Lawmaking has been famously compared to sausage making over the years, but there’s at least one big difference. Sausages are made in minutes; laws are made over months, or even years.
The rise of social media and the 24/7 news cycle, however, has spurred more fast-track legislation at the state level than ever before. States passed an average of 62 pieces of legislation per day from 2013-2014, according to data collected by CQ Roll Call’s StateTrack. By lawmaking standards, that’s a breakneck pace. Save time with dynamic reports and alerts
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And, when issues go viral, state lawmakers often respond with fast-track legislation. That presents unique challenges for those who monitor the legislative process from afar. There’s abbreviated public debate, less transparency, fewer amendments and less time to discern important details.
Anatomy of Fast-Track Legislation
There are many reasons for state houses to put bills on the fast track, but in recent months, issues going viral have been frequent drivers across the country.
There’s the story of an 87-year-old woman from Ohio whose landlord said she couldn’t fly an American flag from a rented house. The story went viral, and six months later the Ohio Legislature had approved HB 18, a measure that prohibits landlords from banning American and service flags at rental properties.
Then there’s the story of two gun laws that hit the fast track in Texas after a groundswell of public support. In January, a state official said there wasn’t enough support to advance bills that would end concealed carry permits and weapons bans at college campuses. After pro-gun advocates rallied with viral campaigns, however, that changed. By June, the Texas Legislature had approved both bills — a remarkable turn of events for bills that seemed dead just five months earlier.
Viral public reaction to issues isn’t the only catalyst of fast-track bills, either. The Idaho Telehealth Access Act (HB 189), for example, cleared the Idaho Legislature in exactly one month. The measure gives doctors more latitude to use video conferencing. It was introduced on Feb. 25 and was signed into law on March 25. In this example, pressing need was the apparent catalyst.
Fast-track bills pose a number of challenges, especially for those who keep tabs on multiple state houses. It’s hard to track the origin of specific provisions, to interpret the full impact of a bill and to “get in front” of an issue to shape the debate.
Those challenges recently surfaced when Congress considered a bill to resurrect fast-track approval of federal trade agreements, a legislative practice that ended in the early 1990s. The Trans Pacific Partnership, which was negotiated by the White House and Pacific Rim nations, sparked the initiative. It limits Congress to vote only yea or nay on trade agreements — and strips their ability to filibuster or amend them.
The federal fast-track bill is very different than state bills. The federal bill changes legislative rules for a specific type of bill — trade agreements — to expedite approval. Still, many concerns raised about the federal bill apply to the state level.
AFL-CIO, for example, argued that the fast-track bill would limit public debate, reduce transparency and make it difficult to introduce amendments. A group of Democratic lawmakers also spoke out against the measure.
“The only purpose that fast track serves is to force through trade agreements, negotiated in secret, that can’t survive in the light of day. Congress must not cede its authority and allow corporate interests to, once again, shortcut the democratic process,” U.S. Rep. Jerrold Nadler (D-N.Y.) said in a press conference.
Meanwhile, Congressional Management Foundation President and CEO Brad Fitch noted another challenge. This one stems from the source of some fast-track state bills: social media. Social media is viewed as a barometer for public opinion, Fitch said, but it’s difficult to tell when interactions come from outside interests, especially at the state level.
Keeping Pace in the Fast Lane
Transparency is a common challenge at levels of government, but that’s especially true of fast-track bills.
A recent poll by the Pew Research Center found that just 5% of respondents feel that state governments share data effectively. Each state has its own statutes on public access to state records, so openness and responsiveness are inconsistent across the country. Also, state open records laws are always changing.
In Montana, for example, there’s an effort underway to make destroying public records before they’re electronically copied a punishable offense. In Wisconsin, meanwhile, a controversial proposal to seal drafting files for state legislation and communications between lawmakers and constituents was recently shot down.
“I think we have a long way to go before we determine where the lines are between what is necessary monitoring of government activity and (what is) necessary protection of privacy rights of citizens,” Wisconsin Attorney General Brad Schimel said, via the Wisconsin State Journal.
For those who monitor state legislation, staying current on state open records laws is critical. After all, Otto von Bismarck’s famous quote, “Laws are like sausages, it is better not to see them being made,” isn’t an option for them.