Frankfort
They come by many names.
An act relating to reorganizations. An act relating to insurance. An act relating to education, or banking, or economic development, or agriculture.
They all purport to do one of two things: add gender-neutral language or make a “technical correction” to a Kentucky statute.
There is not a raft of he/him pronouns in the Kentucky Revised Statutes. Instead, these are shell bills, sometimes called mule bills. They are filed and given all the necessary readings and assignments purely so lawmakers can strip them and put in something new at the last minute, with little public input. They are fish waiting to be gutted and turkeys waiting to be stuffed.
“It’s called trick the public,” said Rep. Mary Lou Marzian, D-Louisville. “You get a whole new bill that nobody’s had a chance to read and the public hasn’t had a chance to look at.”
The legislature is often portrayed as government’s deliberative body. The legislative process, mapped out by the Kentucky Constitution, is designed so that people can express their opinions on bills as they move methodically between the House and Senate before being sent to the governor for his signature.
Working at its fastest pace — without suspending the rules — it takes the legislature at least five days to pass a bill.
Shell bills allow lawmakers to skip much of that, reducing the time required for a bill to become law while limiting input from the casual observer.
Senate Minority Floor Leader Morgan McGarvey, D-Louisville, said the process shields information from the public, causing them to lose trust in the politicians representing them.
“Everything we do up here should be done with as much transparency as possible,” McGarvey said. “To do otherwise causes people to lose faith in government.”
The 2021 legislative session — already unusual because COVID-19 cut short the 2020 session and restrictions have largely kept the general public out of the Capitol — featured several shell bills as lawmakers hurried to get legislation over the finish line in a short 30-day legislative session.
One of those bills was House Bill 312, which weakens Kentucky’s open records law. It was put into a bill that originally made gender-neutral language changes in a law that dealt with financial institutions. That change was made in a House committee on a Thursday. By the next day, it had cleared the House of Representatives, just as outcry started to build from opponents who were reading the bill for the first time.
House Speaker David Osborne defended the sleight of hand, saying that lawmakers and interest groups had been working on the bill’s language for years.
“It’s just simply not true to say nobody knew about it,” Osborne said.
Still, the bill was available to the public for less than 24 hours before it passed the House of Representatives. By the time it made it through the Senate — with more public feedback — the bill included changes advocated by critics who didn’t have time to express their views before the House vote.
Shell bills have long been a part of the way things work in the Kentucky General Assembly. Both Republicans and Democrats — whichever is in the majority — have used them to help get controversial measures through the legislature.
“We just have to have these tools at our disposal,” said Senate Majority Floor Leader Damon Thayer, R-Georgetown.
He said time constraints often force lawmakers to take this particular shortcut. “It’s not like a lot of legislatures that are in session for the year.”
Every session, lawmakers have a deadline for filing new bills, usually around the halfway mark. Sometimes, lawmakers come to an agreement on the language of a bill or want to address an issue after that deadline has passed. Since they can’t file a new bill, they use one that already exists, scrapping the old language.
Usually this is done in a “committee substitute,” which means the old language of the bill is thrown out and replaced with new language during a committee meeting. Often, the committee votes on the revised bill before it has ever been published for the public to read.
One of the most notorious examples came in 2018, when Republicans were trying to pass major pension reforms for the Teachers’ Retirement System of Kentucky. Instead of using a shell bill, the legislature used what’s sometimes called a “parasite bill.”
Republicans took “An act relating to sewer systems,” gutted it and replaced it with the language of a pension bill that had been stalled in a Senate committee. The “sewer bill,” as it came to be known, had already passed the Senate, so after it made it out of the House in a single day, the Senate only needed to take one vote to “concur” with the House’s changes to the bill.
The Kentucky Supreme Court later struck down the law, saying politicians hadn’t followed the process of making a law as it was set out in the constitution.
Now, when lawmakers pass a shell bill, they read from a script that directly addresses the 2018 Supreme Court ruling.
This story was originally published March 26, 2021 9:20 AM.
