Did Lt. Governor just open Pandora's box on conference committee reports?

OLYMPIA–A lot happened in the final hours of session. One thing that may have gone under the radar was a ruling by Lt. Governor Denny Heck that creates the potential for significant anti-transparent legislative games to be played in conference committee reports in the waning days of session.

Conference Committee reports are what happens when the House and Senate can’t agree on a bill and form a committee to work out the differences. Though this is supposed to be a public process, the fact is the majority party usually works out the final bill text details behind closed doors before calling the conference and then the details magically appear and are voted on quickly during the public report before being sent back to the House and Senate for final approval. Conference committee reports can’t be amended on the floor–they are straight up or down votes with no floor changes allowed (see Rules 15-17).

Because of these restrictions on conference committee reports, the legislative rules about scope and object of a bill are very important to prohibit logrolling (adding unrelated items) and to make sure there aren’t surprises added to a conference report that the public would not expect to be part of the negotiations. This is why when an objection was raised to the conference report for HB 1099 for cutting and pasting sections from a failed 2021 bill (HB 1157) that had not received any legislative review or public hearing in 2022, it looked like a sure thing the Lt. Governor would agree with the objection.

Here is how the Center Square describes the HB 1099 conference report objection raised on the Senate floor:

“The Thursday evening ruling by Heck, acting in his capacity as president of the Senate, came as the result of an objection by Sen. Shelly Short, R-Addy, based on Senate Rule 66 prohibiting any amendment from changing the scope and object of a bill.

‘Sections 15 through 17 introduce tax policy into the bill for the very first time,’ she explained, referring to text related to taxing authority for local governments.

Short went on to say, ‘But tax incentives related in this particular bill had never been introduced until the process that we have before us. And it does not fall within the scope of the bill. Remember, Mr. President, this is a bill about planning, not a bill about tax policy.’

Tax policy, she noted, is about implementation.

‘So, the tax policy language that originated is from House Bill 1157, Mr. President, which did not continue through the process,’ Short concluded. ‘Therefore, I believe – and it’s my argument to you, Mr. President – that the amendment broadens the scope of the bill and changes its objectives, a maneuver that our rules and our constitution forbid.’”

Before issuing his formal ruling rejecting Sen. Short’s scope objection and allowing the HB 1099 conference committee report to be voted on, the clearly uncomfortable Lt. Governor said:

“We now return to conference committee reports. Pending was the point of order regarding engrossed second substitute House Bill 1099.

The president would like to preface his ruling by making the following observation. In the 14 months that the president has been privileged to stand here and occasionally vote upon these matters, it has been the experience that no matter how complex or nuanced the matters before us were, that after the fact there was a considerable conviction and confidence that the conclusion was based on very solid ground. In other words, I feel good about everyone. I’ll tell you right now I don’t feel good about this one. Fact of the matter is this is a very, very difficult issue.

It was flagged in the sense that the point of order was raised over the inclusion of sections 15 through 17 which I believe are verbatim language from another bill. Never a good sign. President earlier today reminded members that writing overly prescriptive titles is something that can lead to a thwarting of this process. So too can the effort to keep a measure alive by picking it up and tacking it onto another bill thus creating the prospect for considerable friction and conflict with the scope and object.

This is not a clear case.”

Senate Minority Leader John Braun told me this about the Lt. Governor’s surprise ruling:

“We know our Democratic colleagues will try legislating from the bench – their game plan for the capital-gains income tax is proof of that. What happened with HB 1099 raises the question of whether the Democrats also would try to legislate from the rostrum of a legislative chamber. Did they anticipate that their Frankenbill would bring a challenge, and bank on getting a favorable ruling because they thought the content would appeal to the Senate president? I accept his lengthy explanation that he felt less confident about this ruling, but you notice he still managed to rule in favor of the majority.

One of the policies grafted onto 1099 by the conference committee involved tax incentives, so going forward, it would be interesting to see whether Republicans can insert tax incentives into other bills and have them survive Democratic challenges. It might be worth trying, especially if the next Legislature has a different look to it.”

In another surprise, despite some House members clearly expecting to vote on HB 1099 after Senate approval, House majority leaders never brought the conference report to the floor before Sine Die. Despite the bill’s failure, the dangerous precedent from the Lt. Governor’s ruling stands apparently creating a new way to logroll items from failed bills or adding new concepts into conference committee reports on the session’s last day.

This entire process proves yet again why no bill (even ones from prior years) is truly dead until Sine Die. With the Lt. Governor’s ruling on HB 1099 allowing text to be cut and pasted from another bill, I fear Pandora’s box for anti-transparent conference committee report games to be played is now wide-open.

-Mercier is Center for Government Reform with the Washington Policy Center at the Tri-Cities branch.