Emory Melton was a square-headed Senator (a phrase he used to describe himself) from Cassville who served 24 years in the Missouri Senate before retiring in 1996. He always had two pieces of advice for rookie lawmakers: “Stay in your seats,” and “Read the bills.” Other senior members of the Senate sometimes dispensed similar advice. Senator Melton was known as one of the quiet-spoken sharper knives in a chamber of pretty sharp knives who never felt the measure of a Senator was how much the Senator said but WHAT the Senator said in the few times it was necessary to be heard.
The gulf between the era of Emory Melton and today’s Missouri legislature has become sharply obvious in last week’s discussion of House Bill 253, an amalgam of tax issues combined into one 177-page final bill in the last few days of the legislative session. Governor Nixon says an early review of the bill shows lawmakers repealed the state sales tax exemption on prescription drugs. Nixon says the result would be a $200 million tax increase for those who use those drugs. He didn’t come flat out and say he’s going to veto the bill, which has some things in it he wants. He says it’s still being evaluated.
Umbrage was quickly taken at the remarks of the Governor by the Senate sponsor of the bill and by two big business organizations that think HB253 is generally in the upper-OK range. It’s not the legislature’s fault that this error was approved by, well, the, uh, legislature, they say. Oh no. It’s the Nixon administration’s fault. The Nixon administration, they maintain, should have told the legislature that it was passing a bill with a big goof in it, a misplaced bracket that causes the entire problem.
It is fair to ask, however, how this could have happened with all of the opportunities for the mistake to have been caught by lawmakers as this bill percolated through the system. Those urging the governor to sign the bill anyway prefer to sidestep that question and point a finger of blame at someone else.
HB253 went to the Senate from the House on April 8 on a vote of 106-48. The Senate Ways and Means Committee held a hearing and recommended passage of the bill on May 2. The bill came up for debate on the 7th at which time Senator Kraus offered a Senate Substitute. The Senate approved it and sent the bill to its Government Accountability and Fiscal Oversight Committee. This committee has to bless any bill with a fiscal note beyond a certain level. The GAFO Committee sent Kraus’ Senate Substitute for HB 253 back to the the Senate which sent it to the House on May 8th, on a vote of 24-9 with the flawed language in it that one might think would have been spotted had any of the 34 members of the senate READ THE SUBSTITUTE BILL or at least the new provisions put into it. The House accepted the Senate amendments on May 9th and adopted the Senate Substitute 103-51 and then voted to Truly Agree and Finally Pass the bill by the same vote. Yes, the voting was partisan in both chambers.
This bill received “yes” votes from 127 legislators (24 in the Senate, 103 in the House) after various people should have READ THE BILL.
Somebody in the Governor’s office DID read the bill the other day, though. Oops.
And who is to blame for this situation. We all know, don’t we? The Nixon administration. Of course.
Associated Industries of Missouri (“The voice of Missouri Business,” it calls itself), quickly put out a statement from AIM President Ray McCarty who was described as “one of the main architects” of the bill. The statement quotes McCarty saying, “We take exception to the premise of the governor’s press statement which is that the General Assembly intentionally passed language to repeal the sales tax exemption for prescription drugs. The language in question is language that we understood came from the governor’s own Department of Revenue, which assured us on many occasions that the language was correct.” At the end, McCarty asserts, ““We hope the governor will not use a situation created by his Department of Revenue as a reason to veto this pro-taxpayer bill.”
McCarty also says, “We have the entire 2014 legislative session to fix this and any other problems that are sure to arise out of a couple hundred pages of legislative changes that were instituted by Governor Nixon’s Department of Revenue.” Oh, great. “Other problems,” he says, “are sure to arise” from this bill. One of the architects of this bill indicates there are other things that could have been caught if somebody would have read the bill.
Sen. Kraus joined the finger-pointing chorus with, “That exact language was recommended to me by the governor’s own Department of Revenue, and throughout the process officials at DOR assured me and others that the language was correct.”
Missouri Chamber of Commerce and Industry (“Our mission is …to protect and advance Missouri business”) lobbyist Tracy King called us wanting to talk about Governor Nixon’s statement. Those who heard our newscasts on this issue last week or who have read our story on Missourinet.com and listened to our full interview with her heard her say, “Legislators could not have known this was a problem unless they are told.” She also told us, “It is up to the administration to let them know before the bill passes and not after-pass if there is a problem with the bill, particularly since they drafted the language.” Additionally she told us, “Most of our legislators are not experts in every area of law that comes before them, and so they have to rely on the administration; they have to rely on the advocates who are out there, including the Missouri Chamber, to let them know if there’s anything that’s problematic.”
She also mentioned the language was on six bills. Six chances for SOMEBODY to read the language. But she seems to think that reading the bill is not the responsibility of legislators; instead it is up to somebody in another branch of government to read the language and tell the legislators that there’s a problem with a bill that is entirely under their control.
We have read the bill since this all came up, particularly the section the Department of Revenue endorsed for inclusion. We like to think that we have an intelligence level somewhere above that of a prune even though we are not experts on tax laws either. But the first time we saw what was bracketed out in section 19, the eyebrows went up. “Do they really intend to do this?”
One might wonder if any of those who voted on this issue had read the proposal supposedly offered by the DOR and had similar eyebrow reactions might have sought some answers before voting, “aye.” But the bill was sent to the governor with scarcely an eyebrow twitch.
One also might wonder if this is what the Missouri legislature in these term-limit days has come to? One might wonder about the idea that lawmakers should adopt an amendment if they are told it’s okay with that this or that interest or this or that agency without reading it and whether that is what the Founding Fathers meant when they created representative government. One might wonder whether somebody should read what they are given instead of accepting assurances it is just fine.
If you are the one who might wonder about such things, that is your business. If you are one who doesn’t think one should wonder about such things, that’s your business too. It’s a free country. But one might wonder if the Missouri legislature needs to rediscover its sense of wonder.
There is abundant finger-pointing about this. The governor says the legislature made a bad mistake. The legislature says the governor’s Department of Revenue made a bad mistake.
To the chagrin (or it should be to their chagrin) of those who quickly and vigorously pointed fingers at the Department of Revenue is information uncovered by our Capitol press corps colleague David Lieb of the Associated Press who reports the erroneous language did NOT originate with DOR after all. David, who is an expert at digging out stuff, has gotten email records showing that the Department of Revenue in January sent a draft of a bill changing state laws so Missouri could join the Streamlined Sales Tax Compact to Representative Andrew Koenig, a Winchester Republican. The proposal kept the sales tax exemption for prescription drugs. A few days later the legislative research office sent a “corrected” version of the measure back to the department. David says the revision from legislative research contained the faulty language. Although Koenig’s bill did not pass, that language was used in other bills.
So the bad language originated in the legislature not in the revenue department. All of this happened in late January. David says legislative research sent the language to the Department of Revenue on January 28. We calculate that means 101 days passed from the day legislative research sent the erroneous language back to the department until the bill was sent to the Governor on May 9th. Didn’t anybody read the bill during that time?
We talked a few days ago to a former mid-level manager in the department who remembered times when the agency submitted proposals to the legislature. This person remembered sitting down with other employees and meticulously reading the language in the proposal, line by line, to make sure it said exactly what they wanted it to say. So maybe this generation of department folks didn’t read their revised recommendation as carefully as they should have. But it is not the Department of Revenue that has the responsibility of passing accurate and properly drawn bills. The state constitution reserves that power, that right, that obligation, to the General Assembly.
It is worth noting before the rhetoric arises for a second round that supporters of HB253 seem to have a point that the part of the bill with the $200 million flub does not go into effect until January 1, 2015, giving the legislature the entire 2014 session to, in effect, correct the law before it becomes law. But the question arises of whether any governor in terms of philosophy, practicality, principle, or politics should have that much confidence in the General Assembly or, for that matter, whether any Governor—as a matter of the four P’s–should sign a bill containing such a mistake. If he vetoes it, all of the risk passes to the legislature in 2014 to approve a bill with corrected wording and provisions that Governor Nixon might indicate he would sign.
Imagine the political mischief that could brighten an election campaign or two to come with some claiming the Republicans in the legislature who profess to be great protectors of the taxpayer actually passed a $200 million dollar tax increase and others charging that Governor Nixon, defender of the common people, signed a $200 million tax hike for people who need to take prescription medications. There was a time before the era of campaigns dominated by politial inuendo and half-truths (and there is no such thing as a half-truth) when that would not be a consideration. But today, nothing is too sleazy.
In the end we are left with two pieces of wisdom passed on to us when we were much younger. We do not recall the wise person who told us that it is good to remember than when you point the finger of blame at someone else, three fingers are pointing back at you.
But we do recall who spoke the other the advice. It was Senator Emory Melton who gave it not to us but to later generations of legislators: “Read the bills.”
This mess is a textbook example of the enduring validity of those three important words.
***Editor’s note: A part of legislative folklore recounts that the legislature, during Sen. Melton’s tenure, inadvertently legalized rape. Our friend, King Marc Powers of Arcania, a small territory set aside in the Capitol, coincidentally researched that incident and recounted for us the specifics of those events:
“Lawmakers granted final passage to a bill, SB 156, that did NOT legalize rape. After the bill was truly agreed to, however, the Senate enrolling and engrossing staff made a mistake in putting together the “official” final bill that was sent to the governor. Their mistake, had it been a lawful act of the legislature, would have had the effect of repealing the rape law.
“Ashcroft signed the erroneous version and after catching the error asked Blunt, as secretary of state, to essentially send back the signed bad version and accept a signed version of bill the legislature actually approved. Blunt refused, saying his hands were tied.
“The Supreme Court said that since the Senate enrolling and engrossing staff have no authority to amend legislation, that version of SB 156 was no good. But because the mistake wasn’t caught until after the period for which Ashcroft had to act on bills had passed, neither was the version of the bill the legislature actually approved.
“So, the legislature never legalized rape. A few Senate staffers acting after the legislature had already gone home for the year did.”
We thank Marc of Arcania for his assitance. Perhaps the current screwup will not require the Missouri Supreme Court to straighten things out.