Monday, January 07, 2019

DuBois column - Legislative legerdemain purposely excludes the public

Legislative legerdemain purposely excludes the public

It almost happened, but thanks to Senator Mike Lee (R-Utah), it didn’t.

In a move of legislative legerdemain, this time led by Republicans, our illustrious Congress tried to pass a 680 page federal lands package in the closing moments of this Congressional Session. To accomplish this they needed unanimous consent, and Senator Lee, along with Senator Rand Paul of Kentucky, objected. Not having unanimous consent, the federal lands package failed.

Now let’s step back and review how legislation is supposed to be passsed. A bill is introduced, let’s say in the House and is referred to a Committee, such as the Nature Resources Committee, which then assigns it to a Subcommittee, for our example we’ll use the Subcommittee on Federal Lands. The Subcommittee will hold at least one hearing, where the public is invited to testify, the language in the bill can be debated and Subcommittee members can offer amendments. The Subcommittee votes on the amended version, and if it passes, it moves on to the full Committee where once again the public is invited to testify, debate can occur and amendments may be offered by any member of the full Committee.  If the full Committee votes to pass the bill, it along with a full report on the bill is sent to the House floor. There more debate can occur and additional amendments can be offered by any member of the House. If the bill passes the House by majority vote, it is then referred to the Senate where the same process is repeated. Count those up and you see the public has three opportunities to comment on the bill. Add the three opportunities in the Senate and the public has six opportunities to influence the legislation.

Many times there are either minor or major differences between the Senate passed version and the version passed by the House. In those cases, a Conference Committee, made up of members from the House and Senate is appointed to iron out the differences. Usually hearings are not held, but members of the public are free to contact their Congressman to try to influence the Conference Committee. Once the Conference Committee reaches agreement on the contents of the bill, that new bill along with a full report must pass both Houses of Congress, where again debate and amendments can occur. If agreement on a final version is reached, it is then sent to the President for his or her signature. That process offers three more opportunities for the public to comment on the legislation. That makes a total of nine times individual members of the public have the opportunity to influence legislation that may impact them, their families or their businesses. This approach was designed by our Founding Fathers for the very purpose of including the public in the legislative process.

The federal lands package spoken of previously short-circuits this whole system and thereby cuts the public out of the process. The package threw together bills which had never passed either House of Congress, and in many instances had only passed one Committee in one of the Houses, and by doing so, gutted the public’s opportunities to influence the legislation. It was this process, thankfully, that Senator Lee had the fortitude to thwart by objecting to it in the Senate.

When I started this column, I could not tell you how it affected New Mexico, because I could not find a copy. Nothing was on the websites of either Senator Udall or Senator Heinrich, nor was there a copy on the websites of either the House or Senate Committees. I wasn’t the only one who experienced this problem. Read what Senator Lee had to say during the debate on the Senate floor:

“Mr. President, in reserving the right to object, we have a bill here that we received at 10 o'clock this morning, and it is 680 pages long. I have spent many hours reviewing it. This is a bill that came out of the committee on which I serve. I have been trying for many weeks, through the chairman of that committee and her staff, to get language or to at least get an outline of this. We were not able to get that until today at 10 a.m. Even after we got that, we asked for at least an outline of this bill or for a summary of the bill text from the committee staff, from the chairman's staff. They didn't respond to us. They wouldn't give it to us, just as they haven't for weeks. We got this--the closest thing to a summary--from a lobbyist. We had to wait to get it from a lobbyist.”

A United States Senator was denied copies of the bill until 10 a.m. on the day they were supposed to vote on it. He couldn’t even get a summary. He had to obtain the summary from a lobbyist. Now is that an open and transparent way to pass legislation? No, it is sneaky, behind the scenes deal making that totally excludes the public. Unfortunately, one of the biggest proponents of this federal lands package is NM Senator Martin Heinrich, and you are soon to find out why.

Caren Cowan was able to obtain a copy of the package and rushed it to me today.

So what does this bill do? It designates 130 million acres of new Wilderness and creates new
new national parks, wildlife refuges, wild and scenic rivers and national heritage areas. For New Mexico it designates ten new Wilderness areas in Dona Ana County and two new Wilderness areas in northern New Mexico. Twelve new Wilderness areas will be created by this subterfuge of the legislative process.

Why was it done this way? Here is Senator Lee again speaking from the floor of the Senate:

“I don't believe it was a coincidence that I wasn't informed of this. I don't believe it was a coincidence that even after this bill was released at 10 a.m. today, the staff of the committee refused even to give me an outline--an outline--of what was in the bill, even after they had filed it. We had to get this from a lobbyist. This is wrong. It is wrong that the State of Utah is treated the way it is.”

And I would add it is wrong for the people of New Mexico to be treated like this. It is also not a coincidence. Senator Heinrich knows he would have a hard time passing a stand alone bill that created so much Wilderness right next to our border with Mexico. His only chance was to get it thrown into a huge package where it wouldn’t receive close scrutiny.

Furthermore, the battle is apparently not over. Senators Murkowski and Heinrich are lobbying furiously to place the federal lands package in in the Continuing Resolution currently being debated in Congress to fund the government. By the time you read this, we will know whether they were successful in this last desperate attempt to exclude the public from their legislative endeavors.

Until next time, be a nuisance to the devil and don’t forget to check that cinch.

Frank DuBois was the NM Secretary of Agriculture from 1988 to 2003, is the author of a blog: The Westerner ( and is the founder of The DuBois Rodeo Scholarship and The DuBois Western Heritage Foundation

This column first appeared in the January editions of the NM Stockman and the Livestock Market Digest 


The negotiations are still ongoing, we still don't know for sure, but the public lands package has not been recently mentioned as part of the process 

Senator Heinrich considers these lands to be precious and worthy of protection, but he clearly doesn't feel the same towards New Mexicans who use these lands.

1 comment:

Tom Mobley said...

This illustrates why we are so fortunate to have Frank and Caren watching out for us. If you are a rancher and not a member of NMCGA, you are not doing your part to preserve our cattle industry.