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Amye Bensenhaver: Expecting disaster, House greets public with unwelcome news — rules limiting debate

What to expect when you are expecting disaster?

The House majority greeted Kentuckians with unwelcomed news even before the 2022 Regular Session began.

New rules of procedure issued by the majority on January 3 limit lawmakers’ opportunity to debate bills and may impair the public’s ability to monitor the movement of bills — further undermining foundational principles of representative government and the public’s right to know.

In an email to House leaders and members, lawmakers received notification of rules changes in the 2022 session that include:

Amye Bensenhaver

• deleting the “Report of Committee Postings” portion of the Orders of Business;

• removing the process of posting bills or resolutions for hearings in committee;

• eliminating the ten minutes given to each side for debate once a motion for the previous question has been adopted and bringing the measure to an immediate vote;

(A motion for the previous question is used during the consideration of a matter to terminate debate, foreclose the offering of amendments, and to bring the bill to a vote on the main question.)

• including explanation of vote as part of the time allotted for limited debate and giving the Speaker of the House discretion to decide the time allotted.

We are not experts on parliamentary procedure, or the inner workings of the Kentucky General Assembly, but we can read. It’s clear that these rule changes limit notice to the public and the members’ opportunity to debate.

It’s unfortunate in an era when lawmakers aggressively alter and amend well-established open records and open meetings law — at the expense of the public’s right to know — that they elect to do so under rules that limit notice and an opportunity to adequately vet proposed laws that abridge existing rights.

The majority party seeks to minimize the gravity of these rule changes by characterizing them as clarification”— always a dog whistle.

Bear in mind, Kentucky lawmakers made few changes to either law in the decade after they were enacted in the seventies. Major revisions aimed at expanding the public’s rights were debated and thoroughly vetted by lawmakers and stakeholders in 1992 (open meetings) and 1994 (open records).

Lawmakers responded to the events of September 11, 2001, by enacting a homeland security exception in 2005 — after a thorough vetting of the language of the exception over a period of several years. A second exception —this one for archival records donated by public figures — was enacted in 2005 but has never been invoked.

In 2017, the stability of the law was tested, and the balanced shifted against “free and open examination” of public records and meetings. A bill aimed at eliminating the final vestige of public oversight of the public procurement process was piggybacked onto unrelated bills and enacted into law — with little discussion— creating a new open records and a new open meetings exception.

This was followed by Senator Damon Thayer’s failed 2018 attempt to eviscerate Kentucky’s open government laws by excluding public official/employee communications about public business on private devices and private email accounts from the definition of “public records” in the open records law. Lawmakers instead enacted a third “compromise” exception.

Lawmakers undertook coordinated efforts aimed at undermining the open records law in 2019. They attempted to enact multiple new exceptions and excluded the General Assembly from the open records law. Vocal opposition from the media and the public stalled these efforts.

COVID impeded lawmakers efforts to abridge the laws in 2020.

2021 witnessed a legislative assault like no other. In spite of strong opposition from the Kentucky Open Government Coalition, media outlets and stakeholders across the country, and the public, lawmakers enacted three new exceptions to the open records law and made multiple changes to its structure, use, and reach. No longer can nonresidents use the law to access Kentucky’s records. No longer is the Legislative Research Commission and the General Assembly accountable to the public it serves through the law it enacted: the open records law.

In 1990, the open records law contained 12 exceptions. It now contains 18 exceptions. Do the math.

As we write this — and over the protests of minority party members — the House overwhelmingly passed HR1, the rules of procedure limiting notice to the public and the members’ opportunity to debate.

Watch for new exceptions addressing discussion of “proprietary” records at public meetings and expanding the availability of the preliminary documents exceptions. The latter, in particular, poses a serious threat.

These “clarifications” open one door — the door to passage of unvetted laws that reduce the public’s right to know by means of truncated notice and debate.

Amye Bensenhaver is a retired assistant attorney general, open government advocate, and blogger for the University of Kentucky Scripps Howard First Amendment Center. Along with Jennifer P. Brown, former editor of the Kentucky New Era and publisher of an online news site in her hometown of Hopkinsville, she helped establish the Kentucky Open Government Coalition to provide a voice for all citizens who support government transparency and accountability. 

NOTE: Open Government co-director Austin Horn is a reporter for the Lexington Herald-Leader. He has recused himself from any stance on legislative matters.

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