Commentary

Frankenstein legislation and midnight shell games thrive under Iowa Supreme Court

June 27, 2022 8:00 am

The Iowa Supreme Court shrugged off what a lower-court judge called "tricks" and "mischiefs" in the legislative process. (Photo by Katie Akin/Iowa Capital Dispatch)

Iowans’ ability to stay informed about what’s happening in the state Legislature took another body blow recently – and lawmakers aren’t even in session.

The latest smackdown on open government came in the Iowa Supreme Court’s recent ruling that also eliminated the right to abortion in the state constitution. Most people, understandably, overlooked the part of the ruling dealing with legislative procedure – specifically the constitutional requirement that bills being debated in the Legislature address a single subject.

Senate Majority Leader Jack Whitver, however, didn’t miss it.

“Today was also a victory for the separation of powers. The Supreme Court’s decision on single subject strengthened the legislature’s independence and constitutionally protected powers to write the laws of this state,” Whitver, R-Ankeny, said in a statement issued after the June 17 ruling.

The U.S. Supreme Court’s decision to overturn federal abortion protections in Friday’s ruling means the GOP-controlled Legislature will be back before long with plans to outlaw most or all abortions in Iowa. The only question as of Friday was whether they would wait until the next regulation session in January or return sooner for a special legislative session.

The Iowa Supreme Court’s ruling made it clear, whenever it happens, the majority party will not have to be constrained even by constitutional provisions designed to protect the public’s right to participate in their government.

Here’s a little background:

Iowa’s constitution prohibits a practice known as “logrolling,” or attaching unrelated legislation to bills during floor debate. In the final hours of the 2020 legislative session, Republican lawmakers rewrote a noncontroversial bill about withdrawal of lifesaving procedures for minors. In the early-morning hours of Sunday, June 14, lawmakers approved an amendment to House File 594 imposing a 24-hour waiting period and other requirements for patients seeking an abortion.

The House had to suspend its own rules to consider the amendment because the speaker correctly ruled the subject matter was not “germane” or relevant to the original bill. The majority party can suspend legislative rules with a majority vote. They should not, however, be able to suspend the constitution.

The timing and manner of advancing the abortion proposal was significant because it gave little or no warning to the public that the legislation was being debated. There was no subcommittee debate that would have allowed members of the public to comment, no opportunity for any lawmaker to request a public hearing and no chance for Iowans to contact their representatives or senators.

Such tactics also tend to obscure lawmakers’ legislative records. Lawmakers might support the original bill only to face a completely different piece of legislation when it returns from the opposite chamber. Candidates are at a disadvantage if they have to explain to constituents why they voted yes and then no on a bill.

Planned Parenthood of the Heartland challenged the abortion law in court. About a year ago, the district judge who struck down Iowa’s 24-hour waiting period for abortion cited as one of several grounds the “tricks” and “mischiefs” lawmakers used to pass the bill.

“[T]he circumstances surrounding the passage of the Amendment in this case, as set forth in the limited record available to the Court at this stage of litigation, appear to show that the Amendment was passed under highly unusual circumstances, including the speed at which the Amendment was passed,” District Judge Mitchell Turner wrote. “Abortion is, under any analysis, a polarizing and highly controversial topic, yet the Amendment was passed with limited to no debate, and without Iowans being given a chance to respond to the Amendment.”

Last week, the Iowa Supreme Court brushed off those concerns. “On the single-subject rule, we conclude that a limit on abortion and a limit on withdrawing life-sustaining procedures both pertain to the subject of ‘medical procedures,’ as stated in the bill’s title. Therefore, no violation of the single-subject rule took place,” the majority opinion written by Judge Edward Mansfield states.

So, lawmakers could presumably join bills about animal husbandry and child care, since both deal with the tending of living beings. Hey, we’re all mammals, right?

But the court didn’t stop there. The ruling goes on to embrace a broader interpretation of the single-subject rule. Under the definition cited in Mansfield’s ruling, it doesn’t count as unconstitutional “logrolling” if the members of the majority party would have supported the unrelated provisions in separate bills.

But that’s not why lawmakers generally combine unrelated bills – they do it to revive bills previously killed during the regular legislative process or to directly circumvent public outcry. There have been a number of other recent attempts at ramming through Frankenstein legislation from pieces and parts of other bills. One of most infamous efforts in recent memory was the legalization of mourning dove hunting just over a decade ago.

The court suggests that merely conforming a bill’s title to its text remedies the issue of “surprise” to lawmakers or the public that comes from legislative shell games in the middle of the night. But the majority opinion then shrugs off public notice and participation altogether: “Our constitution does not prohibit the legislature from burning the midnight oil or passing significant legislation with relatively little public debate, as they often do at the end of a legislative session.”

Justice Brent Appel, the only justice to fully dissent with the abortion ruling, “reluctantly” agreed with the majority on the single-subject rule. He did so with a cautionary quote from a case in Minnesota: “… the flouting of single subject provisions is a ‘worm that was merely vexatious in the 19th century [but] has become a monster eating the constitution in the 20th.’”

This monster thrives on unchecked power and public apathy. Iowa’s GOP-appointed court has just fed this beast a great big helping of the former. It will be up to Iowans to decide whether they’re willing to keep letting it gobble up their rights as citizens.

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Kathie Obradovich
Kathie Obradovich

Editor Kathie Obradovich has been covering Iowa government and politics for more than 30 years, most recently as political columnist and opinion editor for the Des Moines Register. She previously covered the Iowa Statehouse for 10 years for newspapers in Davenport, Waterloo, Sioux City, Mason City and Muscatine. She is a leading voice on Iowa politics and makes regular appearances on state, national and international news programs. She has led national-award-winning coverage of the Iowa Caucuses and the Register’s Iowa Poll.

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