Supreme Court calls out legislative logrolling but leaves gaping loopholes

Last summer, the Iowa Supreme slammed the door on open government by brushing off inconvenient claims of legislative logrolling and late-night shenanigans.

The court’s conservative majority was so eager to overturn itself on abortion rights that it fashioned a convoluted justification for the unconstitutional process lawmakers used to pass a 24-hour waiting period for abortions.

This spring, the court addressed the issue again with a scathing ruling that overturned legislation passed on the very same night as the abortion bill, using similar unconstitutional methods.

In both cases, the justices focused on the effect on majority-party legislators and largely ignored Iowans’ right to know what is happening in their government.

In the most recent ruling, the court overturned a provision in a 2020 law that blocks potential competitors in the electric-transmission market from bidding against Iowa operators on any future projects. The unanimous opinion of the six-member panel in LS Power Midcontinent LLC v. State of Iowa, written by Justice Thomas Waterman, blasted the law as anticompetitive and “crony capitalism.”

No argument there, nor do I disagree with the court’s conclusion that lawmakers – in particular, the Iowa Senate Republicans – violated the provision in the Iowa Constitution that says each bill must address a single subject.

In this case, the justices found a clear case of “logrolling,” using this definition:

“Logrolling occurs when a provision unrelated to the core of a bill and not itself capable of obtaining majority support is tied to a popular bill having majority support. Logrolling also occurs when several matters, none of which individually has majority support, are joined in one bill and passage procured by combining the minority in favor of each into a majority willing to enact them all.”

I added the italics in the passage above because the issue of majority support is an important distinction from the Planned Parenthood case. We’ll get to that in a minute.

In the LS Power case, Senate Republicans inserted the electrical transmission language into a 50-page bill with about a dozen other previously unsuccessful provisions. Similar proposals on electrical transmission work had failed to pass the Legislature twice before. In 2020, the legislation never even passed a subcommittee, although the bill’s floor manager, then-Sen. Michael Breitbach, R-Strawberry Point, misrepresented that point on the Senate floor.

The amendment containing the transmission language was introduced at 1:33 a.m. on the final day of the 2020 legislative session and passed four hours later. This middle-of-the-night maneuver gave lawmakers and the public no warning the proposal was coming up and no time to review and understand what the bill would do. Iowans had no chance to contact their lawmakers about the proposal, even though the measure could, according to the court ruling, increase their electric bills.

Even Breitbach, the bill’s floor manager, clearly misrepresented the bill’s effect and legislative history during debate on the Senate floor. The most charitable reading of the transcript contained in the court ruling would be that he didn’t know what he was talking about. This is unfortunately not a rare occurrence in the Legislature.

And so the Supreme Court found that the Senate clearly violated the single-subject provision in the constitution and also failed to amend the bill title to more specifically identify its contents. All well and good, but the court then had to justify why, less than a year ago, it rejected a similar logrolling claim related to the 24-hour abortion notice requirement.

The abortion bill was also approved in the middle of the very same night after failing to reach the Senate floor through the normal committee process. It also was attached, with little warning, onto an unrelated bill, giving no opportunity for the public to respond or contact their legislators. The House speaker had even ruled the amendment was “non-germane” to the bill but the majority party voted to suspend the rule.

In the abortion case, justices rationalized that the original bill, a noncontroversial proposal dealing with the withdrawal of lifesaving procedures for minors, was close enough to the subject matter of the abortion bill to avoid peril under the single-subject rule. After all, both bills are about medical procedures, so what’s the big deal?

The majority of the court further stripped the public’s right to know by insisting it made a difference that the majority of the Legislature supported the bill. After all, the House had passed it earlier in the year. Never mind that the bill had failed to move through the normal committee process to reach the Senate floor – suggesting that perhaps some in the majority party weren’t too excited about it, or at least about the potential for public outcry.

The court cited two differences with the electrical bill: The measure had failed to pass in previous sessions and had failed to clear a subcommittee in the current session. There were affidavits from lawmakers saying they would not have supported the bill if it were a standalone measure. Also, as the plaintiffs in the case noted, “the subjects are so unrelated the only way to fit them within a single, common subject is to assert they are all ‘laws.’”

So the court, while correctly overturning this law, left enormous loopholes for logrolling. Essentially, lawmakers can continue to skirt the Iowa Constitution and play peek-a-boo with the public as long as the majority party would vote for the standalone bill and remembers to amend the bill title to adequately describe the measure.

Sometimes, public opposition is the difference between legislation passing and failing, regardless of how a majority of lawmakers would vote in public. By circumventing the legislative process, majority-party leaders can compress the time needed to pass a bill. That way, they can avoid much of the public pressure that can eat up the clock and perhaps persuade some majority-party members to change their votes. We’ve already seen that approach this year with the governor’s private-school scholarship bill.

The court continues to be focused on whether lawmakers support these bills rather than making sure Iowans have an opportunity to know what is being debated and to voice their opinion to lawmakers.

That’s a disappointing message as lawmakers enter the final weeks of the legislative session, when there’s extra incentive to circumvent legislative procedures. Who knows what they’ll end up passing in the middle of the night this year?