Pact with the Devil? Faust on Second Reading? What follows is hardly that drastic, but members of the Colorado legislature often have to wrestle with whether the end justifies the means.
This column isn't about compromise where Legislator A wants 100 percent, the opposition wants zero, and they compromise at 50 percent of A's original goal. That happens every legislative day.
But what if the opposition is willing to give Legislator A his or her 100 percent, in return for 100 percent of what the opposition wants? Then it becomes "vote trading", an illegal act and as recently as 1985 the subject of a legislative investigation by the state Attorney General.
Vote trading usually occurs when votes on one bill are "traded" for votes on another bill. But what if the problem is an amendment added to your bill which is totally repugnant to your beliefs but will likely attract enough votes to pass your bill?
Legislators often persuade themselves by imagining the best outcome possible: "The other legislative body (House or Senate) will remove the offensive language," or "as chief sponsor, I'll be on the conference committee and I can persuade the other committee members to wipe out the rotten stuff."
Term limits also add to the loss of will power. It could take a number of years to persuade other legislators to vote for your bill and if you are in your final term, you no longer have the luxury of time.
The hardiest of legislators, when their bill is badly amended on second reading, will, on third reading ask that the bill be sent back to committee. Unfortunately, that is becoming rare. Too many legislators get wrapped up in getting a bill passed "at any price." A pro-tenant bill becomes an anti-tenant bill; a measure to reduce enterprise zones becomes a measure to protect enterprise zones.
Every legislator thinks he or she is the only one who has had this experience and many believe what happened is too uncomfortable to share with others.
But there isn't a single legislator past or present, including myself, who hasn't once thought "I'll take what I can get this time, and I'll come back and get rid of the bad stuff they have tacked on."
And you know what? It doesn't happen.
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What brought about the contemplation above was a Nov. 8th article in the Wall Street Journal. The article discussed a new law that lets insurance companies, banks, and investment firms deal in similar transactions. An amendment to the bill by Rep. Diana DeGette forbade insurers from discriminating against domestic violence victims.
According to the Journal, House Commerce Committee Chairman Thomas Bliley, R-Va., attached a provision to the DeGette amendment to allow mutual insurance companies to move from their home states, even if the home state's laws forbade such relocation.
There are "22 states that allow an insurance company to convert from a mutual company owned 100 percent by policyholders to an insurance mutual holding company" states the Journal. Once the company is moved to such a state, "mutual holding company executives can sell as much as half of their companies to outside investors without giving policy holders anything," according to the Journal.
The Journal quotes one opponent as "estimating policy holders nationwide would be at risk of losing more than $50.8 billion..."
According to sources in the DeGette office, what happened was the opposite of the Journal's claim. DeGette first tried to get her amendment adopted by voice vote and was procedurally unable to. Bliley's amendment was adopted and then Bliley added the DeGette amendment to his amendment.
Before President Clinton signed the bill, he was aware of the problem with the Bliley amendment. But he chose to concentrate on other priorities for revision in the compromise bill that was negotiated. According to the Journal, (in what looks like a sop), Treasury Secretary Lawrence Summers in letters to congressional leaders threatened to seek separate legislation to overturn the Bliley amendment "if necessary".
Would such separate legislation succeed? There are two states, New York and New Jersey where major mutual insurance companies are headquartered. They have four U.S. senators. There are 22 states that stand to gain new mutual insurance company headquarters under the Bliley amendment. They have 44 U.S. senators.
My cynical guess is that Summers won't succeed.
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The legislative Office of Legal Services has produced a nine page memorandum opinion opposing my position in Statesman columns regarding the meaning of the five limit law for new occupational regulation. The memorandum was released Aug. 3rd, but I never read it until recently. John Sanko of the Denver Rocky Mountain News stated this was the first newspaper column he had ever seen be the subject of a memorandum opinion.
Author of the report was Bart Miller who I think treated me kindly. Bart and I go back a long ways. During my legislative career I was always on the lookout for articles about deceased legislators, so that they could be honored with a House-Senate Memorial. Bart was my memorial writer.
I think the gist of the Legal Services memorandum and my columns on the subject is that we agree there is ambiguity in the statute and we disagree as to what the courts will do once the issue is before them. In every lawsuit, there are two contrary sides and we can only argue for a particular outcome.
Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.
Copyright 2015 Jerry Kopel & David Kopel