# Michael Breitbach



Article III, Section 29: Iowa Supreme Court, legislature both got it wrong

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.

INTRODUCTION

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:

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. 

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Republicans shatter another Iowa Senate norm

Iowa Senate debate on a proposal to relax child labor regulations stalled late in the evening of April 17, after the Republican floor manager Adrian Dickey and Majority Leader Jack Whitver refused to answer a Democratic senator’s questions about an amendment published earlier in the day.

After hours of delay, the Senate resumed its work and approved the child labor bill (Senate File 542) shortly before 5:00 am on April 18, with Republicans Charlie McClintock and Jeff Taylor joining all Democrats in opposition.

The snag in last night’s proceedings is not limited to one controversial issue.

According to Senate Minority Leader Zach Wahls, Whitver told him Senate Republicans would no longer answer questions during floor debate, in light of a recent Iowa Supreme Court decision. That ruling (known as LS Power) has also made Iowa House Republicans more cautious about answering questions in public, a debate on a firearms bill revealed last week.

The majority party’s new approach could leave Iowa lawmakers less informed as they vote on complex legislation. Floor debate may be the only time Democrats can clarify their understanding of certain provisions, since managers’ amendments containing big changes sometime appear just hours before a vote on final passage. Over the next few weeks, Senate Republicans are expected to unveil their spending plans for fiscal year 2024 right before lengthy budget bills are bought to the chamber floor.

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Why did these House Republicans reject an easy win for Iowa taxpayers?

State Auditor Rob Sand had “great news” to share with members of the Iowa House and Senate Appropriations Committees in May. Federal officials had agreed not to demand repayment for alleged overbilling, provided that Iowa changed its billing practices for future audits. The savings to the state would amount to tens of thousands of dollars for each fiscal year.

Documents Bleeding Heartland obtained through a public records request confirm that key Reynolds administration officials were on board with the reform plan, and Iowa Senate appropriators took it up in June as the legislature was completing its work.

The records also show that State Representatives Gary Mohr and John Landon refused to move the fix through the Iowa House.

What they don’t explain is why.

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Who's who in the Iowa Senate for 2020

The Iowa Senate convened for its 2020 session on January 13 with 32 Republicans and 18 Democrats. Eleven senators are women (six Democrats and five Republicans), up from six women in the chamber before the 2018 elections.

I enclose below details on the majority and minority leadership teams, along with all chairs, vice chairs, and members of standing Iowa Senate committees. Where relevant, I’ve mentioned changes since last year’s legislative session. A few committees have new Republican leaders. On the Democratic side, Eric Giddens now represents the Senate district where Jeff Danielson resigned last year.

A few words about demographics: all current state senators are white. To my knowledge, the only African American ever to serve in the Iowa Senate was Tom Mann, elected to two terms during the 1980s. No Latino has ever served in the Iowa legislature; in 2014, Nathan Blake fell 18 votes short of becoming the first. No Asian American has served in the Iowa Senate since Swati Dandekar resigned in 2011.

Some non-political trivia: the 50 Iowa senators include two Smiths (a Democrat and a Republican) and two Taylors (both Democrats). As for first names, there are three Marks, three Zachs, and two men each named Dan, Jim, Tim, and Tom.

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Bleeding Heartland's coverage of Iowa legislative races in 2019

I’ve always enjoyed writing about legislative happenings and campaigns, since my first year on the job as an analyst covering Russian domestic politics during a parliamentary election year.

While most political reporters were understandably assigned to follow the many presidential candidates visiting Iowa in 2019, I made it a priority to keep an eye on down-ballot races. The 2020 Iowa House and Senate elections may affect our daily lives more than whether Donald Trump or the Democratic nominee wins our state’s electoral votes. For one thing, breaking the GOP trifecta is the only way to guarantee that Iowa preserves nonpartisan redistricting for the coming decade.

I’m proud that Bleeding Heartland provided more in-depth coverage of potentially competitive state legislative races than any other Iowa news source this year. All of those stories are linked below.

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