Any hopes for a picture-perfect ending to the 2011 legislative session were dashed some time around 11 p.m. on Friday, when Gov. Rick Scott’s communications directors told reporters the governor was headed home for the night.
Lobbysits and legislative staff had already assembled around the velvet ropes where Scott was supposed to give his “Sine Die” speech, heralding the end of the session and the passage of much, though not all, of his first-year agenda.
Brian Burgess said Scott had to be up around 5 the next morning, in time for a charity breakfast hosted by former Florida Gator quarterback Tim Tebow in Ponte Viedra Beach, followed by a marathon of media interviews. Burgess said the governor would turn his car around if lawmakers managed to reach a deal in a matter of minutes, but that wasn’t looking likely.
“I challenged this legislature during my State of the State speech to focus on our economy. I said, ‘Don’t blink,’” read one of the lines in the speech that Scott never gave.
As it happened, the House and Senate were locked in a staring contest centered on the budget and a stack of related bills not yet passed, including a package of tax breaks — one piece of an interlocking set of deals struck by legislative leaders that had begun to fall apart that evening, as veteran lawmakers revolted against substantive policy changes stuck into thousands of pages of take-it-or-leave-it legislation theoretically tied to the budget. Parts of the agreement had been cobbled together in secret, with some provisions not unveiled until the night before.
The final few hours of the session saw a handful of bills die, and wound up exposing a flaw in this year’s legislative process, a product of the dealmaking between legislative leaders in the waning weeks of the session. Much of the talk in its wake will focus on the winners and the losers, what passed and what didn’t, and what it all means for the 2012 elections. But one of the biggest lessons of the session was that when major pieces of legislation are tied up in secret deals between legislative leaders that bypass the normal procedures, it causes problems.
More than once on Friday, lawmakers invoked the old cliché that likens writing legislation to the art of sausage-making. The process may be flawed, but the results can be tasty.
Still, the average citizen might hope that the product isn’t produced out of public view with a slew of mystery ingredients, and concocted in a way that could prevent anyone from removing even the foulest-smelling parts. That’s what happened this session, in historic propositions, as an untold number of policy-making provisions were stuffed into dozens of budget conforming bills.
About those conforming bills
In theory, conforming bills are supposed to enact the policy changes that make the budget work. Because of the way they’re tied to the budget, they can’t be amended.
In recent years, the number of conforming bills has multiplied. There were more than 40 of them this year, some of which had little to do with the budget itself, including two measures at the center of Friday’s legislative meltdown: a controversial provision to deregulate professions such as interior design, and a provision that gave a tax break to arcade-style slot machines tailored to cover Duval County, home to a dog track and gambling house run by a former lobbying client of John Thrasher, the St. Augustine Republican who serves as Senate rules chair.
The conforming bills were largely crafted in secret as part of the broader budget negotiations, in which a select group of lawmakers hammered out a deal between the House and the Senate.
Many of them were not made public until Thursday, the day before they were voted on. The decisions were made “by basically a couple of people, not in the public eye,” according to House Democratic Leader Ron Saunders. “I think that’s very concerning, because they can do that to anything.”
The problem, Saunders said, was not necessarily the contents of the conforming bills, but what could have been in them. Many of the big-ticket policy changes tucked into conforming bills, including a sweeping rewrite of the state’s growth management laws, were going to pass anyway.
“It ended up being not that bad,” he said. “But it could have been.”
Rep. Jim Waldman, D-Coconut Creek, the rules point man for House Democrats, said conforming bills have proliferated during his tenure, from a handful a few years ago to nearly four dozen this year. Sen. Jack Latvala, R-St. Petersburg, said the number of pages in the conforming bills had surged from 400 a few years ago to some 2,200 this year — a staggering five-fold increase. PoltiFact rated his claim “true.”
Sen. Paula Dockery, R-Lakeland, complained via Twitter: “In all my 15 yrs in Legislature, I have never seen conforming bills handled like this. I can’t read fast enough.” She added later: “Thank goodness we’ve been stuck on Latvala’s bill for awhile. I was able to read 16 conforming bills. 11 questionable ones.”
Most legislators have not really tried to argue that the proliferation of policy-changing conforming bills was somehow helpful to the legislative process. Both Senate Rules chair Thrasher and Budget chair J.D. Alexander, R-Lake Wales, said they would consider doing things differently next year.
“A conference committee is an effort where people agree to things that they might not have otherwise have done in their chamber because it’s important to the other chamber. That’s what conference is all about,” House Speaker Dean Cannon, R-Winter Park, said. “That’s why conference is sort of an implied agreement between the two chambers.”
On Friday evening, senators started voting down conforming bills that bore no direct relationship to the budget, which to Cannon amounted to a breach of that agreement. That helped throw the session off-script.
Early signs of trouble
The deal began to unravel in part because of the personalities that shaped legislative poltics, and the differing leadership styles that defined the two chambers.
Senate President Mike Haridpolos has touted what he describes as his “open” leadership style. He delegated policymaking decisions to his committee chairs, which include two members of the minority party, and allowed senators to openly reject measures he supported personally, such as an amendment to an immigration bill that would have expanded the use of E-Verify for private companies, which was voted down.
Even as she prepared to vote against the budget, Minority Leader Nan Rich praised him for including Democrats in major policy decisions, and for allowing spirited debates on controversial measures that the Republican supermajority could have rammed through at will. Individual personalities loom larger in the 40-member Senate, where lawmakers are generally more experienced and more able to sway colleagues to their views.
By contrast, Speaker Cannon ran the House like a machine. The chamber, which includes dozens of first-time lawmakers, may have bucked him on occasion, but he got his way on major pieces of legislation, and he never saw open revolts like the one that unfolded on Friday evening, when senators soundly rejected a pared-back professional deregulation measure, which had drawn vocal and sometimes tearful opposition from groups like interior designers, who enlisted a clutch of top-shelf lobbyists in their cause.
The Senate voted down the measure 32-6, with members of the leadership (Haridopolos, Senate President-in-waiting Don Gaetz, Budget chair Alexander, Rules chair John Thrasher, Majority Leader Andy Gardiner and health appropriations chair Joe Negron) united on the losing side.
Members followed that extraordinary defeat by taking down another conforming bill that dealt with the regulation of mold inspectors. They would have shot down another, had Haridopolos not taken a procedural mulligan by postponing the vote while it was in progress.
The chatter in the capitol halls was that Haridopolos had lost control of the Senate.
“Normally those bills would have been heard in [a Senate] committee, and I think that’s what probably got most members feeling uncomfortable,” Thrasher said later.
The House strikes back
The House struck back, rejecting a conforming bill dealing with the state-owned Citizens Property Insurance, and also rejected changes to a health care measure, which had become what is known in legislative jargon as a “train” — a bill on which all sorts of special-interest provisions start hitching late-night rides. Sen. Stephen Wise helped attach a provision that would have allowed a private college in Jacksonville to build a facility to train nursing-home staff, and Sen. Ellyn Bogdanoff added on some language that would have deregulated a chemical component for painkillers.
Rep. Matt Hudson, R-Naples, the House’s health budget chief, blasted Bogdanoff’s amendment, saying it would undermine an effort, approved just hours earlier, to crack down on pill mills. The accuracy of his assertion was beside the point. It was a chance for revenge. Cheers and catcalls rose up from the chamber as the House voted to strike the Senate’s additions and heave the measure back across the capitol.
The House still held the biggest card in the deck besides the budget itself: the tax-break conforming bill that contained the gambling provision.
The Senate eventually passed its budget, along with a resolution extending the session into Saturday. The resolution only allowed for the passage of the budget and the related conforming bills, so the House had seemingly no choice but to pass the tax-break measure with the controversial gambling provision attached.
Midnight came and went, and the House had left the budget and the tax-break conforming measure untouched. Haridopolos was incensed. He slammed his gavel on the dias and expressed his wonderment at the House’s failure to send over the tax-break bill, which would have allowed the Senate to sign off on the session.
He told members to stay close. He would sleep in his office until he got word that the House had passed the measure, and said he planned to call members back around 10 a.m., if there was anything available for them to pass.
Saunders couldn’t help but smile. Republicans, who held the governor’s mansion and a supermajority in both houses of the legislature, had dragged the session into overtime by fighting among themselves.
The gambling problem
Various lobbyists and lawmakers offered competing interpretations of when and how the gambling provision had been added to the tax-break bill, and of what exactly it did, since it was written in the virtually indecipherable language of gambling statutes. Everyone basically agreed that it would benefit gambling interests, which was anathema to some House members, especially Christian conservatives like Rep. Scott Plakon, R-Longwood, who said seeing the measure tied up with more desirable tax breaks was giving him “heartburn.”
House members eventually figured out that they could waive the rules and take up House Bill 143, which basically had the same tax breaks, but could be amended. They struck the gambling provision and adjourned, Sine Die, on the spot. As far as the House was concerned, the session was over at 2:37 a.m.
Plakon breathed a sigh of relief, and said he was grateful that Cannon had heard his concerns. The hallelujah chorus blared over the loudspeaker. Representatives were back-slapping and high-fiving and asking each other about summer travel plans.
The Senate now had two options: accept the measure as amended, without the gambling provisions, or let it die.
Sine Die in the Senate
Senators filed into the chamber around 3 a.m., some red-faced, some looking a bit disheveled, some rubbing the sleep out of their eyes. Both Mike Benentt and Lavala weren’t wearing any socks. Anitere Flores shivered in a sleeveless dress. Jeremy Ring showed up in jeans and a T-shirt, and had to find a coat to comply with chamber decorum. Three senators never made it back.
“Somebody explain to me, what is going on,” demanded Ronda Storms, R-Brandon. “I’ve had about enough of not following procedure.” She wanted to know how the House had managed to send over something that wasn’t a conforming bill from the conference agreement.
Thrasher and Alexander explained that because the substance of the bill had technically been part of the conference process, it was still in play. Senators eventually figured out that the gambling provision had been removed, but the rest of the tax-credit measure was intact, and expressed support for their leader as they prepared to vote for the bill and go home.
“The arcade thing, or the amusement game thing, I put that in a conforming bill, and it got put into this particular bill somewhere down in the House. I don’t even know how it happened,” Thrasher said.
“This is one little minor issue,” he added. “Nobody should go away from here thinking that one house beat the other house. The people of Florida won with this budget, and they won with your great leadership, Mr. President.”
Latvala, a veteran lawmaker who had served during the ’90s before returning to the Senate after the 2010 election, said he hoped his colleagues would learn something from the events of Friday night and Saturday morning.
“In three years, the conforming bills have gone from 400 pages to 2,200 pages,” he told Haridopolos. “I think that a lot of the frustration in this building and a lot of the concern in this building today has been about that issue.
“I pray that when we have the closing night of our session next year, that your leadership will show us that we can turn the clock back on that trend, and that as part of the transparency that you promised us in this process, and under your leadership, that maybe that can be one of the main steps we take — to reign in that conforming bill process, and get back to the days when the substantive law of the Senate was done on the floor of the Senate and in the committees of the Senate, in the normal process. Thank you very much.”
“I’ve had a far from perfect session,” Haridopolos said. “I’ve learned a lot in the past 60 days, about myself and about everyone in this room.”
Amid all the gamesmanship on Friday, Haridopolos noted, his eyes welling up, two men were denied justice. William Dillon, who served 27 years in prison for a crime he did not commit, and Eric Brody, who was paralyzed after a collision with a car driven by a Broward County deputy. Both were set to receive claims from the state. The measures cleared the Senate, but died in the House.
“They should have been served better today,” Haridopolos said. That they weren’t was “a sad commentary on politics.”
He called for the Senate to take one vote before passing its final bill, “for all those folks who’d like to see Eric Brody and William Dillon served with justice next year.” The board lit up with “yes” votes, a sign that perhaps next year things will be different.
“Politics got in the way today, and I’m embarrassed for it,” Haridopolos said. “We’ll come back here next year, and hopefully we’ll get it right.”
Note: This is one reporter’s attempt to understand and explain what happened during a few frenzied hours at the end of the 2011 session of the Florida legislature. It is hardly a definitive account — yet. If there are perspectives missing or crucial facts not considered, please feel free to share them with us, either in the comments or anonymously, and we will update this article accordingly.