Legislative gymnastics getting a tad elaborate to pass controversial bills

“When there’s a will, there’s a way.”

That was a phrase that surfaced regularly at the end of state legislative sessions. It referred to the hope that bills that appeared dead might be resurrected.

Somehow, someway – like the zombie in a horror movie that would never die – some of those bills came back to life and were passed.

Again, when there’s a will, there’s a way.

That was the case at the end of the tumultuous 2023 session of the Nebraska legislature, when filibusters were a daily routine, not an occasional tactic to block passage of a bill.

In one corner was a “heartbeat” abortion ban, which would have blocked abortions once a fetal heartbeat could be detected, which is after about six weeks of gestation. That bill had been blocked by a filibuster and was declared “dead” for the session.

In another corner was the “Let Them Grow” Act, an equally controversial proposal that would ban gender-affirming care for minors -- and the bill that prompted a session-long series of filibusters.

At the time, it was unclear if that act, LB 574, had support of the necessary 33 senators (out of the “Gang of 49”) to overcome a filibuster. Maybe not dead, but on life support.

But suddenly, in the waning days of an exhausting, 90-day session, a solution emerged — merge the two, very controversial bills, slightly amended, into one. The goal was to entice enough senators to vote for the merged bill out of fear of allowing one of the two measures to fail.

It worked. The amended LB 574, containing both abortion and gender-care issues, passed.

Fast forward to now, when we need to discuss another phrase used down at the Capitol – “single subject.”

According to the Nebraska Constitution, legislation, as well as ballot initiatives, must be limited to a “single subject.”

“No bill shall contain more than one subject, and the subject shall be clearly expressed in the title,” the Constitution states.

Right now, a ruling is pending from the Nebraska Supreme Court about whether the merged LB 574 violates the single subject rule.

The purpose of the rule is to give senators (as well as voters in the case of ballot measures) a clear idea of what they’re voting on – a “single subject” to weigh. It’s also to avoid something called “logrolling,” when two bills that lack enough support separately are merged to get them, as one, to pass. 

You might recall that the single subject rule was evoked back in 2020 by the Nebraska Supreme Court when they tossed off the ballot an initiative petition drive to legalize medical marijuana. That initiative had attracted well over the required number of signers, and had been legally reviewed and approved by the Secretary of State.

The ruling was a legal gut punch to the families of kids suffering from uncontrollable seizures who had hoped to provide another option to quell the frequent and violent tremors in their children. (It appears that another subsequent attempt to get that issue on the ballot this year may fail again, leaving Nebraska as one of only a dozen states that has not legalized cannabis for medical use.)

No matter how you feel about medical pot, shouldn’t the voters, when enough sign a petition so they can vote on an issue, be allowed that vote?

While there have been several court rulings about the single subject rule concerning ballot initiatives, there have been only a few when it comes to the rule as applied to legislation.

That gives great leeway to the judges on the Nebraska Supreme Court (who, by the way, were appointed by governors who oppose the legalization of medical pot, and support strict abortion bans and restrictions on gender care for minors). 

So, soon enough, we’ll find out if state lawmakers stretched the single subject rule too far in marrying separate bills that concerned abortion and gender rights.

Ok, we all see plenty of legislative gymnastics and deal making to get bills passed at the State Capitol. Usually, that happens when there’s probably enough support to get something passed, and it just needs a couple tweaks to do it.

But it seems like the gymnastics are getting more elaborate these days.

 This spring, we saw the legislature rescind a law allowing “Opportunity Scholarships” to attend private schools -- a move that removed from the ballot an initiative successfully pushed by supporters of public schools.

 That maneuver was labeled as “underhanded” and a “slap in the face” to those who signed the petition and wanted to vote on the controversial issue. 

 While a second petition drive, to allow a vote on a new Opportunity Scholarship law passed this spring, may qualify (again) for the ballot in November, you can’t help but think that people are losing faith in the fairness of what goes on in Lincoln.

At a time when trust in government is at an all-time low, avoiding the pairing of two, very controversial and separate bills might be a good way to restore some of that trust.

Paul Hammel has covered the Nebraska state government and the state for decades. He retired in April as senior contributor with the Nebraska Examiner. He was previously with the Omaha World-Herald, Lincoln Journal Star and Omaha Sun. A native of Ralston, he loves traveling and writing about the state.