The fallout of H.B. 477 continues up at the Utah legislature, with two bills this session — one from each side of the aisle — that would require parties to make their caucuses open to the public in certain circumstances.
One bill, H.B. 89, is proposed by Representative Kraig Powell, who promised to make this a focus of his efforts after publicly back-tracking in his original support of H.B. 477. The other bill, S.B. 45, is being sponsored by Democratic Senator Ross Romero, currently a candidate for Salt Lake County Mayor.
I thought I’d take a couple minutes and compare the two bills, to see what the differences are.
H.B. 89 – Representative Powell
H.B. 89 is by far the simpler bill, providing simply that wherever a quorum of a “public body” is present at a meeting of a “political party, political group, or political caucus” where “legislative action” is being discussed, that meeting must be open to the public, though attendance can be regulated.
Here’s the actual text:
52-4-211. Political caucus open to public — Conditions.
(1) A political party, political group, or political caucus is not subject to the provisions of this chapter except as provided in Subsection (2).
(2)(a) If a quorum of a public body is present at an assembly of a political party, political group, or political caucus, any discussion by the political party, political group, or political caucus of legislative action by the public body, whether the legislative action is pending, proposed, potential, or previously-passed, is open to the public.
(b) A political party, political group, or political caucus may regulate or limit attendance at a discussion described in Subsection (2)(a) if reasonable access to the discussion by the public is preserved.
A “public body” is defined in Utah Code Ann. § 52-4-103 as follows:
(8) (a) “Public body” means any administrative, advisory, executive, or legislative body of the state or its political subdivisions that:
(i) is created by the Utah Constitution, statute, rule, ordinance, or resolution;
(ii) consists of two or more persons;
(iii) expends, disburses, or is supported in whole or in part by tax revenue; and
(iv) is vested with the authority to make decisions regarding the public’s business.(b) “Public body” does not include a:
(i) political party, political group, or political caucus; or
(ii) conference committee, rules committee, or sifting committee of the Legislature.
A “quorum” is defined as “a simple majority of the membership of a public body,” though it “does not include a meeting of two elected officials by themselves when no action, either formal or informal, is taken on a subject over which these elected officials have advisory power.”
None of the other key terms in H.B. 89 are defined, but they are more self-explanatory. The practical effect of the bill would seem to be almost exclusively limited to state legislative party caucuses because, although a non-partisan legislative body like a city council might qualify as a “public body,” in order to be subject to the provisions of this chapter, a majority of the members of the city council would have to assemble at a meeting of a political party, political group, or political caucus, where a legislative action (past, current, or future) was being discussed. This seems unlikely, although it’s possible to imagine a scenario where, say, a (quorum) a simple majority of Salt Lake City council members decide to attend a Democratic or Republican Party meeting where the legislation efforts of the council would be discussed — if that happened, it seems that H.B. 89 would require that meeting to be open to the public.
S.B. 45 – Senator Ross Romero
Senator Romero’s bill is much more detailed that Representative Powell’s and reads as follows:
52-4-211. Meetings of legislative political caucuses.
(1) As used in this section:
(a) “Legislative party leadership” means:
(i) the speaker of the House of Representatives;
(ii) the president of the Senate;
(iii) the leader, whip, assistant whip, or manager of a legislative political caucus; or
(iv) the chair or vice chair of the Executive Appropriations Committee, the Senate Rules Committee, or the House Rules Committee.(b) (i) “Legislative political caucus” means an assembly of legislators:
(A) to which belong a majority of legislators from the same registered political party in a chamber of the Legislature;
(B) called to assemble by a person authorized by the caucus to do so for the purpose of discussing policy, legislation, strategy, plans, or registered political party business; and
(C) on a day that the Legislature is conducting the annual general session, a veto-override session, or a special session.(ii) “Legislative political caucus” does not mean:
(A) an assembly of legislators who are an informal or unofficial subgroup of a registered political party;
(B) an assembly of legislators who meet because the legislators share a particular political philosophy distinguishable from the legislative political caucus; or
(C) a meeting only attended by two or more legislative party leadership.(c) “Registered political party” is as defined in Section 20A-8-101 .
(2) (a) A legislative political caucus is not required to comply with the provisions of this chapter except as provided in this section.
(b) A legislative political caucus shall be open to the public except in the circumstances described in Subsection (3).
(3) A legislative political caucus is not required to be open to the public during the portion of the caucus during which business is conducted relating to:
(a) a purpose described in Subsection 52-4-205 (1); or
(b) caucus or legislative party leadership elections.
Senator Romero’s bill would seem to open all official party legislative caucuses to the public that (1) are called by party leadership, (2) during the legislative session, (3) for the purpose of discussing legislation, plans, or strategy. In that sense it is broader than H.B. 89, which would apply only to caucuses where a (1) a quorum was present, and (2) were held for discussions of legislative action. As currently drafted, S.B. 45 would also be more narrow that H.B. 89 in that it would only apply to assemblies of “legislators” and would only operate when the legislature is in session.
However, all these distinctions may be more apparent than real, as it is unlikely that Representative Powell’s bill would have much (if any) application outside of the the legislative session, and Senator Romero’s bill contains a number of exceptions designed to allow the caucuses to be closed in specific situations (such as party leadership elections and the other many situations identified in Utah Code Ann. 52-4-205(1)) and to exempt specific groups, such as the Patrick Henry Caucus, for example, from the open caucus requirement.
Overall, the bills are similar enough in their effect, that’s it’s probably a wash between the two. The more interesting fight will take place between those who will argue that it’s an impermissible limitation on the freedom of association to mandate closed caucuses at all. I’ll be posting on that a bit later, if I can find the time.
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