Hoosier conservatives were dominant and victorious in the General Assembly during the recent session, but now their three major pieces of legislation are on shaky ground. The laws cracking down on illegal immigration and defunding abortion clinics have received rebukes from federal judges, and the sweeping new school voucher law is facing a teacher-backed lawsuit. Questions are being raised about how laws are vetted for legal issues, since so much legislation seems to have flaws this year. Republicans are blaming Democrats, who walked out for weeks and forced a heavy workload in a much shorter time, and they have a point. Democrats blame Republicans, who tried to do too much in that shortened time, and they have a point, too, though it seems remarkably brazen of them to make it.
Such mistakes can be minimized but not avoided altogether:
"Sometimes I wonder if you find legislators who just want to push the boundaries on something like that," said Doug Masson, a Lafayette lawyer and veteran observer of Indiana politics.
Masson used to work for Indiana's Legislative Services Agency, which does the grunt work of translating lawmakers' ideas and goals into legislation. LSA lawyers typically alert lawmakers if they spot something that is either unconstitutional or would violate federal law, he said.
Their job, Masson said, is not to make political judgments of whether an idea is good or bad, but to give lawmakers the lay of the land and let them decide whether to proceed from there.
Regular readers might recognize Mr. Masson as the Doug of Masson's Blog who comments here frequently. If his remarks about Indiana legislation have seemed especially insightful, now you know why.
His point about political judgments is an important one. The LSA researchers can only advise the legislators about the probable constitutionality of proposed legislation and its possible flaws and loopholes. It's then up to the lawmakers to decide whether to proceed, and the likelihood of a legal challenge to a proposal shouldn't be the only factor considered. A new proposal might be worth advancing even if it does face constitutional challenge, or it might not be. That's how the edifice of law is built.
That's why it's a valid point that the GOP tried to do too much in the walkout-shortened time available to it. Legislation that is based more on principle than on pragmatic concerns is legislation that can wait a little longer, since there is no immediate problem to solve or danger to avert. Heaven knows we have more than enough laws now, and taking a little time to more carefully craft these values-based bills in the next session wouldn't have been the worst thing the General Assembly ever did.
Doug again, from his blog:
But, it's a funny thing about legislation. When you draft a few tons of it, it becomes abundantly clear that there is nothing magic about it. It's just words on a page.
[. . .]
I'll add that getting legislators to slow down and listen felt like a major task even during ordinary years. A lot of them were busy, “big picture” types without a lot of patience for detail.
Yeah, what he said. Those particular comments are aimed at a goof in another bill, which the governor is temporarily fixing with an executive order.
Last week, Senate leaders discovered that one of the measures they'd passed this year accidentally repealed the Family and Social Services Administration.
It's Indiana's largest state agency, upon which some 1 million Hoosiers rely for Medicaid, food stamps and more. And under a new state law, it would be abolished.
[. . .]
The story is, state law sets dates for a host of things to sunset. An old law was going to have the FSSA, an expansive human services agency, sunset on June 30.
Nobody was seriously considering getting rid of the agency, and the General Assembly passed a measure that would repeal that sunset provision. Problem was, that measure was set to take effect July 1. In other words, under state law, the FSSA was already gone.
Whoooops!
How about we start a petition drive asking our state legislators to undertake, next session, after they do whatever budget fixes are necessary, only to repeal existing measures. Or maybe we could have a legislative neutrality act the way certain government units undertake fiscal neutrality measures: The General Assembly must repeal one old law for every new one it enacts.
