Why state lawmakers wait until the last minute to pass laws — hint: It’s politics

There was a lot of hall chatter, and more than a few tweets, during the Kansas Legislature’s wrap-up session that the House had voted on more than twice as many bills in those final five days as it had in the whole 68-day regular session.

I don’t know if that’s exactly true, but I have tried to cobble together some figures on the number of bills actually passed by the Legislature and sent to the governor this year, and the results lend some credence to that claim.

By my rough count, sifting through the journals of House and Senate, lawmakers did pass slightly more bills (66) during the wrap-up session than they did in the regular session (62). That’s a total of 127 bills for the entire 73-day session (by Senate President Susan Wagle’s count), or an average of about 1.7 bills per day.

But what really catches the eye is the number that went through on that final marathon day that started around 12:30 p.m. Sunday and lasted until 3:30 a.m. Monday: 18 bills in that one day, or more than one per hour.

Now, before getting too indignant about that, we should all probably admit that everybody procrastinates. In the news business, there’s a saying that if it weren’t for the last minute, nothing would ever get done. But many people have asked me why lawmakers always put everything off until the last minute, and the answer is actually fairly complicated. In the Legislature, procrastination isn’t just a matter of work habits. It’s also about strategy and leverage.

“That’s when the powers that be feel they have the most leverage,” said Sen. Tom Holland, D-Baldwin City, who has raised his voice in protest more than once about the slow and odd pace of the Legislature.

Granted, the first few weeks of a session have to be excused because that’s the time when eager lawmakers are trying to introduce new bills and, they hope, get them scheduled for committee hearings. That takes time. And even in even-numbered years like this one, when bills are allowed to carry over from the previous session, the House and Senate don’t just dive in to those leftover bills because most of them were abandoned the previous year for a reason.

What really drives the legislative calendar, and what makes the end of the session a whirlwind of activity that’s nearly impossible to follow, is the fact that every bill in the system can be, and often is, used as a bargaining chip for something else.

That’s why the vast majority of action that occurs in the wrap-up session involves conference committee reports in which several bills are bundled together. The practice known as the “gut-and-go” — whereby one bill is stripped of its contents and repackaged with the contents of two, three or sometimes even four other bills — used to be considered rare, and even a bit shady. Today, it has become standard procedure.

And so, even when bills have been through the committee process and are ready to be voted on, they can still be held back to be used as a bargaining chip later when it’s time to run conference committee reports. Even seemingly innocuous bills that are noncontroversial can get held back, under the theory that putting them into a package will make passage of less palatable bills a little easier.

Sometimes, though, even that doesn’t work. That was the case with the seemingly easy bill to name a bison herd in southeast Kansas after a recently deceased former legislator from that area. It ended up packaged with two bills that a lot of people had problems with: one let private zoos allow children to get up close and personal with dangerous animals like baby tigers and leopards; and another to authorize research into the production of industrial hemp.

Not surprisingly, a lot of senators had qualms about putting children into a tiger’s cage. And anything that smacks of legalizing marijuana, or even tilting in that direction, gives most Kansas lawmakers heartburn. But then when somebody changed the effective date of the bison herd-naming bill, angering even the people who most wanted to honor the late legislator, the entire package collapsed from its own weight.

But there was another dynamic this year that bogged the process down even more that has many lawmakers frustrated, and worried for the future if it continues. That was the utter reluctance for the last two years of House Speaker Ray Merrick, R-Stilwell, to allow any bill dealing with certain subjects to be fully debated and subject to amendments on the floor of the House because doing so would open them up to amendments that neither he nor Gov. Brownback wanted to deal with.

Specifically, Merrick has tried to avoid putting bills on the open floor dealing with health care and Medicaid, for fear of a Medicaid expansion bill. The same is true with taxes, for fear of an amendment to repeal all or part of the 2012 tax cuts.

Although the House did vote on, and eventually rejected, a bill to repeal the most controversial of those tax cuts, the total exemption for certain kinds of business income, it’s important to note how that bill came out of a conference committee, even though it had never been considered by either chamber before, and it was put into a Senate bill so that, under rules in the Legislature, the House would have to vote first.

Conference committee bills are not subject to amendment on the floor. They are always straight up or down votes.

In fact, of all the House bills that passed the Legislature this year, many, if not most, were actually Senate bills, the result of a gut-and-go maneuver in which the Senate put its bill into the shell of a House bill so that House members would only have the option of voting yes or no on the package as a whole.

Bills are also held back until the final days, not because anyone has designs about the contents of the bill, but because they need the bill number so it can be used as a vehicle to carry something else.

Perhaps the most glaring example of that was the final budget bill itself, Senate Bill 249, which actually began as a bill about purchasing and competitive bidding when it was introduced in February. After it passed the Senate, the House stripped out its contents and inserted a different bill dealing with the authority of state agencies to issue bonds.

The Senate did not go along with that change to its bill, and so it was sent to a conference committee where it became a vehicle for an entirely new bill, the final state budget, a bill that was never the subject of any committee hearings or public testimony — not even on the provision reallocating cuts to state universities — and could not be amended on the floor of either the House or Senate.

As the old saying goes, there are two things most people never want to watch being made: sausages and laws.