The Legislative Counsel Bureau is not some dispassionate legal apparatus advising lawmakers on constitutional or procedural matters—it’s often little more than a cheerleading squad for whatever political party is currently in the majority.
That’s why, in 2019, it argued that Democrats could increase state revenues without the constitutionally-required two-thirds support of both legislative chambers—a maneuver that was ultimately slapped down by the state Supreme Court, causing a headache for bureaucrats tasked with returning the funds.
It’s also why, despite the Constitution’s clear separation of powers clause, the LCB has defended lawmakers who simultaneously serve as active-duty executive branch employees—including two government prosecutors currently serving in the Senate.
This last week, the bureau once again flexed its propensity for intellectual gymnastics by claiming that a small committee of lawmakers may allocate billions of dollars in federal coronavirus aid without consulting the rest of the duly elected legislative body.
According to the LCB’s legal opinion, the state’s $2 billion of unspent American Rescue Plan relief funds can be allocated by the 23 members of the Interim Finance Committee (IFC) without the need for a special legislative session.
Such massive spending decisions being made by a fraction of lawmakers, with no input from the rest of the Legislature, isn’t exactly the sort of process that leaps to mind when one thinks about representative democracy—nor is it what the majority of lawmakers likely expected. As noted by The Nevada Independent, the recent legal opinion was a “stark departure” from what lawmakers were told by the Governor’s Finance Office just a couple months ago.
And it’s a departure that very likely could end up challenged in court.
However, even if the courts decide the LCB was correct in its politically convenient reading of the law, the decision to allow a mere one-third of lawmakers sole discretion over spending $2 billion of federal aid is a grotesque departure from the kind of representative government Nevada residents deserve.
Such a maneuver would also cheapen the governor’s recently concluded “listening tour,” where he spent a considerable amount of time convincing residents that they would have a say in how relief funds would be allocated. After all, asking Nevadans how they want to have billions of federal dollars spent, only to then have legislative leadership turn the fate of $2 billion over to a mere committee, resembles the type of disingenuous nod to public-consensus seen in banana republic politburos—not the type of governance one would expect in an American state run by leaders who take their legislative duties seriously.
Moreover, the types of decisions that are going to be made about the allocation of that money are pretty much tailor made for a special session. After all, if the funding of a football stadium warrants its own gathering of the state’s electeds, certainly the distribution of billions of federal dollars—in the midst of a global pandemic and struggling economic recovery—merits similar consideration.
Given the LCB’s legal opinion, however, it appears unlikely legislative Democratic leadership is willing to do so. Which could turn out to be a serious political and constitutional mistake.
Should the LCB’s most recent opinion be found equally as divorced from constitutional law as its guidance on the 2019 revenue increases, the logistical and bureaucratic consequences would make the DMV’s inept handling of illegally collected fees look positively benign. The mere risk of encountering such a future bureaucratic (and political) nightmare should, by itself, encourage pragmatic members of Nevada’s Democratic Party to express reluctance in accepting the LCB’s opinion as legal gospel.
However, even if such constitutional concerns are ignored or dismissed as unfounded, there still remain plenty of political reasons to call for a special session rather than govern by committee. After all, choking two-thirds of lawmakers out of the process will only exacerbate the partisan animosity that has plagued our political ecosystem in recent years.
To be sure, a special session will be full of its own challenges, both politically and practically speaking. However, such is the nature of republican forms of government. The messy, deliberative and often contentious process of a full legislative debate is no guarantee of compromise or equitable outcomes—however, such challenges are the very features that ensure a broader consensus and “buy in” from those who are governed.
In other words, it’s the full legislative process—not decisions made by the members of a special committee—that lends democratic credibility to the actions of government.
Given the sheer magnitude of the dollar amounts involved, voters deserve the right to know that their electeds have a chance to protect and advance the interests of the communities they represent. After all, Nevadans are entitled to a truly representative form of government—even if the Legislature’s bureaucratic cheerleading squad claims it’s not strictly necessary.
Michael Schaus began his professional career in policy and public commentary over a decade ago, working as a columnist, a political humorist, a radio talk show host and, most recently, as the communications director for Nevada Policy Research Institute. In 2021, Michael founded Schaus Creative LLC, a creative branding and design agency dedicated to helping organizations, businesses and activists tell their story and motivate change. Follow him at SchausCreative.com or on Twitter at @schausmichael.