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Al Cross: In a sneaky way, the secretive, short-circuited legislature makes itself more secret

For years, the Kentucky General Assembly has been sliding down the slippery slope of secrecy, into a hole that shields it from public scrutiny. Last week, 71 members of the state House doubled down on darkness, and expanded it – to make just about every other part of government in Kentucky less transparent.

In one of the more ironic but emblematic moves I’ve seen in more than 40 years of watching our legislature closely, the House passed a bill to reduce government openness in a manner that was far from open.

They started with a bill that bore the bland title “An act relating to financial institutions,” supposedly to remove three gender-specific references in banking law. It was one page plus one line.

Al Cross (Twitter @ruralj) is a professor in the University of Kentucky School of Journalism and Media and director of its Institute for Rural Journalism and Community Issues. His opinions are his own, not UK’s. He was the longest-serving political writer for the Louisville Courier Journal (1989-2004) and national president of the Society of Professional Journalists in 2001-02. He joined the Kentucky Journalism Hall of Fame in 2010.

NKyTribune and KyForward are the anchor home for Al Cross’ column. We offer it to other publications throughout the Commonwealth, with appropriate attribution.

In committee, they replaced the original language with 23 pages to make big changes in the state Open Records Act: giving legislators final say on what legislative records are public, limiting records requests to Kentucky residents, giving public agencies more time to respond to requests, and making other changes.

The very next day, before much word got out, they took the new House Bill 312 to the floor and passed it on a party-line vote, showing it was a priority for leaders of the House’s Republican majority.

Now the bill is in the Senate State and Local Government Committee, and apparently greased for passage into law. It’s become the way business is often done in the legislature: Hide your cards and play them quickly, to limit debate, political risk and public scrutiny.

In many cases, the General Assembly has abandoned the traditional process that long served the legislature, its members and the public reasonably well: Every bill went to a committee, and if it got out of committee, legislators had time to file amendments that can be debated by the full chamber.

After Republicans took over the Senate 21 years ago, they started short-circuiting the process to give bills their constitutionally required readings before committee action, thus preventing floor amendments. This session, the Republican super-majorities in both chambers clamped down further, not even sending bills to a committee unless a committee chair asks for them.

Legislators may say this is just a process argument, and that they are ultimately accountable for their votes. It’s not that simple. When you limit floor amendments, you limit the votes – and the chance that those votes can be used against you by an opponent, which is a big part of what the short-circuiting is all about.

The biggest short-circuit is the party caucus, especially in the smaller, more easily managed Senate. These are regular, secret meetings in which legislators engage in the real debates that decide the fate of much legislation. The public debates are mainly for show. And partisanship rules; if your bill can’t get a majority of the majority caucus, you can pretty much forget it until next session.

The pandemic has made all this worse, by limiting legislators’ contact with the public and the press. And they were already getting less contact and scrutiny from the news media, because those media have many fewer reporters than they once did.

I suspect one reason the open-records bill got greased in the House was to limit news coverage. There was no advance warning from or for newspapers, partly because the Kentucky Press Association agreed not to oppose the bill in return for removal of more objectionable provisions, such as more secrecy for preliminary documents and economic-development incentives.

KPA has been the main author and defender of the open-records law for 45 years, and is fighting other secrecy bills, but the political landscape is less friendly to newspapers these days, and it’s exceedingly difficult to block a bill that is a priority for legislative leaders.

The bill would let those leaders decide what legislative records to release and keep secret. Legislators claimed that would protect their correspondence with constituents, but the law already allows redaction of material that if released would be “a clearly unwarranted invasion of personal privacy.”

Interpreting such laws is the job of judges, but legislators don’t want to be subject to judicial review. That concept may be unconstitutional; it is certainly undemocratic and unrepublican.

“We need to make sure that we don’t make the decisions in the legislative branch that impact us directly, and there should be a check-and-balance system in place,” Rep. Derrick Graham, D-Frankfort, said in floor debate on the bill.

Rep. Mary Lou Marzian, D-Louisville, probably summed up the feelings of many: “This is what citizens and voters hate about politics. What are we hiding? What are we trying to keep from the public? . . . Why would we have a change in our system of open public records when we didn’t have something to hide?”

Yes, why?

What say you, senators?

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  1. Marv Dunn says:

    Thanks Al for keeping us informed of the nefarious goings on at the General Assembly. We get so little news of what is happening in Frankfort from the local media, or anywhere downstate for that matter. That’s why I have digital subscriptions to the Courier Journal and Herald Leader and I catch KET’s Legislative Update occasionally. Pretty sure the Governor will veto this bill, the the Legislature will overide the veto, and then its off to the courts where the Governor has had some success over the past few years. Keep up the great reporting.

  2. Dr. Marshall Myers says:

    Mr Cross, we have met several times casually. And I am a fan of “Comment on Kentucky.” I wonder iif you can help me with a research project I have been working on for years. According to all of my information “Dr. George C. McCarty” was NOt at the Kentucky Constitution Convention in Russellville in1861. But others disagree. Could you steer me in the direction of getting an answer to my query.

    I apologize for the lack of comment this email has, but I thought this would be the best way to reach you.

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