Using the full complement of parliamentary motions and procedures available to them, members of the Legislature’s political minority have been able to prevent any bills from passing this year — at least to date.
The filibuster started by Omaha Sen. Machaela Cavanaugh in February seeks to delay or defeat a bill (LB574) from Omaha Sen. Kathleen Kauth that would prohibit anyone under the age of 19 from seeking puberty blockers, hormone therapy or gender-affirming surgery in Nebraska.
While Kauth’s bill advanced from the first round of consideration last week on a rough party-line vote — all 32 Republicans in the body voted for it, as did Democratic Sen. Mike McDonnell of Omaha — the legislative maneuvering used by opponents is likely to spur another lengthy debate Tuesday.
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In the final hours of the first round of debate over LB574, opponents used a series of bracket motions — a priority motion to postpone debate until a later specified date — to jump to the front of the speaking queue, effectively keeping supporters off the microphone.
Once each speaker’s time was exhausted, they would withdraw their motions before the next senator would file their own. The process was repeated until Kauth filed a cloture motion to shut off debate.
The next day, on Friday, Sen. Steve Erdman of Bayard, who called the tactic “very disrespectful to the senators who were in the queue,†filed a motion to suspend the rules of the Legislature in order to amend the permanent rules unanimously approved by senators in late January.
Erdman’s proposed change, which is scheduled first on Tuesday’s agenda, would limit senators to one motion to postpone debate over bills, to recommit a bill to committee, or to postpone a measure indefinitely per day on each of the three rounds of debate.
It’s similar to a rule change proposed by Speaker John Arch at the start of the 108th Legislature. Arch’s proposed change was not included in the package advanced by the Rules Committee, nor was it introduced on the floor during debate over the permanent rules.
But the move to suspend and change the rules after an emotional and frustrating debate for many has raised questions from observers who say it could further erode the nonpartisan unicameral system and cause senators to dig in further on their respective side of the political aisle.Â
Nathan Leach of Nonpartisan Nebraska, a nonprofit founded to promote the preservation of Nebraska’s unique political system and traditions, said Erdman’s proposal to change how and when motions can be used in itself isn’t concerning.
But, he added, the manner in which the chair of the Rules Committee is bringing it to the body was cause for concern.
“Why go through the trouble of taking a sledgehammer to the rules process when a simple nudge would do?†Leach asked.
Erdman’s motion seeks to suspend multiple rules for the remainder of this year’s legislative session, including a provision stipulating the procedure for suspending and amending the rules, as well as the process for how rules are typically adopted.
Leach said the method with which Erdman seeks to make a rules change would be akin to a corporate or nonprofit board suspending a rule that it couldn’t change its bylaws without notice in order to vote on a permanent bylaws amendment.
The prescribed length of the suspension — “for the remainder of the 108th Legislature, First Session†— is at odds with several legislative precedents dating back to at least the 1960s that have found any rules suspension “applies only to one day,†Leach said.
It also seeks to circumvent the existing process that has been used as recently as 2018, when rules proposed after the permanent rules have been adopted have been referred to the Rules Committee for a hearing.
“To fix this, Erdman either needs to limit his motion to one day (and then readopt it every day) or he needs to follow the regular process of introducing his amendment properly as a rules amendment,†Leach said. “The process isn’t cumbersome or challenging.â€
Arch, who as speaker sets the Legislature’s daily agenda, said he supports Erdman’s motion and its goal of striking “a balance between allowing opponents of a bill to express their views and a legislature to work efficiently.â€
Because a similar proposal got a public hearing before the Rules Committee in January, Arch said he doesn’t believe it needs to go before the committee for a second hearing again this year.Â
And, he said, it’s not unusual for the Legislature to consider a motion to suspend the rules in order to take up a specific action not specifically allowed by the rules, such as indefinitely postponing all legislation at the end of a legislative session.
“There’s been a number of examples in the past where it’s not just suspend the rules, but suspending them to accomplish something,†Arch said.
Clerk of the Legislature Brandon Metzler concurred with Arch, saying the Legislature routinely suspends its rules for various specific purposes, but said there was not any apparent precedent for introducing a floor motion to suspend the rules for this purpose.
“We’ve never done a rules suspension to change a rule,†Metzler said.
Debate on Erdman’s motion, which will need 30 votes to pass, will likely chew up several hours on Day 51, the first day in which the Legislature is scheduled to hold all-day debate.
Each senator will have three opportunities to speak for five minutes apiece. The motion to suspend the rules is not subject to amendments, and cannot be delayed, recommitted or divided.
Kevin Smith, the chair of political science at the University of Nebraska-Lincoln, said the effort to implement new rules in the middle of a legislative session reflects the increased political polarization of Nebraska’s officially nonpartisan Legislature.
Three to four years ago, Smith said the Cornhusker state’s unique political system “enjoyed an unusual degree of insulation†from what was being experienced in statehouses across the country, but has been chipped away little by little in each subsequent year.
At the start of the current legislative session, registered Democrats in the body accused their Republican colleagues of ignoring several precedents like seniority, incumbency and preference in how they assigned senators to legislative committees, prompting a lengthy floor fight.
Debate over a motion by Omaha Sen. Megan Hunt to kill LB574 was cut short last week after Sen. Julie Slama of Dunbar called the question after a handful of the nearly 40 senators who had signaled their intention to speak had had the opportunity.
Slama was later successful in overriding presiding officer Lt. Gov. Joe Kelly, who ruled her out of order, prompting warnings from opponents of the bill that a dangerous precedent had been set.
Then, opponents of LB574 were successful in blocking backers from speaking by introducing, pulling and reintroducing motions to postpone debate — tactics some Republican senators said abused the rules they will now seek to change.
Smith said it’s easy to understand the frustrations of senators in the majority who feel they have a mandate from voters to put their policies in place. Taking steps to do so without input from or some kind of concessions to the minority can leave many viewing the institution as illegitimate, he added.
“What we’re seeing now is, basically, it’s got to the point where legislators are having a hard time doing anything,†Smith said. “It’s very hard to put together a set of norms and institutional precedents that put up reasonable boundaries and set the rules for civil debate.
“It’s really easy to tear them apart, and once they’re gone, they are hard to put back together,†he said.Â
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