements, Republicans in both chambers respond to the Court by refusing to answer legitimate questions regarding ambiguous legislation by the minority party. The General Assembly has cured legislation that was held to violate the single-subject requirement in the past, so it should be presumed it still knows how to do such. See 97 Acts chapter 119 (The General Assembly cured any constitutional defects after State v. Taylor held that 1994 Iowa Acts chapter 1172 violated the single-subject requirement and there was doubt as to the constitutionality of the Act and the specific section stuck down).
In the alternative, the Senate and House Republicans could repeal the ROFR (and any other provision that makes HF 2643 violate the single-subject requirement) and not risk the judicial branch striking down HF 2643 in its entirety, including virtually all of the appropriations for the Fiscal Year 2021 Budget. See HF 2643, sections 1, 3–7, 9, 11–18, 33–37, 39–44, 46–47, 55, 58–59, 73, 76–77, 82–83, 110–12, 120). The General Assembly has done this as well in its history. See Green v. City of Cascade at 887 (“Second, the 65th General Assembly deleted the housing code provisions, evincing its view as to the portion of the bill it desired; we are not left to speculate about that. Third, when §§ 199 through 352 went into effect on July 1, 1975, they did not actually contain the ungermane sections”).
THE TRUE PURPOSE OF THE TITLE AND SINGLE-SUBJECT REQUIREMENTS IN ARTICLE III, SECTION 29
The single subject and title requirements in the Iowa Constitution are very important limitations the people of Iowa put on the General Assembly. The Constitution protects the People from government abuse, overreach, and the erosion of their fundamental rights and liberties.
To be clear, the Constitution does protect certain branches of government from invasions by other branches of government. See Iowa Const. Art. III, Sec. 1 (Departments of Government). However, those provisions protecting and walling off the various duties and authorities of the separate and co-equal branches are only included in the Constitution because those provisions are necessary to carry out the fundamental purpose/goal of the Constitution as a whole, which is to protect the People from government abuse; overreach; and ultimately, tyranny.
The purpose of the single-subject and title requirements must be read and analyzed with the preeminence of the Iowa People in mind.
TRUE PURPOSE OF THE TITLE REQUIREMENT
The title requirements guarantee that the public (not members of the legislature) have notice of what the laws the General Assembly has passed. The intent of the title requirement is to prevent the union, in the same act, of incongruous matter, and of objects having no connection, no relation. And with this, it was designed to prevent surprise in legislation, by having matter of one nature embraced in a bill whose title expressed another. State v. County Judge at 282. The purpose of the title requirement is to reduce the possibility of legislation by surprise or fraud. Long, 142 N.W. 2d at 383). But as the title requirement only prohibits Acts with misleading titles, the provision is intended to protect the People from being surprised by laws that they had no notice of.
Perhaps more important, the title requirement’s purpose is to prevent the legislature from using vague and insufficient titles so that the People know where their respective Senator and Representative stand on a particular issue (subject). It does this by preventing their representatives from evading accountability by stating that they didn’t know that [important/controversial provision] was in legislation they voted for or against. “Where one reading a proposed bill, with the title in his mind, comes upon provisions which take him by surprise, which he could not reasonably have anticipated, and so both citizen and legislators are misled and thrown off their guard, it is our duty to declare the condemnation of the fundamental law.” Streepy at 858 (quoting In re Application of the Mayor, 99 N.Y. 569; 2 N.E. 642).
Article III, Section 29 does not prohibit bills with misleading titles. It prohibits Acts with misleading titles. A large amount of bills are amended before they are finally agreed upon, and frequently, the titles must be amended as a result. Carlton at 940. Sometimes this is done by the same amendment which alters the body of the bill, but often the title amendment is postponed until the bill is passed, as it might be wasted effort to do so before that, since the bill might not be adopted. Id.
An examination of the journals of any General Assembly of Iowa will disclose hundreds of entries showing that after the passage of a bill “its title was agreed to” or “its title was amended and agreed to” or that “unanimous consent was given to the Chief Clerk of the Senate [or of the House] to correct the title.” Id. Accordingly, the title requirement must have a purpose that occurs after a bill becomes an Act. Legislators have a duty to check for a bill’s conformity with Article III, Section 29. That is why legislators are asked and vote on whether they agree to the title. Id. This presumes that they are cognizant of all of the sections and subject(s) in the legislation before agreeing or disagreeing with the title upon final passage.
Legislators take an oath to uphold and defend the Iowa Constitution. Part of that oath is striving to pass legislation that complies with Article III, Section 29. Once a bill is enacted, passes both chambers and signed by the governor, it thereby becomes an Act and the duty to ensure compliance with Article III, Section 29 shifts to the judicial branch as the last line of defense. This is what the People demand of their branches of government through the explicit language in their Constitution.
The legislators may receive an incidental benefit through the title requirement because it requires that the title properly describe and give notice to the People of the provisions contained within an Act, thereby increasing the likelihood that the bill they are considering has a title which complies with Article III, section 29.
But any benefit they receive is merely incidental to the true purposes of ensuring that the People are provided notice of the laws that they are expected to live under and comply with. In addition, a descriptive title lets the People know whether their representative or senator voted for or against a policy that impacts their lives, so they can decide whether to vote for or against their respective legislator in the next election.
Judge Cooley once stated that the purpose of the title requirement is to prevent surprise or fraud upon the legislature by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted. Streepy at 855. No such notice was given to the People when the General Assembly passed the ROFR as part of an omnibus budget bill without including any language within its title that would alert the People to its presence within.
But for the lawsuit filed by LS Power and the Supreme Court rending the opinion it did, the vast majority of Iowans would have no clue that the 2020 omnibus budget bill contained a ROFR provision that has a substantial impact on the reliability, cost, and control of their regional electrical grid; and thereby, a substantial impact on their daily lives. It is for these injuries committed against the People (not the legislature) that the ROFR provision violates the title requirement in Article III, Section 29.
TRUE PURPOSE OF THE SINGLE-SUBJECT REQUIREMENT
The true purpose behind the single subject requirement (and relatedly, why the yeas and nays must be recorded in the journal upon a bill’s final reading and passage), is to create a record of an elected official’s policy position on each specific issue. That allows voters to make an informed decision on whether to continue to support that elected official, or vote for someone who holds different policy positions.
The vast majority of Iowans do not know whether their representative or senator voted for or against the ROFR provision because they agreed or disagreed with the underlying policy. That is because the ROFR provision was attached to the sole appropriation bill in 2020. That bill was essential to fund government and to end the session of the General Assembly during the COVID-19 pandemic, to grant the judicial branch the flexibility and funds to operate in the pandemic, to allow the Iowa State Fair to sell bonds so it could stay afloat, and provide the rest of the state budget so that the business of government could continue in the middle of a pandemic.
The single-subject requirement’s purpose cannot be the prevention of logrolling for three reasons. First, the Court is not equipped or constitutionally authorized to determine whether logrolling occurred in the process of enacting legislation. Whether certain language/policy is “popular” or “unpopular” changes with such frequency and with the slightest changes in variables it is literally impossible for the Court to ever determine definitively whether the legislation was “popular” or “unpopular” at the time the respective chambers voted on the language/policy.
Second, legislators have countless mechanisms that can be used during floor debate to force a standalone vote on any policy/language within a bill. Only the governor can effectively be logrolled, because she cannot change the language/policy prior to approving or vetoing.
Finally, the General Assembly can engage in logrolling without violating the single-subject requirement by utilizing multiple bills in the logrolling process.
The artificial dichotomy between popular and unpopular provisions, along with the notion that the single-subject requirement is primarily aimed at preventing “logrolling,” forces courts to engage in an analysis that is underinclusive of what Article III, section 29 actually prohibits.
To illustrate, consider a bill titled “An Act relating to random things that a constitutional majority in each chamber support,” which contained 100 distinct policy changes completely unrelated to one another, which all received a majority vote in each chamber as individual floor amendments. If such a bill passed and the governor signed it, would the Act violate the single-subject requirement? (Yes, it would.)
Such an Act would not meet the definition of “logrolling,” because it did not involve attaching an unpopular provision to popular provisions. And it does not involve the combining of several unpopular provisions in order to procure a majority for the bill as a whole. If this hypothetical Act relating to random popular things violates the single-subject requirement, but is not the product of logrolling, then there must be another purpose behind the single-subject requirement.
The second purpose often mentioned by the Court is facilitating an orderly legislative process….by limiting each bill to a single subject [and allowing] issues presented by each bill [to] be better grasped and more intelligently discussed by the legislators. Western Int’l, 396 N.W.2d at 364; Long, 142 N.W.2d at 364 & 382. But that alleged purpose is similarly incidental to the true purpose of the single-subject requirement. It is inaccurate to say that the Iowa Constitution limits a bill to a single subject. A bill can have one thousand subjects completely unrelated to each other.
An Act, on the other hand, is limited to a single-subject and matters properly connected therewith. To illustrate, would an Act violate the single-subject requirement if the underlying bill was introduced with one-thousand sections/provisions unrelated to each other, but it was amended in both chambers down to just one section renaming the state bird and amending the title to accurately reflect it relates to naming the state bird before final passage? (No, it would not violate the single-subject requirement.)
The single-subject requirement ensures the public knows where their elected officials stand on very narrow/specific policy issues. If the General Assembly could pass giant omnibus bills that contain hundreds if not thousands of different policies, like Congress does for virtually everything now, that would give elected officials the ability to justify or explain their yes or no vote based on a handful of provisions within that giant bill. “I voted no on that bill because it contained XYZ, but I supported ABC within that bill.”
The people have no idea whether that is true or not, because their elected official was not pinned down on any specific policy issue. And those elected officials could change their answer depending on the crowd they were addressing. Hence why the incumbency rate for the general assembly is nowhere near the rate for Congress.
Article III, Section 29 generally ensures that the People of Iowa can fairly trace the laws they live under to specific elected representatives who voted for or against said law or policy. The judiciary must fully enforce the remedy required upon the finding of a single-subject requirement so that the People can seek redress for laws they do not wish to live under at the next general election where they get to select their representatives.
It is for these injuries committed against the People that HF 2643 violated the single-subject requirement. It is now up to the judicial branch to fulfill its constitutional duty to be that vital check on government encroachment of individual rights by invalidating and enjoining actions taken in violation of the constitution. Burnett v. Smith, No. 22-1010, page 35 (Iowa May 5, 2023).
While I think the Iowa Supreme Court rightly concluded that HF 2643 violated both the single-subject and title requirements found in Art. III, sec. 29, the rest of the Court’s analysis into the circumstances surrounding enactment was an unnecessary intrusion into areas to which it is constitutionally prohibited.
Additionally, its disposition is not supported by its own precedent or sound constitutional principles. The Court is playing with fire by continuing to act more like the legislative branch than the judiciary. The branches must stay in their respective lanes, or the entire balance and equilibrium of power/authority is thrown off. And it is within that imbalance of power/authority where Iowans rights and liberties are most at risk.
The General Assembly will inevitably try to restore balance between itself and the other branches of government when it perceives an imbalance. That is rational, and frankly, it is what the Constitution demands. Even though it won’t accomplish their stated goals (and it is quite obviously not justified), the Senate and House Republicans not answering questions during floor debate is an example of such an attempt to rebalance the power.
But what if the General Assembly passes, and the governor signs, legislation titled “An Act correcting the Iowa Supreme Court’s ruling granting a temporary injunction in LS Power Midcontinent LLC v. Iowa, No. 21-0696 (dated March 24, 2023).” And this Act goes through the entire ruling and strikes through (deletes) the portions of the ruling it believes violates the Iowa Constitution, adds any language or conclusions regarding interpretation of the Iowa Constitution it believes are necessary to determine the outcome of the case, and then changes the grant of a temporary injunction to a denial of a temporary injunction.
What would the Court do in that circumstance? Would it give that duly enacted law the force of law as required by the Constitution? Would it hold that such an Act violates the separation of powers because only the Judicial Branch has jurisdiction in in civil and criminal matters? See Iowa Const. Art. V, Sec. 6.
If the Court does the latter, it would certainly be inviting questions as to why it is the only branch of government that gets to determine whether another branch is violating the separation of powers by invading the prerogative of another branch. The People retained the ability to reign in a judiciary that they believe is not acting in their best interests or is otherwise a threat to their rights and liberties via the judicial retention election process. See Iowa Const. Art. V, Sec. 17. But this check can only occur by the People every six to eight years. See Id.
That is why People gave the General Assembly the ability to check on the judicial branch in the short term if time is of the essence. See Iowa Const. Art. III, Sec. 19. But these checks are a check of last resort because of the disruption it would cause within the judicial branch, and consequently, the People. In Iowa’s entire history, the People’s check was only used in one election to not retain three judges on the Supreme Court after their ruling in Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). The General Assembly has never impeached an Iowa Supreme Court justice.
To be clear, I do not believe either check is necessary in light of the LS Power ruling.
As I explained above, it is completely unnecessary, a waste of time, and without constitutional support for the Court to get into anything occurring prior to enactment when analyzing a challenge under single-subject or title requirements. The Court does not publish its draft opinions/rulings, and does not allow the public to comment before it renders its opinions. Nor does it publish and make available online all of the various changes (amendments) it makes to its drafts before publishing its final opinion, or live stream or archive the internal deliberations amongst its members for the public to view anywhere via the internet.
The Constitution doesn’t require it to do any of these things. Just like the Constitution doesn’t require the General Assembly to do any of those things. But the General Assembly does all of those things (and more) voluntarily because it believes it is in the best interest of Iowans to have that information, so they can better participate in their democratic republic and the process of enacting laws they must live under.
The path back to balance between the branches is short and straight forward. The Court must unequivocally state that anything occurring prior to enactment is constitutionally irrelevant when legislation is challenged under Art. III, Sec. 29. The Court must state that they will not use any of the information voluntarily provided by the General Assembly as a means to invalidate the laws it passes, directly or indirectly.
The Court can continue to perform its check on the General Assembly envisioned by the explicit text of Art. III, Sec. 29 by determining single-subject and/or title violations based on the text that is within the four corners of the Act being challenged. If that occurs, the General Assembly can continue to voluntarily provide the tremendous amount of information and access to the legislative process without fear of their internal procedural matters or even their very words said on their chamber’s floor could later be used to invalidate laws that they vote to enact.
The constant push and pull between the power/authority between the three co-equal branches along the peripherals of what is ambiguous in the Constitution is the sign of a healthy and vibrant democracy.
“The common law belongs to the courts. [It] set the standards for liability and the defenses. Statutes are the legislature’s domain. They pass laws which have their own liability rules and defenses. Of course, the courts and the legislature interact. We interpret statutes, and the legislature can enact laws that modify the common law. But in general, the roles are clear.” Burnett v. Smith, No. 22-1010, page 33 (Iowa May 5, 2023).
If this tension is absent, it means the checks and balances between the branches have broken down. But when the minor push and pulls on the edges of constitutional law transform into the potential for usurpation of another branch’s functions and duties, that is a sign that something is out of balance. And when that occurs, the People must take note and pay attention. For they might have to play a role in ensuring their liberties are cherished and their rights are maintained.
While I agree that the members of the House and Senate are rightly angry that the Iowa Supreme Court passed judgment on the procedures used to enact HF 2643 when the Constitution forbids them from doing so, refusing to answer questions regarding legislative intent or the legislation generally is an overreaction that in no way is justified or supported by any rational reading of the Court’s ruling in LS Power.
The new policy of refusing to answer questions during floor debate is wholly undemocratic. Unless it is reversed in short-order, it will remove the notion that Iowa is a democratic republic for huge segments of the population. When you take away the ability for the People to seek redress for their grievances, as Iowans do through their elected representatives in both legislative chambers (including asking their representatives to seek clarity on an ambiguous provision that will impact their life and livelihood), the People will eventually stop viewing the laws passed by the General Assembly as legitimate and will eventually refuse to comply therewith. To quote a famous phrase commonly used during the American Revolution, “No Taxation without Representation”.
The Court gave the General Assembly time to either reenact or repeal the provisions which cause HF 2643 to violate the single-subject and/or title requirements. The legislature has done both in the past when violations of the single-subject requirement were found (or would have been found). It is a deliberate choice for the General Assembly to do neither. And if it chooses to do neither prior to a ruling on the merits by the District Court in LS Power, then it only has itself to blame for the result. And the People would rightly place their blame on the General Assembly for being (1) so reckless with the entire 2021 Fiscal Year budget, and (2) failing to remove the constitutional ambiguity when it had the opportunity and constitutional authority to do so.
ADDENDUM: THE COURT IS NOT EQUIPPED TO PASS JUDGMENT ON POLICY DECISIONS
I want to address a few points that are unrelated to the constitutional analysis underlying Article III, Section 29, but are relevant to the LS Power ruling.
Unsurprisingly, the section delving into the underlying merits of the ROFR policy and whether it is in the public’s interest is overly simplistic and a blatant violation of the separation of powers. It underscores why the Court must resist the temptation to dip its toes into matters the Constitution unambiguously and explicitly reserves for the political branches of government. This section reads as follows:
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. Ultimately, the ROFR will impose higher costs on Iowans. The data back this up: amicus Coalition of MISO Transmission Customers offers data collected from two recent bid-based projects that indicate competition reduces costs by fifteen percent compared to MISO’s estimates. As the Coalition summarizes, “Without competition, there are fewer checks and balances on cost estimates, and no pressures or incentives to curb project costs and prevent cost overruns.” LS Power at 34
The Court’s policy argument in favor of ROFR is solely an economical argument, and a very basic one at that. The Court ignores the cost-savings that can occur by not having to conduct a competitive bidding process for major infrastructure projects. Thereby creating additional opportunities to file lawsuits and slow down transmission projects even more.
This article is long enough, so I will briefly offer a few other policy perspectives the Court failed to consider. But, ‘“as it has been noted many times before, Congress, FERC, and the [state] legislature are “better-situated than the courts” to “determine the economic wisdom and the health and safety effects” of a decision on the correct balance between competition and a right of first refusal in the area of the building of electric transmission facilities.. The Court, therefore, properly defers to their judgment.”’ LSP Transmission Holdings v. Nancy Lang et al. 329 F. Supp. 3d 695, 708 (D. Minn. 2017) (quoting Allco Finance Limited v. Klee, 861 F.3d 82, 107 (2nd Cir. 2017)).
Most states in our region have ROFRs
Virtually every other state around Iowa that is a member of MISO or SPP has either enacted a ROFR for their incumbent utilities or is considering adopting a ROFR for their incumbent utilities. Iowa’s incumbents would be at a competitive disadvantage regionally and nationally without the Iowa General Assembly passing a ROFR.
Of the fifteen states within MISO (Arkansas, Illinois, Indiana, Iowa, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, North Dakota, South Dakota, Texas, and Wisconsin), ten have ROFRs enacted, and two are considering legislation to enact a ROFR this year. This fact alone calls into question the Court’s conclusions that ROFR is unpopular and will impose higher costs on Iowans.
States that have a ROFR on the books:
- Michigan – SB 103 (enacted 12/16/21)
- Montana – HB 297 (enacted 4/6/17)
- Nebraska – LB 388 (enacted 4/24/13)
- South Dakota – SB 132 (enacted 3/11/11)
- North Dakota – HB 1382 (enacted 4/9/15)
- Minnesota – SF 1815 (enacted 4/18/12)
- Texas – SB 1938 (enacted 5/16/19)
- Oklahoma – HB 1932 (enacted 5/29/13)
- Indiana – HB 1420 (enacted 5/1/23)
- Mississippi – SB 2341 (enacted 3/6/23)
Missouri and Kansas are currently considering the ROFR for their incumbents.
Iowa has long-established monopolies in this realm
Iowa has had a monopolistic (exclusive service territory) utility structure for electric distribution since 1979. See Iowa Code 476.25. The legislative policy/purpose for these exclusive territories is written right into the statute:
“It is declared to be in the public interest to encourage the development of coordinated statewide electric service at retail, to eliminate or avoid unnecessary duplication of electric utility facilities, and to promote economical, efficient, and adequate electric service to the public. In order to effect that public interest, the board may establish service areas within which specified electric utilities shall provide electric service to customers on an exclusive basis.”
Here is an interactive GIS map of Iowa’s current exclusive service territories.
The Iowa Utilities Board often grants transmission line companies the ability to use eminent domain.
See Iowa Code 478.6, subsection 3 (“When the board grants a franchise to any person, company, or corporation for the construction, erection, maintenance, and operation of transmission lines, wires, and cables or the transmission of electricity, such person, company, or corporation shall be vested with the power of condemnation to such extent as the board may approve and find necessary for public use”.)
Incumbents may have existing easements and/or relationships with landowners, which will reduce the likelihood of eminent domain being used.
National security concerns may be a factor.
Perhaps the members of the General Assembly voted for ROFR because of the national security concerns that can be alleviated by utilizing incumbents which have long-term relationships with the state. The alternative is to use a bidding process that potentially allows hostile and foreign actors to infiltrate one of the most important utilities in a modern society.
One clear national security threat to critical utility infrastructure occurs on the front end where foreign manufactured equipment is used in the construction of the particular infrastructure, including many components within a transmission system. In fact, just six weeks prior to the Iowa General Assembly passing the ROFR, President Donald Trump issued an executive order protecting our electric transmission system from equipment which is designed, developed, manufactured, or supplied by a person subject to the control of a foreign adversary and poses an unacceptable level of risk to U.S. national security.
The ROFR could have been a response to a federal order.
The General Assembly may have passed ROFR as a way to keep the status quo as it existed prior to FERC Order 1000 removing the federal right of first refusal.
In upholding Minnesota’s ROFR law when challenged under the Dormant Commerce Clause, the Eighth Circuit Court of Appeals found that “Minnesota enacted its ROFR law, in part, in response to the uncertainty produced by FERC’s Order 1000. Its goal was “to preserve the historically-proven status quo for the construction and maintenance of electric transmission lines.” LSP Transmission Holdings LLC v. Katie Sieben, et al, No. 18-2559, page 17 (8th Cir. March 25, 2020)(cert. denied March 1, 2021).
This goal is within the purview of a state’s legitimate interest in regulating the intrastate transmission of electric energy. See 16 U.S.C. § 824(b)(1). Id. at 18. Put differently, “unlike the regulation of natural gas, a field in which FERC has jurisdiction both over pricing and over the siting of interstate lines, the states retain authority over the location and construction of electrical transmission lines.” Id. (quoting Ill. Commerce Comm’n v. FERC, 721 F.3d 764, 773 (7th Cir. 2013)
However, the Fifth Circuit held that ROFRs facially discriminates in violation of the dormant commerce clause because limiting competition based on the existence or extent of a business’s local foothold is the protectionism that the Commerce Clause guards against. NextEra v. Lake, No. 20-50160, p. 30 (5th Circuit, Decided August 30, 2022) (citing Granholm, 544 U.S. at 466; Lewis, 447 U.S. at 42; Dean Milk, 340 U.S. at 352 (Application for Cert. pending, Docket No. 22-601)
The ROFR could be a reassertion of state control.
There may be some public interest in the State of Iowa having a little more control/jurisdiction over transmission line owners in light of the fact that Iowa loses more control over its electrical grid and grid reliability every year to MISO, SPP, and the federal government. That trend causes Iowa’s incumbent retail distribution and transmission electric utilities, and the state itself, to lose more and more control over the electric grid that exists exclusively within its borders.
For example, the Iowa Association of Rural Electrical Cooperatives responded to the IUB’s inquiry into transmission planning in a filing last year that the Central Iowa Power Cooperative (CIPCO), which serves nearly 300,000 residents in Iowa and over 13,000 small and large commercial accounts, by stating that “ITC Midwest is a transmission owning member of MISO, and through an Operations and Transmission Agreement with ITC Midwest, certain functions that ITC used to perform for CIPCO have been transferred to MISO, such as ultimate operational authority over transmission operations and outage scheduling. (Emphasis added)
One of the four long term strategic priorities of the Organization of MISO States (OMS) is to “Preserve retail jurisdiction from attempts to alter the current balance of local, regional, and federal authority and evaluate opportunities to better define the jurisdictional spheres when it would benefit electric customers”. The Iowa General Assembly passing the ROFR provision is one way in which Iowa can preserve its jurisdiction.
The practical impact of Iowa and its utilities being part of federally organized regional grids and losing control over electric transmission, and consequently distribution (whether Iowans will always have reliable electric service at all times) should have became apparent to every Iowan and every Iowa legislator after MISO warned its members in the summer of 2022 that “under typical demand and generation outages, MISO is projecting insufficient firm resources to cover summer peak forecasts.” Summer Readiness Workshop, Resource Adequacy (Summer 2022).
Even though there were ultimately no rolling blackouts in the summer of 2022, there still was a high likelihood that Iowa electric utilities would have been required to curtail Iowa customers because the regional grid did not have adequate generation capacity due to fossil fuel power plants being shut down prematurely.
The 88th General Assembly wouldn’t have had this report available to them in 2020, but it demonstrates why the legislature might prefer if its own incumbent transmission utilities to non-incumbent. The Iowa Utilities Board has been a member of the Organization of MISO States (OMS) since 2003, so the potential of rolling blackouts due to a regional supply shortage was something legislators could have factored into their decision to support the ROFR.
In Interstate Power and Light’s (Alliant’s) filing in the Iowa Utilities Board’s docket examining summer 2022 preparedness (INU-2022-0001), Alliant informed the IUB that Iowa, Minnesota, and Wisconsin have capacity that exceeds required reserves, while Illinois, Missouri, Indiana and Michigan do not. In fact, Iowa has generated more electricity each year than the state consumed. State Energy Profile – Profile Analysis (Iowa), U.S. Energy Information Administration (last updated July 21, 2022).
But due to Iowa’s transmission utilities being part of the MISO and Southern Power Pool (SPP) regional grid system, Iowa’s utilities would be required to comply with any load shedding order issued by MISO even though Illinois, Missouri, Indiana, and Michigan are the states without enough generation capacity to meet their state’s estimate demand.
Iowa cannot even guarantee its own residents and citizens have reliable electricity when we have generated more electricity than we consume for the past 15 years. The more transmission lines operated by non-incumbents within Iowa’s borders, the harder it becomes for Iowa to ever transition out of MISO or SPP, if it becomes necessary in the event other states in the region continuously fail to satisfy their obligations to their own citizens and those in which they share an electric grid.
The Iowa Utilities Board has even started to request information from Iowa’s incumbents regarding some of the problems and concerns it sees with the ever increasing use of single-purpose transmission lines solely transmitting electricity from renewable generation sources located in Iowa and connecting them to the regional grids operated by MISO and SPP. See generally Docket INU-2021-0001. The IUB summarized the concerns and questions they have as follows (IUB Order initiating investigation, requesting comments, and setting date for workshop, p. 3-4):
Recently, independent power producers and transmission owners have requested that the Board support long-range transmission planning and the proposed continued expansion of transmission within Iowa and across the MISO footprint. In addition, the Board understands that a generation mix that includes reliance on renewable energy without sufficient storage capacity requires additional transmission growth. However, generation in Iowa now exceeds the amount needed for Iowans. Iowa has become a net exporter of electric energy and the rewards of renewable energy have not led to lower energy costs. In fact, the loss of prime farmland and infringement upon landowner use and enjoyment of their land are factors that continue to be raised by local governments, landowners, and residents in Iowa. Iowa’s increased desire to reduce carbon and improve the types of generation that reduce carbon may require a different approach to transmission projects. As the Iowa energy plan recognizes, “new areas of wind . . . energy are being developed within the state, it is important to identify areas where existing transmission and distribution capacity is limited.” The executive summary makes clear that an objective of the Iowa Energy Plan is to “[e]ncourage the prudent . . . development of energy delivery infrastructure.” While generating utilities may have their own plans for how best to serve their customers’ needs, it is difficult to discern whether there is a statewide “overall plan.” Without a clear “overall plan” in place, the Board is left to assemble Iowa’s transmission grid piecemeal, as electric companies petition for franchises one line at a time. This is an unsustainable approach for building Iowa’s transmission grid of the future.
In past cases dealing with requests for a franchise for a proposed transmission line, the Board has taken a more limited view of what constituted an overall plan. In current cases, the Board has recognized that there is no overall plan for the state of Iowa and, with the number of projected renewable generating facilities and associated transmission lines, the Board considers it part of its statutory obligation to determine if a statewide plan is feasible and, if so, what a statewide plan should include. See Generally In re: Heartland Divide Wind II, LLC, Docket No. E-22432, “Order Approving Electric Transmission Line Franchise, Requiring Filings, and Granting Confidentiality,” p. 23-25 (June 29, 2021).
Although this information wouldn’t have been available to the 88th General Assembly, it is telling that FERC has proposed rulemaking that would re-instate the federal ROFR, but modified to require joint ownership of transmission facilities if the federal ROFR is exercised by an incumbent.
On April 21, 2022, the FERC issued proposed rulemaking which proposed “to amend Order No. 1000’s nonincumbent transmission developer reforms in part, so as to permit the exercise of federal rights of first refusal for transmission facilities selected in a regional transmission ownership plan for purposes of cost allocation, conditioned on the incumbent transmission provider with the federal right of first refusal for such regional transmission facilities establishing joint ownership of the transmission facilities consistent with the proposal below.” Building for the Future Through Electric Regional Transmission Planning and Cost Allocation and Generator Interconnection, Docket No. RM21-17-000, p. 275-276
FERC’s rationale for re-establishing the federal (conditional) ROFR (Building for the Future at p. 273-275):
Recent investment appears to be concentrated in transmission facilities not subject to Order No. 1000 competitive transmission development processes, which are often developed within individual incumbent transmission provider retail distribution service territories or footprints or address narrow regional transmission needs, as opposed to investment in regional transmission facilities selected in a regional transmission plan for purposes of cost allocation that serve a wider set of transmission needs and are subject to competitive transmission development processes.
Indeed, despite the fact that multiple industry studies estimate that regionally planned transmission expansion would yield numerous consumer benefits, transmission investment through the regional transmission planning and cost allocation processes has not necessarily increased since implementation of Order No. 1000; In fact, in some transmission planning regions, investment in regionally planned transmission has declined. The record here further indicates that regional transmission facilities subject to a competitive transmission development process represent only a small portion of total transmission investment in recent years across several transmission planning regions. This trend may be related to Order No. 1000’s nonincumbent transmission developer reforms.
While Order No. 1000 anticipated and generally sought to facilitate greater and more efficient or cost-effective investment in regional transmission facilities, some observers at the time expressed concern that Order No. 1000’s reforms “could ultimately discourage” existing “transmission owners from seeking regional cost allocation for their local projects,” and thereby unintentionally encourage “more local transmission projects” serving more local needs, even where broader regional transmission facilities may be more efficient or cost-effective.
Thus, given the investment trends observed since Order No. 1000’s implementation, it is possible that the Commission’s Order No. 1000 nonincumbent transmission developer reforms may in fact be inadvertently discouraging investment in and development of regional transmission facilities to some extent. Incumbent transmission providers, as a result of those reforms, may be presented with perverse investment incentives that do not adequately encourage those incumbent transmission providers to develop and advocate for transmission facilities that benefit more than just their own local retail distribution service territory or footprint.
If the question of whether the ROFR policy/language is in the best interest of the Iowa People was solely a question of economics, then I guess the Court has a rational basis for its conclusions. But policy issues the General Assembly considers are never solely based on one single factor. There are dozens, if not hundreds, of policy considerations legislators must weigh when they ultimately press the green (yea) or red (nay) button on their desks when voting on a bill’s final passage.
It is every individual legislator’s prerogative to decide which policy factors to give weight to, which ones to ignore (or become informed about), what policy concessions they are willing to live with in exchange for getting the underlying policy/bill across the finish line, whether to abstain from voting, whether to propose or not propose amendments prior to final passage, whether to request a division on large amendments to separate out specific portions for a standalone vote, whether to make comments during floor debate to try and convince others to vote yea or nay on legislation, etc…
The Court doesn’t have access to the vast majority of arguments for or against a given policy question. It is limited only to what the parties in the case present to it. The plaintiff in LS Power was an out-of-state transmission company that stood to lose out on the potential to grow their footprint in Iowa and thereby their revenue stream. LS Power only cared about economics. Therefore, it should surprise no one that the Court’s policy discussion was limited solely to the economic arguments.
The Court’s discussion of the policy considerations underlying that ROFR provision, regardless of whether it ultimately affected the outcome/disposition of the case, creates the appearance that the Judicial Branch is second-guessing the policy decisions of the elected branches or regulators. LS Power at 38. “[W]hat is desirable or advisable or ought to be is a question of policy, not a question of fact. What is necessary or what is in the best interest is not a fact and its determination by the judiciary is an exercise of legislative power.” State v. Robinson, 618 N.W. 2d 306, 322 (Iowa 2000) (quoting Warren County v. Judges of the Fifth Judicial Dist., 243 N.W.2d 894, 903 (Iowa 1976) (quotations and citation omitted)).
In my opinion, when the Court engages in policy discussions and opinions like it did in LS Power, it is undeniable that it has “broken the barrier between judging and legislating.” State v. Robinson, 328 N.W.2d 306, 323 (Iowa 2000) (Justice Snell, Dissenting). This is ill advised, contrary to established law and a hauntingly bad precedent.” Id.
THE INVISIBLE 10,000-POUND ELEPHANT IN THE ROOM
In League of United Latin American Citizens of Iowa v. Pate, No. 20-1249, the plaintiff’s challenged sections 123 and 124 of HF 2643, which made changes to identification requirements and prohibitions as they relate to absentee ballots. The Court described the case as “a challenge to section 124 of House File 2643 (HF 2643), passed by the legislature and signed into law in June 2020. 2020 Iowa Acts ch. 1121, § 124 (to be codified at Iowa Code § 53.2(4)(b) (2021)). Sections 123 and 124 of HS [sic] 2643 amended parts (a) and (b) of Iowa Code section 53.2(4) (2020). Id. §§ 123–124 (to be codified at Iowa Code § 53.2(4)(a)–(b) (2021))”. (Emphasis added). Id. at 4-5.
The Court, on an interlocutory appeal, ultimately upheld the denial of an injunction by the district court, finding that the absentee ballot changes in HF 2643 did not violate a persons’ fundamental right to vote, did not violate the equal protection clause in Iowa’s Constitution, nor did it violate procedural due process rights under the Iowa Constitution. Id. at 17-20.
The mere fact that these sections of HF 2643 were challenged as to their constitutionality means these sections dealt with substantive rights as opposed to one of the medley of appropriation provisions. See LS Power at 32 (“the bill contained a medley of appropriations provisions, e.g., 2020 Iowa Acts ch. 1121, § 4, corrective provisions, e.g., id. § 64 (codified at Iowa Code § 260C.48 (2021)), and grants of substantive rights, such as the ROFR, id. § 128 (codified at Iowa Code § 478.16 (2021))”). LULAC did not challenge sections 123 and 124 as violating the single-subject or title requirements found in Article III, Section 29.
For the purposes of this article, I do not explore how LS Power impacts the ongoing litigation surrounding the absentee ballot changes made within HF 2643. But there are two important questions that must be considered when determining its potential impact (questions I do not attempt to answer myself):
Could LULAC still challenge sections 123 & 124 as violating the single-subject and title requirement found in Article III, Section 29?
Would State v. Mabry, 460 N.W.2d 472 (Iowa 1990) be a barrier?
If a single subject or title violation is established prior to codification, are challenges to other sections within the same bill time-barred? (Especially single-subject violations, due to the remedy required by the Iowa Constitution upon a finding of a single-subject violation.)
Could it be raised in Smith et. al v. Iowa District Court for Polk County, 22-0401?
Would the result be the same as in LS Power?
If portions of an Act are not challenged under the title or single-subject requirements (LULAC v. Pate), but those portions were part of the same Act which was found to have violated the single-subject requirement in a separate lawsuit (LS Power), and the remedy normally required upon finding of a single-subject violation in that separate lawsuit would grant the remedy sought by the parties in a collateral constitutional challenge (void the entire HF 2643, and therefore sections 123 & 124), would the Court (or district court on first impression on the merits) take notice of that impact when deciding whether to apply the normal remedy (instead of the exception) if they conclusively find that HF 2643 violated the single-subject requirement?
Would they be compelled to apply the normal remedy instead of the exception?
FINAL NOTE: THE COURT’S MOST EGREGIOUS STATEMENT IN LS POWER
“The affidavits of legislators from both parties confirm the ROFR lacked the votes to become law as a standalone bill in 2020.” LS Power at 9
This is the by far the most egregious statement in the entire ruling. It does not require much explanation or context to demonstrate that the Court committed a serious breach of the separation of powers. Here are two brief points and the constitutional provisions they implicate.
The Constitution does not permit members of the Iowa House or Senate to vote yea or nay on legislation via an affidavit in a judicial branch tribunal.
Nor does the Constitution allow members of the Iowa House or Senate to vote on behalf of other members on a bill’s final passage:
Iowa Const. Art. III, Sec. 1 (General assembly. The legislative authority of this state shall be vested in a general assembly, which shall consist of a senate and house of representatives; and the style of every law shall be, “Be it enacted by the General Assembly of the State of Iowa.)
Iowa Const. Art. III, Sec. 8 (Quorum. A majority of each house shall constitute a quorum to transact business)
Iowa Const. Art. III, Sec. 9 (Authority of the houses. Each house shall sit upon its own adjournments, keep a journal of its proceedings, and publish the same; determine its rules of proceedings, punish members for disorderly behavior, and, with the consent of two thirds, expel a member, but not a second time for the same offense; and shall have all other powers necessary for a branch of the general assembly of a free and independent state.)
Iowa Const. Art. III, Sec. 15 (Bills. Bills may originate in either house, and may be amended, altered, or rejected by the other; and every bill having passed both houses, shall be signed by the speaker and president of their respective houses.)
Iowa Const. Art. III, Sec.17 (Passage of bills. No bill shall be passed unless by the assent of a majority of all the members elected to each branch of the general assembly, and the question upon the final passage shall be taken immediately upon its last reading, and the yeas and nays entered on the journal.)