Government transparency is always important. During times of crisis, it is paramount.
When an emergency such as the COVID-19 outbreak occurs, the power of government may need to be brought to bear in more intrusive and unilateral ways than is reasonable during nonemergency times. Advocates across the political spectrum can understand that the balance between protecting public health and intruding on civil liberties and individual rights may shift during an unprecedented public health emergency.
Yet we must remain watchful that the balance does not shift too far.
It is precisely because of this rebalancing that the decisionmaking processes of elected officials during times of crisis should be more open, not less. Policies should be as fiercely debated as ever, if not more so. And public accessibility and input should be prioritized, as it is the public whose rights will be directly impacted by policymakers’ decisions.
Like a number of other state and local governing bodies, Minnesota’s Legislature adjourned on March 16 due to the COVID-19 outbreak. They set a return date of April 14, with an agreement from leadership that they could return earlier in order to respond to the crisis as needed.
Between March 16 and April 14, the Legislature reconvened twice in full to vote on COVID-19 response legislation. Both pieces of legislation encompassed a variety of provisions to address Minnesotans’ needs, and passed both chambers almost unanimously. The governor signed them immediately.
On the surface, this is a good thing. Minnesota has the only divided Legislature in the country. Setting aside partisan disagreements to respond quickly to an emergency is important. Commitment by the Legislature to continue doing work is also important.
However, the way that these two pieces of legislation came together and were passed was disquieting.
In order to avoid triggering the Open Meetings Law, which requires meetings of public bodies to be open to the public, members of House committees met in smaller groups. “Working groups” made up of a single lead member from each caucus and a member of the governor’s administration also workshopped policy proposals.
The majority of these meetings were not disclosed until they had already happened. The first COVID-19 response bill came out of these meetings, and was already agreed to by all four legislative leaders before it was even released to the public. Indeed, the bill language was not posted on the House website until just before the floor session to vote on the bill started.
As the bill moved through the House and Senate, it became clear that at least some legislators had not had time to read the bill in full. This was starkly illustrated by an exchange between Sens. Abeler and Hayden regarding a provision that was thought to be in the bill, but in actuality was not.
Since then, there have been some remote committee hearings conducted via Zoom, which provided some access for public observation and testimony. Yet people who do not have reliable access to a computer and/or internet connection, people with limited English ability and others may still face considerable barriers in this new remote setting.
Furthermore, it remains unclear how much influence leadership and the working groups still have over bill proposals. What is clear is that, at least until April 14, only proposals already agreed to by all leadership made it to a full floor vote. And implied, of course, was that the proposals would be passed without major opposition. Which they were. At times, it was not merely implied, but plainly stated.
This type of closed-door negotiation is not new, but it should not be considered normal. Legislative leadership has resorted to this type of secretive decisionmaking before, in nonemergencies. This is frustrating at the best of times, as everyone from rank-and-file legislators to advocates to the general public is left out of the process. No one knows what statements are being made, what agreements are being struck and what the underlying reasoning is.
In a time of crisis, it is even more troubling that policy agreements are being agreed to behind closed doors, without even a semblance of a public committee hearing. Crises can be, and have been, used to limit, infringe on and take away individual rights and liberties. Even well-meaning actions can have unintended consequences.
The governing actions and reactions of elected officials should not be hidden away from public view, and the actions of a few at the very top should not predetermine the outcome of the democratic process.
John Gordon is executive director of the American Civil Liberties Union of Minnesota.