Transparency missing in Arizona's legislature

'Stealth' budgeting and 'striker' bills eliminate public from the process

By

 Updated:

Arizona legislature Minority Leader Chad Campbell, right, (D-Phoenix) lowers his head as Rep. Steve Court, left, (R-Mesa) and Rep. Albert Hale, (D-St. Michaels) listen as budget amendments are brought to a vote for a new Arizona state budget in the House of Representatives at the Arizona Capitol in May 2012 in Phoenix.

Ross D. Franklin/AP

Arizona’s legislative session this year was as hard to track as a Stealth bomber, even for many Capitol regulars.

A bill focused on attorney’s fees turned into a controversial measure about abortion. Other bills changed subjects too. And the Legislature took just one morning of public testimony about the budget. The real wrangling over state spending was done in two months of private meetings between the governor and legislative leaders. But the details of the blueprint weren’t public until lawmakers were on the floor ready to vote.

Technology is in theory giving Arizonans unprecedented access to the Legislature, with documents posted online and meetings captured on video. But lawmakers are short-circuiting the public process, critics say, in two key areas: the budget and “strike-everything” amendments, which completely swap out the contents of a bill, often for something entirely different.

Critics say the "strikers" are the antithesis of transparency, making it harder for Arizonans to follow legislation and bypassing committee discussion. As for the state budget blueprint, more and more, the process of hashing it out has “gone underground,” said lobbyist Kevin DeMenna, a former Senate chief of staff for GOP leadership who has personally observed every legislative session since 1979.

The Legislature used to hold extensive hearings before writing a budget plan and then, after negotiating with the governor, wrap up the end product with committee hearings before taking a final vote. But that system has disappeared over the past decade.

The process was so stripped down this year that “the $8.6 billion budget passed with hardly any public comment at all,” said Tim Schmaltz, coordinator of Protecting Arizona’s Family Coalition. His sole chance to argue for reversing cuts in health care and other services was three minutes in an appropriations committee hearing.

A matter of process

The bare bones of budgeting are the same in Arizona as in most other states: The governor produces a budget proposal early in the year (Republican Gov. Jan Brewer released hers on Jan. 13), the Legislature works on its own budget, and eventually they must agree. In Arizona, Republicans control the governor’s office and both houses of the state legislature.

This year, GOP legislative leaders thought they could find common ground with Brewer quickly. When that failed, they decided to throw out a budget package as “an initial offer,” said House Appropriations Chairman John Kavanagh, a Fountain Hills Republican.

The budget bills were introduced on Presidents Day, a working day for legislators, but a holiday for many Arizonans.

The measures were scheduled for appropriations committee hearings at 8 a.m. the very next day.

Average Arizonans and small interest groups without a lobbyist parked at the Capitol in Phoenix complained that they were shut out.

The American Friends Service Committee would have mustered members to speak against proposals to expand and privatize prisons, but with the holiday, the short notice and a two-hour drive from its Tucson office, “there was no way for us to get there in time,” said Caroline Isaacs, program director.

By noon, the appropriations committees had both heard and approved the general appropriations bill and nine other budget measures, 204 pages of legislation in all.

The quick turnaround wasn’t significant, Kavanagh said, because the bills were intended as an opening move. “So anybody who came down to comment,” he said, “would not have been commenting on the actual budget.”

But as it turned out, this was the only public discussion until the budget was a done deal and on the verge of a final vote. And it was the only opportunity at all for public testimony. Kavanagh regrets that.

“We should have had a hearing prior to the final budget,” he said.

Initially, there was confusion over whether the Senate Appropriations Committee would allow any public testimony on the budget. Committee chairman Don Shooter created a flap when he declined to take public comment in an informational hearing with major agencies because “I heard it last year.”

People got the wrong impression, said Shooter, a first-term Yuma Republican who had just become committee chair and was still getting up to speed. He simply didn’t want to hear the same arguments “50 or 60 times,” he said. “You don’t have all the time in the world to listen to everyone’s opinion on the budget.”

He’s personally accessible, he added, and willing to meet individually with anyone.

But that didn’t change the fact that the real budget work was done behind closed doors as Gov. Brewer and GOP legislative leaders met to hash out the differences in their budget plans.

That’s not necessarily unusual, but lobbysts said this year’s negotiations, mostly held in the executive office tower, flew lower than ever below the radar. “You didn’t know if they were going on or when,” said Ken Strobeck, executive director of the League of Arizona Cities and Towns.

The secrecy and dearth of public input continued right up until the budget proposals were ready for floor votes. “It’s not a process that respects the public or the people they represent,” Strobeck said.

When one party holds an overwhelming two-thirds majority in both legislative chambers, as well as the governor’s seat, Strobeck said, “they don’t even need to act like they’re taking public testimony. They’re in power, and they get to make the decisions.”

Some legislators see it differently. To House Appropriations Chairman Kavanagh, the process was “probably as transparent as it can be.” The public had ample opportunity, he added, to contact legislators and the governor’s office, through email or by phone, before the budget was finished.

Both the governor’s proposal and Legislature’s budget bills were public, he said, and were just being tweaked. Negotiating “on an open stage” wasn’t realistic.

That said, Kavanagh himself is receptive to changes that would open up the process, including a mandated time-out between the release of a final budget and the definitive vote on that budget.

As it is, rank-and-file Republican lawmakers, some of whom ran on a pledge of transparency, complain that they were kept in the dark. Legislative leaders pulled them into briefing sessions a few at a time, avoiding a quorum that would trigger open-meeting requirements, and provided only select details.

“Imagine you’re going to go buy a horse,” said Republican Rep. Vic Williams of Tucson, a member of the House Appropriations Committee. “Someone gives you a photograph of the rear end and the hoof and the snout and they say, ‘What do you think? Do you want to buy the horse?’ That’s basically what they were doing with us on the budget.”

The Arizona Education Association, the state’s largest organization representing teachers, was frustrated by the lack of a public forum to talk about restoring money for supplies, building maintenance and 4,500 teaching positions lost to spending cuts.

“You have a legislative process built on closed door deals, obscurity, last-minute deals and not much overt connection to what Arizonans say are their priorities,” said AEA president Andrew Morrill.

The notion that legislators need to raise issues in private, because they don’t want the public to know, “is just insane to me,” said Byron Schlomach, an economist at the conservative Goldwater Institute. “That’s not our system of government. They don’t have that privilege.”

The Phoenix-based think tank hasn’t yet tackled the budget process in Arizona. But high on Schlomach’s list of recommendations would be a requirement for the public to see all written testimony and material submitted to legislators.

A rush to judgment?

The governor and Legislature announced the budget deal on Friday, April 27, and released broad spending figures by category. Legislative budget staff revealed highlights of the deal when they made presentations to party caucuses the following Monday.

But the actual legislative language and the nitty-gritty details didn’t come out until the budget went to the floor of both houses on Tuesday. The changes negotiated by the governor and legislators were introduced as floor amendments, full of cryptic references back to the original budget bill (“Page 5, line 9, strike ‘3,264,479,100’ insert ‘3,420,887,100’” or “Page 6, line 33, strike ‘may’ insert ‘shall’”).

The whole package was approved the same day. Even seasoned experts spent days afterwards trying to unravel the details of what was actually in the state’s new budget.

The budget bills include a host of legal and policy changes, and the secrecy around them “was worse this year than it’s ever been,” said Mike Gardner, a former GOP legislator and Senate chief of staff, who now lobbies for Triadvocates, a Phoenix-based public-affairs firm. His clients range from major corporations, including Intel, to the Tohono O’odham Nation, a southern Arizona Indian tribe.

Just before the floor vote, he learned that the budget package contained a tiny twist — a new negotiations deadline — that threatened future funding for the Tohono O’odham Community College, which mostly serves tribal residents.

Legislators themselves don’t have time to read through the budget before voting on it, Gardner said. Last year, he ran into a Republican lawmaker startled by a burst of angry calls from teachers. She had no idea that the budget she had approved the day before included a change in pension formulas that would cut their pay.

At the Arizona Housing Alliance, whose members range from banks to local governments, executive director Val Iverson was stunned when the budget deal was announced and the revenue plans included siphoning off $50 million from a mortgage settlement case. With the package racing through the Legislature, she had no chance to testify about what the funds could do in a state with one of the highest foreclosure rates in the nation.

“I was frustrated and I was disappointed,” she said, “in our system that doesn’t allow us to have input into the biggest decision our legislature makes, which is the budget.”

Some veteran advocacy groups and lobbyists have come to realize that most of their work will be behind the scenes rather than in public testimony.

“The university system has adapted to changes in the legislative budget process,” said Christine Thompson, a lobbyist for the Arizona Board of Regents. “Our strategy today consists of more one-on-one meetings with legislators to sell our budget priorities.”

But without formal meetings and testimony, said Sen. Ron Gould, vice chairman of the Senate Appropriations Committee, the public never gets to hear the arguments for and against spending decisions.

And lawmakers lose out, too, when they have little chance to go over agency operations and grill department heads. As a conservative, the Lake Havasu City Republican said, “I like to cut, but I want to make appropriate cuts.”

Gould has protested, without success, the lack of transparency at the Legislature.

Williams said he fought as much as he could “without incinerating myself politically” to get more time and deliberation into House appropriations. But real change requires group action, and there just aren’t enough legislators willing to take the risk.

On the other side of the aisle, Democratic Sen. David Lujan of Phoenix worries that “we’re starting to get to the point where the public doesn’t know any better, that there’s a better way of doing things, where you create the budget more out in the open.”

A tortured history

It wasn’t always like this. Through the 1990s, appropriations subcommittees looked at individual state agencies, held hearings and reported back budget recommendations.

Rep. Lela Alston, who returned to the Legislature in 2011, was on the appropriations committee when she served in the Senate from 1977 to 1995. “You knew it would be time-consuming, and it was,” the Phoenix Democrat recalled. “We took days to hear the DES [Department of Economy Security] budget, for example.”

Starting around 2003, that open process began disappearing. “It was this slow fade to black,” said lobbyist Gardner, who represented Tempe in the House from 1995 to 2001, until “they didn’t even try this year.”

He and others point to a cluster of reasons for the change. With term limits, legislators have to make their mark quickly and don’t want to invest time in committee work. Individual lawmakers don’t have to take heat for their positions when discussions are behind closed doors. More members have strong ideological stands on the budget and see less need for public input. Legislative leaders are leery of media coverage when hearings get testy.

Gardner sees tight budgets as an excuse from members who don’t want to listen to wailing over cuts. “They can stand the scrutiny,” he responded. “That’s why they ran for office, to make the tough decisions.”

Striking out

The legislative cloak of secrecy, critics say, extends beyond the budget. The amendment process has become a way to obscure what legislators are doing, especially through the use of “strike-everything” amendments.

This maneuver — gutting a bill and completely replacing its contents and subject matter — is a way to introduce new measures after the filing deadline, revive bills and circumvent committee chairs.

No measure is dead, even if defeated on the floor, until the Legislature has adjourned. Sen. Gould has called the phenomenon “whack a mole.”

Legislators introduced strike-everything amendments on 183 bills this year, sometimes more than one on a single piece of legislation. Sixty-seven of the bills signed by Gov. Brewer were strikers, a number that has been typical for the past decade.

Sandy Bahr, director of the Sierra Club’s Grand Canyon Chapter, combs through committee agendas, even those completely unrelated to the environmental issues she follows, to spot last-minute strikers. “If you’re an average person,” she said, “you wouldn’t even know where to look.”

A bill allowing companies to do their own environmental audits, which conservation groups opposed, stalled in the Senate Natural Resources and Transportation Committee. But then it popped up as a striker, replacing a tax-related bill, in the Border Security, Federalism and State Sovereignty Committee.

“There was nothing in that committee that has anything to do with this bill. The people on the committee have not seen the issue before or anything related to it,” Bahr said. The bill passed and was signed by the governor.

Controversial bills can move through the Legislature under the cover of anodyne measures.

Strikers were pivotal in the passage of three abortion bills this year. For proponents, they were valuable tools. For opponents, they were end runs around the public process.

Volunteers and staff members of Planned Parenthood lobbied hard against a House bill banning abortions of fetuses more than 20 weeks old, and it failed to get out of the health committee.

“We had a little time to celebrate a victory, but I knew it would be short lived,” said Michelle Steinberg, lobbyist for Planned Parenthood.

The Center for Arizona Policy, which was pushing for more restrictive abortion laws, and sympathetic conservative lawmakers found another vehicle.

Thanks to a strike-everything amendment, the 20-week ban resurfaced word-for-word under another bill number — a measure about attorney’s fees — that had already passed the House and was in the Senate Judiciary Committee. It passed in the Senate and then went back to the House for a concurrence vote, without having to go through committees, and was signed into law. The bill was upheld this week by a federal judge in Phoenix.

Two other abortion-related measures also passed as strikers and became law. “They are being used for legislative strategy from the beginning,” Steinberg said, “as a way to circumvent the process.”

However, the director of communications for the Republican-majority House, Rey Torres, says the striker process “has been a very commonly used legislative tool and has also proven indispensable in getting good bills through the Legislature.”

The Center for Arizona Policy declined to comment on strike-everything amendments. But on its website, the group chalks up the abortion bills among its major victories at the Legislature.

Other states have versions of strike-everything amendments, said Brenda Erickson, a senior research analyst at the National Conference of State Legislatures, but many require the new language to be germane to the original bill and may not allow a title change.

Arizona is at the loose end of the spectrum, where strikers can completely change the name and contents of a bill. This year, toll facilities turned into theme-park incentives. Judicial records became transportation.

Strike-everything amendments aren’t in and of themselves bad, said Mike Braun, executive director of the Arizona Legislative Council, which prepares bills and amendments during the session.

They can be productive, when a bill has had extensive changes: It’s a lot clearer to wipe the slate clean and replace the language. That would have made this year’s heavily amended budget bill easier to understand, he said.

Reforms over the past 15 years have put some restraints on strikers, such as prohibiting them as last-minute floor amendments, he said.  Proposed strikers are now listed separately on the Legislature’s website — and yet they’re so hard to track that the list was recently missing five strike-everything amendments that were signed into law by Gov. Brewer.

The use of strikers as standard operating procedure has set off alarm bells across the political landscape. Recent years have brought a surge of bills introduced as legal “technical corrections” — mostly intended as vessels for strikers. In the House alone, there were 135 this year, compared with 28 in 2000.

The Sierra Club’s Bahr said strikers give lawmakers a handy bill “just in case some hare-brained idea” occurs to them. For instance, she said, a technical correction on unemployment insurance morphed into an ideologically driven bill targeting the United Nations Rio Declaration on Environment and Development.

Newspapers have editorialized against the use of strikers — the Arizona Republic, the state’s largest paper, called for a complete ban in 2007 — and the bills that result from them. The Eastern Arizona Courier, which serves a cluster of small communities, called them a “legislative gimmick” this year. But even a decade ago, the process was so entrenched that The Daily Courier, which covers Yavapai County north of Phoenix, wrote that getting legislators to eliminate strikers would be like getting a drunk to give up booze or smokers to ditch cigarettes.

Forecast: Mostly cloudy

Concerns about transparency cut across partisan lines. Both Republicans and Democrats raise concerns about how strikers and the budget process are shutting out the public.

Arizona Town Hall, a nonprofit civic organization that convenes a cross-section of people to look at statewide issues, has called for reforms in the budget and strikers twice in the past two years.

In Arizona’s highly polarized political climate, there is surprising agreement on the potential solutions. Some of these changes require legal and constitutional changes, while others could be adopted by leadership:

  • Give the appropriations committees more time to review the budget, and revive subcommittees. “In the ’80s and ’90s, it was a much more open and deliberative process, with subcommittees at the appropriations level,” said Kevin McCarthy, president of the Arizona Tax Research Association. “You don’t see that now, and it’s not a good thing.”
  • Provide real opportunity for public testimony. This could be done, as in the past, in joint committee meetings where votes aren’t taken.
  • Raise the bar on strikers by requiring them to be germane to the original bill and go through full committee hearings in both houses.
  • Consider eliminating strike-everything amendments. Appropriations chairman Kavanagh, who would support a ban, points out that the Legislature has other tools to introduce legislation after the deadline or pry loose a bill that a committee chair is holding.
  • Require a 72-hour “cooling-off” period between the introduction of a final budget proposal and the vote.

The system, which seems to work effectively in Florida, is in the “State Budget Reform Toolkit” promoted by the conservative American Legislative Exchange Council. It would need to be a constitutional amendment, Kavanagh said, to keep lawmakers from tinkering with it.

Will anything happen? So far, no significant legislative bloc has picked up the banner on any of the reforms. Other politically charged issues, including the controversial immigration bill SB 1070, have upstaged worries about process. The current makeup of the Legislature reinforces the status quo: Democrats are too weak to have an impact and the Republican majority is large enough to ignore a few restive members.

Despite the Town Hall reports and repeated critical editorials in Arizona newspapers, the public outcry has been too short-lived to build momentum for change. Some say it will take a crisis, such as a budget clause or striker with massive unforeseen costs, to spur reforms.

The bedrock faith in government is at stake, according to David Berman, senior research fellow at the Morrison Institute for Public Policy at Arizona State University.

“It makes the government look less accountable and legitimate if they don’t listen,” he said. “People have to have some faith that everything going on is all right. If they don’t have any input into it, they won’t have any trust or confidence in it.”

Care about freedom of the press? Support independent investigative journalism.

Donate now
Donate now