July 27, 2016 - Jefferson City, MO

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Missouri First believes the starting point in a legislator evaluation is determining their commitment to adhering to the Constitution they took an oath to support. Such an evaluation can be done in a very “quantitative” way that removes most, if not all, of the subjectivity (opinion) from the process.

Unfortunately, out the 194 representatives and senators currently in the Missouri General Assembly, only four produced scores that indicate a consistent commitment to the most basic of constitutional instructions about the legislative process.

 

CONSTITUTIONAL LIMITS ON LEGISLATIVE POWERS

Right after acknowledging God as the “Supreme Ruler of the Universe,” the Missouri Constitution explains “That all political power is vested in and derived from the people; that all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole”. (Art. I Sec. 1)

Later, the Constitution details the powers the People granted to their representatives in the House and Senate, including some very specific restrictions on their legislative authority. The restrictions are designed to ensure that the People can monitor the legislative process and hold their representatives accountable. These limits on the General Assembly's powers are essential to maintaining a constitutional republic and keeping the People truly in charge of the representatives making the laws under which the People must live.

Most notable among these limits are Article III, Sections 21, 23, 40(30) & 42.

• Art. III § 21 simply states, “ No law shall be passed except by bill, and no bill shall be so amended in its passage through either house as to change its original purpose.”

• The core of Art. III § 23 is, “ No bill shall contain more than one subject which shall be clearly expressed in its title...”

• Art. III § 40(30) & 42 deal with the passage of “local and special laws” that don't treat everyone equally.

 

EASY TO UNDERSTAND AND EASY TO COMPLY WITH

It's not easy to be a state legislator and balance the needs and desires of all of your constituents. And it's not easy to decide if what some people think is good in a given bill outweighs what others believe to be bad in the same bill.

What IS easy, however, is determining whether a bill includes more than one subject or that the purpose, as specified in the original title of the bill, has been altered. It is totally reasonable for constituents to expect their reps and senators to make that determination and only vote for bills that have adhered to the one original purpose of the bill.

After all, that is part of what they swore to do in their oaths of office, and may be the easiest to comply with.

 

THE CONSTITUTIONAL INTEGRITY SCORE CARD

Using a new and powerful database tool from LibertyTools, Missouri First has evaluated the votes cast on 21 separate bills while the bill was in violation of the above procedural limits imposed by the Constitution. There were 28 such votes in the House and 22 in the Senate. In each case, a vote for the bills was a vote against the Constitution.

The Luke 17:10 scoring method was used, so points were not given for doing what was plainly the right thing to do, but a point was taken away when a legislator cast an unconstitutional vote. That means a perfect score is a score of zero – that's when he or she did the right thing 100% of the time.

The percentage rating was not a comparison of legislator to legislator, but the percentage of the time they adhered to their oath of office on these particular bills.

 

AN EXAMPLE

The LibertyTools Bill Tracking and Score Card system was made available to Missouri First by its author for its debut use. The system makes it easy to both compile the data and report it online in a way that optimizes transparency. Users can see exactly which bills were used in the evaluation and links to the bills as well as House and Senate journal pages where the votes are officially recorded allows visitors to validate and drill down into the data.

For this score set, it also lets you easily see just how badly some of these bills violated the Constitution.

One example is Senate Bill 635. The bill's purpose, as stated in its title, was “relating to palliative care.” The bill passed the Senate true to its one original purpose, so regardless of the merits of the bill, itself, a “yes” vote was not held against the senators who supported it.

The House of Representatives, however, added multiple amendments that expanded (changed) the original purpose and then changed the title of the bill to align with that new broader purpose. The new broad and ambiguous purpose was “relating to health care.”

While it is true that all palliative care relates to health care, not all that relates to health care has any logical connection to palliative care. The House recognized that they changed the purpose, so they also felt compelled to change the title to match the new expanded purpose.

The final version of the bill, instead of adhering to the one original purpose of “palliative care”, included provisions dealing with, (1) investment of funds by municipal hospitals; (2) vaccinations; (3) dyslexia screening and support; (4) CPR curriculum; (5) EMT-P licensure testing; (6) alternative stroke center designations and collection of emergency care data; (7) medical helipad fences; (8) palliative care; (9) background checks for certain heath care providers; (10) administrative rules regulating the construction of hospitals; (11) certificates of need; (12) health care workforce data analysis; (13) the physical therapist compact; (14) the nurse licensure compact; (15) emergency supplies of medication; (16) pharmacy benefit managers; (17) insurance coverage for occupational therapy services; (18) prescription eye drops; and (19) the Legislative Task Force on Dyslexia.

It should be particularly noted that what matters, constitutionally, is whether each of these 19 subjects relate to the original purpose of “palliative care”, NOT whether they relate to the new purpose of “health care.”

Any representative or senator who voted for this bill after such changes were make lost a point.

 

WHY DOES THIS MATTER?

Missouri's landmark Supreme Court case from 1994 involving these matters is called Hammerschmidt v. Boone County, so changes to bills that violate these clauses are sometimes referred to as "Hammerschmidt violations."

In that opinion, the Court explained some of the reasons it is important to make legislators adhere to these limits on their power:

1. Together, these constitutional provisions serve "to facilitate orderly legislative procedure. By limiting each bill to a single subject [and requiring that amendments not change a bill's original purpose], the issues presented by each bill can be better grasped and more intelligently discussed."
   

2. A second purpose of article III, section 23, is to prevent "logrolling"—the practice of combining a number of unrelated amendments in a bill, none of which alone could command a majority, but which, taken together, combine the votes of a sufficient number of legislators having a vital interest in one portion of the amended bill to muster a majority for its entirety.
   

3. Third, the constitutional provision serves to defeat surprise within the legislative process. It prohibits a clever legislator from taking advantage of his or her unsuspecting colleagues by surreptitiously inserting unrelated amendments into the body of a pending bill.
   

4. Fourth, article III, section 23, is designed to assure that the people are fairly apprised, "through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered in order that they have [an] opportunity of being heard thereon...."
   

5. Because the governor may not employ a line item veto over legislation generally, the effect of the Constitution's single subject rule is to prevent the legislature from forcing the governor into a take-it-or-leave-it choice when a bill addresses one subject in an odious manner and another subject in a way the governor finds meritorious.

In summary, these constitutional procedural requirements are intended to curtail the mischief in the legislative process and keep the People in charge.

 

UNDERSTANDING THE CONSTITUTIONAL INTEGRITY SCORE CARD

If you look at the entire study, you'll notice that only four legislators out of 194 demonstrated a consistent pattern of voting against bills like SB 635.

The rest may or may not have been paying attention or cared when the purpose of a bill was changed or multiple subjects were added. Many of them may have voted against quite a few of the bad bills, but also voted FOR quite a few of them. The lack of consistency can rightly be interpreted as a lack of focus on the most basic of legislative questions --- does the General Assembly even have the authority to consider the bill in the first place?

Some of the legislators lacking that focus may have scored better (voted no more often) than other legislators lacking that focus, but only because they didn't agree with the merits of the bill or because the bill was sponsored by someone from the opposite party.

For those reasons, we are concluding that there are two basic groups – the four who consistently voted “no” on the multiple subject / changed purpose bills, and everyone else.

 

WHAT YOU CAN DO

This coming Tuesday, every representative who wants to return to the House will be on the ballot. About half of the senator will be, too. More than any other time of the year, they "care" about what you have to say -- so, please say it!

Those who win primaries will still care about what you have to say at least until the November general election.

Tell the four reps who where faithful to their oath that you have their back. And please ask the other 190 reps and senators what assurances they can give you that they will do better if the People choose to send them back to Jefferson City.

 

Victory in Court

Most of these unconstitutional bills are never challenged in court, but earlier this year, a Cole County judge ruled that a bill like those in the Constitutional Integrity Score Card was unconstitutional.

He thr the entire bill out, including the original portion.

See Calzone v. Koster