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Lawmaking Behind Closed Doors Under Fire in States

As the saga of Hillary Clinton’s emails has shown the world yet again, looking like you might have something to hide immediately arouses suspicion.

It’s sometimes easier and more efficient to make decisions at informal meetings, but that doesn’t mean it’s necessarily a good idea to do things that way -- particularly for people in government.

Until recently, most committees in the Tennessee House held “pre-meetings,” where legislators would discuss issues and take vote tallies. All of this took place sometimes minutes before matters were officially decided at hearings. Members of the press and the public were not welcome.

Once news about this practice broke in March, House Speaker Beth Harwell immediately put her foot down. Meeting times should be made public and there should be an “open door policy,” she instructed committee chairs. Some legislators said there was nothing nefarious at play. It simply made things run faster and more smoothly to get up to speed in private. But the fact that bills sometimes went down without public discussion or vote -- and the revelation that lobbyists were able to make pitches in private­ -- made the whole thing look bad.

As the saga of Hillary Clinton’s emails showed the world yet again, looking like you might have something to hide immediately arouses suspicion. “Most of the time, on most policies, meetings should be open to the public so the world can know what we’re talking about,” says Alabama state Sen. Cam Ward.

With his state’s open meeting law eviscerated by a series of state Supreme Court decisions, Ward sponsored legislation to bring it back to life. It passed the Senate, “31 to nothing,” he says. “This lets people know what we’re talking about and it lets people know what our intentions are.”

It’s hard to argue against transparency, yet there are constantly efforts to weaken public record and open meeting requirements, or work around them. The temptation is pretty strong. And there are times when it makes sense to keep a secret -- when an economic development deal is being worked out, for instance, or during the early stages of a background investigation of a potential appointee.

But there’s a reason they call it public office. Even with public access, it’s tough to know when lawmakers are trading favors or arranging sweetheart deals. Without it, forget it.

Even states with strict access laws sometimes have glaring loopholes. In keeping with its nickname, Florida has some of the strongest sunshine laws in the country. But legislators often find ways around such requirements. Anytime three or more legislators meet, they have to announce that fact and do so in public. But that only applies to prearranged meetings. If a few legislators happen to bump into one another in the hallways, why, they can sit and talk a while without alerting the press.

If agreements made in secret aren’t above board, though, there can be repercussions. Ray Sansom had to step down as speaker of the Florida House in 2009 after it came to light he’d secretly cut a deal to funnel $6 million in building funds to benefit a campaign contributor. (Criminal charges were later dropped.)

Debate about what business must be done in public continues in Florida. Gov. Rick Scott and the cabinet are facing a lawsuit from a private attorney and media outlets alleging that they improperly met in private to deal with the firing of the head of the state law enforcement agency. Scott and his cabinet have devoted $50,000 toward fending off the suit.

So far, they have neither confirmed nor denied that they met in private. “Scott’s not Mr. Sunshine,” says Barbara Petersen, president of the First Amendment Foundation in Tallahassee. “I refer to him as the black hole of sunshine.”

Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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