The Committee Process: Theories of Democratic Practice in Action within the Oregon Legislature

by Christian Britschgi

The purpose of the Oregon Legislature is to draft, amend, and enact legislation to service the interests of the general population, as well as that of elites, and specific interest groups.  By and large this function is performed by the various legislative committees within the two chambers that comprise the whole legislative body.  These legislative committees are smaller deliberative bodies made up of legislators, who are tasked with a specific area of public policy.  The public policy areas that committees are assigned to can be quite broad as in the case of the House and Senate Committees on Business and Labor, which deal with general matters of economic regulation and industrial relations. Legislative committees can also have a very narrow focus, such as the Joint Committee on Implementing Measure 91, which is tasked solely with crafting regulations relevant to implementation of the recent marijuana legalization initiative.  Given the vast array of legislative functions that these small deliberative bodies perform, the complex, almost byzantine rules that govern their procedures, and the position they occupy within the structure of the legislature and the state government as a whole, legislative committees contribute a great deal to the final outcome of Oregon’s political process.  It is within these committees that the vast array of political elites, private interest groups, and citizen activists which make up Oregon’s body politic are able to have a direct impact on the bills that are eventually enacted into law.  Every statute and proposal that has ever been passed by the Oregon legislature and a good number more that have not been were scrutinized, amended and transformed by the various committees they were assigned too.  As such much can be learned about how Oregon’s democracy functions in practice by studying the operations of its legislative committees.  

In order to best understand how the Oregon legislature’s numerous committees affect the democratic practices of the state government, it is important to refer to the well developed theoretical work done in this area.  Of the many different theories and philosophies of democratic practice, three are of primary relevance to Oregon’s legislature.  These are the theories of elite democracy, pluralistic democracy, and participatory democracy.  All three work to shape different aspects of the committee process, and as such it is crucial to define each.  The elite theory of democratic practice posits the citizen’s role in crafting public policy as secondary (Public Opinion; Part 1) to the overall democratic process.  Rather it is elites who retain that primary initiative and competency to handle the specifics of legislation.  These elites then in turn are incentivized to legislate in the public interest through the competitive electoral process, where citizens are expected to broadly define the type of governance they desire.  Pluralist theory (or interest group theory) likewise sees a secondary role for the average citizen in the democratic process (Public Opinion; Part 1).  Rather than emphasize the role of elites however, pluralists see interest groups and civil society organizations as the primary vehicles of democracy.  Under this theory citizens rely primarily on interest groups, who possess the necessary time, networks, and understanding of the political process to effectively represent and advocate for their specific public policy concerns.  In contrast to both the aforementioned theories is the participatory theory of democracy, which views the direct action and input of citizens as the primary and most effective means of political action (Public Opinion; Part 1).  Under participatory theory, the input of political elites and specified interest groups should be continuously responsive to the input of regular citizens throughout the entire political process, not just during elections.       

The tenants and dynamics of all three of these theories can be witnessed at one point or another within the committees of the Oregon House and Senate.  The very presence of a representative body with its own complex set of rules and procedures, most of which are ill-understood by the public, allows for political elites to shape and manipulate the process for their own particular ends.  Which legislators are assigned to which committee, as well as to where a particular bill is assigned is in large part influenced by the considerations of party leaders, political analysts, and House and Senate Caucus organizations that make up the bulk of Oregon’s political elite.  However the division of committees into particular competencies and the networks of interest groups and lobbying efforts that concentrate around them in an attempt to insert the preferences of their members is deeply reflective of pluralist democratic practice.  In turn the requirement that committees must hold a public hearing for each individual bill that it considers, as well as the prior publishing of committee agendas and their broadcasting on the internet and television would seem to open up avenues for average citizen engagement, as dictated by participatory democratic theory.

Given the complex interaction of these various forms of democratic practice within the Oregon legislature and its committee process, which best represents the actual functions of this state’s democracy?  Are political elites the primary decision makers, or does that honor rest with the various interest groups represented at the capitol, or even the citizen body itself?  This paper will attempt to shed light on this question through a rigorous examination of the Oregon Legislature’s committees.  To effectively do this, the legislative committee must be placed within the context of the overall legislative process, so its function and significance can be fully understood.  From there, this paper will examine the various component parts of the committee process, from public hearings to work session, as well as the rules which govern them, so as to fully describe the ways in which a bill can be changed and amended in the process.  Finally this paper will analyze the membership of each committee, how members are appointed, and considerations that go into those appointments.  Throughout reference will be made to particular bills and specific case studies, so that the discussion of more abstract theories can be seen in the context of the very concrete realities of Oregon’s democratic process.

To fully understand the importance of the legislative committee and how it represents the various elements of Oregon’s democracy it is important to place the committee in context of the overall legislative process.  Before a bill is considered by a committee, it must first undergo several procedural steps.  Bills begin their life as legislative concepts drafted by individual legislators, or by lobbyists and citizens who then seek out legislators to sponsor it.  Once this legislative concept is drafted and sponsored, it is then submitted to the Office of Legislative Council, where it is rewritten in order to conform to the appropriate legal style.  Following its redrafting by the Legislative Council, this legislative concept is then submitted to the Chief Clerk of either the House or Senate who then assigns it a number, officially making it a bill.  The bill is then referred to the Legislative Fiscal and Revenue Offices, so that overall fiscal impact of the bill on governmental appropriations can be determined.  At this point it is then distributed to members of the relevant legislative body for First Reading, where the bill is read on the floor for all members of the chamber to hear.  Following first reading, the bill is next given to the chamber’s Presiding Officer, either the Speaker of the House or the President of the Senate, who must then pass the bill onto a committee of their choosing within seven calendar days.  It is important to note that a bill must pass through committee twice, once in its camber of origin, and once in the subsequent chamber.

Several considerations influence where the presiding officer sends the bill, each of which is reflective of the theories of democratic practice previously discussed.  Technical considerations and matters of competency obviously play a large role that decision.  The large majority of bills that move through the Oregon Legislature deal not with highly charged political matters.  Rather most are concerned with small changes to the administrative functions of the state government, and as such attract only the attention of very specific governmental and private interest groups that will be directly affected.  When such bills come before the Presiding Officer they are likely to send it to the most compatible committee, where legislators and the attendant lobbying groups are able to bring their technical expertise to bear.  In this instance the referral practice is emblematic of the pluralistic theory of democratic practice; as interest groups are heavily relied on transmit the relevant members.

One such example is the HB 3456 (OregonLive: Bill Tracker) which was making its way through the House of Representatives in April of this year.  The purpose of the bill was to bring Oregon into compliance with the federal Patience Protection and Affordable Care Act on the issue of state compensation of midwifes for services they provide incidental to a delivery.  It was sponsored by Rep. Jim Weidner, a member of the House Committee on Health Care, who had worked closely with The Oregon Midwifery Council to craft the law.  After First Reading the bill was quickly assigned to the Health Care Committee, for largely functional reasons.  Given Rep. Weidner had worked closely with the affected parties in drafting the bill, he was best positioned to help guide it through the Healthcare Committee (of which he is a member), and accurately address the questions other Representatives on the Committee might have of the bill.  Furthermore, the Health Care Committee has among its members several doctors, and concerns itself exclusively with matters of health care policy. By virtue of their continuous work on health care policy these Representatives were in the best position to evaluate the technical aspects of the bill.  Moreover these Representatives had well developed relationships with network of health care policy interest groups to whom they could refer specific questions and concerns, as pluralistic democratic practice requires of them.

Bills are also assigned to committees not out of concern over that committee’s particular competency, but rather out of purely political considerations. For instance, the recent and controversial Senate Bill 941(OregonLive: Bill Tracker, SB 941) which mandated background checks for the private transfer of firearms was passed out of the Senate Judiciary Committee, but upon entry into the House was referred to the House Committee on Rules.  This referral, being primarily political is this reflective of the elite theory of democratic practice.  Under elite democracy it is expected that established political actors will use their knowledge and experience of the political system in order to implement their policy aims, which in turn should reflect the broad preferences of voters.  The Oregon Democratic Party won a large victory in the 2014 General election, increasing their majorities in both chambers of the Oregon legislature.  Democratic Party leadership in the legislature took this electoral success as a mandate from the electorate to implement a number of coveted liberal policy goals.  Among these goals was an expansion of state gun control laws, of which the private transfer background checks in SB 941 were a large part.  However legislative maneuvering by party elites was required in order to make good on this perceived mandate.  While SB 941 was a Democratic sponsored piece of legislation, several Democratic Representatives were not fully in favor of it.  Among them was Representative Jeff Baker, Chairman of the House Judiciary Committee, who eventually voted against the measure along with two other House Democrats on the House Floor.  Had SB 941 been referred to the Judiciary Committee, as technical competency would seem to dictate, Rep. Baker along with the four Republican members of that committee could have quite easily killed the bill or otherwise amended it so as to remove any substantive reference to background checks.  In a personal interview with Jameson Gideon, Chief of Staff for Representative Jim Weidner (May 15, personal interview), Mr. Gideon asserted that Speaker Kotek was eager to prevent such a result by assigning the bill to a different committee.  Senate Bill 941 thus passed out of committee and onto the House Floor where enough Democratic support existed to ensure its passage.  That the fate of such a centerpiece of the 2015 majority’s legislation could have been killed by a different committee assignment, despite a majority of Representatives being in favor of the SB 941 serves to illustrate how significant parliamentary considerations and maneuvering by political elites within the committee process can have on the final outcome of legislation.

Once a bill is referred to a committee by the presiding officer, the committee chairperson must schedule a public hearing for it.  Public hearing are sessions held by the committee where testimony from experts and average citizens alike is allowed.  It is through public hearings that citizens are given the opportunity to directly address legislators with their thoughts and concerns on a bill while it is still subject to change. Prior to the holding of public hearings, the committee process is almost completely driven by elite and interest group democratic practices.  However by allowing citizens the mean of direct participation, elements of participatory theory come into play.  In fact, with the possible exception of Oregon’s ballot initiative process, public hearings are perhaps the most participatory aspect of the entire legislative process.  Many procedural rules have been implemented in order to safeguard that democratic nature of the public hearing.  For instance, the public is required to be given 72 hours notice of when a public hearing is to be held.  This enables citizens and activists from all over the state have some chance of preparing testimony and substantively participating in the committee process.  Likewise this guards against overzealous elite manipulation of the committee process, by ensuring that public hearings for unpopular bills are not scheduled with such short notice so as to make public participation impossible.  Further safeguards for genuine and representative public participation are included in a provision dictating that a committee is required to hear from those who traveled more than 100 miles on the day of the public hearing.  In this way, citizens from across Oregon have a better chance of being heard on bill of relevance to their interests.  Both these provisions work to ensure that the procedural rules of the committees do not overly burden the ability of average citizens to have their voice heard.

Even when these avenues for citizen participation do not directly change the outcome of a particular bill, as is often the case, they can still serve to increase the participatory nature of Oregon’s democracy.  Once again the case of SB 941 is illustrative of this.  The public hearings held for that bill attracted a large amount of attention from gun owners and advocates of gun rights.  One the days that the House and Senate held their public hearings the capitol building was nearly overwhelmed with these opponents of the bill, who quite colorfully and vociferously voiced their opposition to it.  Though this did not change the final legislative outcome, it was still an invaluable opportunity for supporters of 2nd amendment rights to organize, and shape public perception of the bill as it passed through the legislature.

When public hearings do change the shape of a bill before committee, it is ironically often reflective of pluralistic governmental practice.  Legislators, being subject to period democratic elections, do not wish to unduly upsetting constituents.  Therefore they are typically willing to make minor changes to their more technical bills at request to prevent that outcome.  One such example is HB 3455 (OregonLive: Bill Tracker HB 3455) whose purpose was to place a representative of rural fire departments on the Oregon Parks and Recreation Department Advisory Board, which is responsible for the purchase of all-terrain vehicles (ATVs).  During the public hearing on that bill, two members from the little known Oregon Off-Road Vehicle Association testified in opposition to it.  They were concerned that some of the specific language about adding a fire chief to the board would make providers of Off-Road Vehicles potentially liable were someone to start a fire on state recreational lands with an ATV.  Members of the committee promptly had Legislative Council draft an amendment changing that language, so as to leave no ambiguity. While such swift action does not occur with every bill, it does demonstrate how by giving the public a forum to comment, committees allow for great participation of average citizens as well as the focused interest groups who transmit their concerns to legislators.

Oftentimes public hearings and their democratic features are complimented by informational hearings.  Informational hearings follow much the same format as public hearings where members of the public, experts, and representatives of particular interest groups are able to give testimony before the committee.  However, informational meetings are not governed by many of the procedural requirements of public hearings; the major distinctions being that committee members can decide to accept only invited testimony.  This allows for legislators to work closely with like-minded members of the public in order to present the best possible case for a particular piece of legislation.  Lobbyists and activists are invited based on their political prominence and ability to make their case coherently.  Often times their testimony is discussed in concert with the representative who invited them, so as to avoid needless gaffs or inconsistent messaging. Experts in the particular field are also sought after to give the case for a bill added intellectual credibility.  Average citizens can also be invited should a legislator feel their individual experience serves to highlight the merits or defects of a particular bill.  Given these features, informational hearings are an interesting blurring of all three major democratic practices.  The timing of the hearing and the composition of the testimony is the result of the elite determinations of committee members.  However in order for these committee members to assemble a compelling panel of testifiers, they must rely on a mix of interest group representatives for technical and expert advice, as well as members of the general public who can represent a desired aspect of public opinion.

The informational hearing conducted by the House Committee on Business and Labor on April 13, 2015 (OLIS, Business & Labor Agenda) in regards to the various minimum wage bills working their way through the house is illustrative of how elite, pluralistic, and participatory elements all can interact within the same committee process.  Representative Nosse, who sits on the committee, and was the sole sponsor on HB 2009 (OregonLive Bill Tracker, HB 2009), arranged a broad panel to testify in favor of the bill.  Among those invited at his behest were low wage earners Erin Zygaitis and Kasil Kapriel, who spoke as representatives of those people that are intended primary beneficiaries of the minimum wage increase.  Following that was testimony from Tom Chamberlin of the AFL-CIO and Stephen Michael who represented the small business lobby Main Street Alliance.  By inviting such a variety of lobbyists and average citizens, Rep. Nosse was able to demonstrate the large variety of individuals and special interests (both business and labor) that supported his bill.  The Republican members of the committee in turn had their own slate of panelists to contest the passage of HB 2009.  Among the invited addressees to the Committee were owners of small businesses who asserted that an increase in the minimum wage would force them to close down. Complimenting their testimony were representatives from the NFIB and Oregon agriculture who drew attention to the potential for increases in unemployment and capital flight should the minimum wage be increased.  While not quite as direct or participatory as public hearings this informational meeting, and ones like it also serve to promote the democratic character of the committee process.  At few other times are affected parties able to expound on their case for or against a bill in the presence of legislators and the public, and readily deal with arguments and critiques committee members present to them.

Following public testimony and informational hearing, committees must then hold work sessions before the bill passes out of committee.  Work sessions are the final step in the committee process, and just as the process begins as a primarily elite and interest group driven affair, so too does it end.  Work sessions are primarily intra-committee affairs where legislators debate the various amendments proposed, in light of the testimony they have received during hearings and outside of committee.  Amendments can be submitted to a bill by any legislator, regardless of their position on the committee.  Lobbyists and interests groups without a personal connection to the committee are thus still able to have their particular proposal considered.  However a sitting member of the relevant committee is still required to move the particular amendment during the work session, keeping it a relatively elite driven affair.  As with the referral process, work sessions incorporate a mix of political and technical considerations.  In the case of the aforementioned ATV bill before Business and Labor, many amendments raised during committee testimony were added to the bill by a unanimous vote, and then the bill as a whole was sent out of committee to the House Floor with a due pass recommendation.  However more controversial bills, where the majority party is divided on the issue need not follow the same course.  In the example of HB 2009, the Democratic caucus in the House was not unanimously in favor.  Majority Leader Val Hoyle in particular had stated opposition to it as written (Oregonian, Minimum Wage Fight, April 13).  Therefore during the committee during the work session voted to send the bill not to the House floor, but rather to the House Committee on Rules, where Rep. Val Hoyle presides as chairperson, and is thus able to exercise greater influence over its final form.  In this way again the intra-elite bargaining process serves to dominate the work session aspect of the committee process at the expense of its pluralistic or participatory elements

So far this paper has analyzed the importance of committees on the legislative process by examining the ways in which the structure and procedures allow for the input of average citizens as well as special interests, and elite decision-makers.  However that analysis would be incomplete without examining how legislators are appointed to them, the advantages they can secure from being on particular committees, and the effects this has for the three theories of democratic practice discussed.  In both chambers of the Oregon Legislature, the Presiding Officer is given the power to appoint legislators to particular committees, as well as determine chairs and vice-chairs. In addition, House and Senate rules stipulate that each committee is composed of members of both majority and minority parties, and that that composition reflects the ratio of the parties in the whole chamber.  As previously discussed, committees attract the  lobbying efforts of special interest groups on the basis of their particular competency, and work closely with those committee members in order to further the interests of the lobby they represent.  This dynamic proves exceedingly significant for legislators when examined in light of the relative organizational strength and financial resources of particular lobbies.  Being placed on a committee that attracts lucrative lobbying interests allows legislators to use that position and the working relationship they develop with those lobbies to attract campaign finance contributions.  As a result party leadership considerations of which legislators are to be a appointed to a particular committee are in part determined by which legislators can best understand the concerns of these interest groups, and incorporate these concerns into the bills coming before the committee.

The membership of the House Committee on Health Care serves as a prime example of this.  Health care industry contributions in the 2014 general election totaled $4,592,321(followthemoney.com, Industry Contributions) and members of the House and Senate Committees on Health Care were the primary recipients at the state level.  Among the members on the House Committee on Healthcare is Representative Buehler, a Doctor in private life.  As a medical practitioner, Representative Buehler is particularly knowledgeable about the issues faced by his colleagues in providing their services to patients.  Moreover he is well networked physicians in his district and across the state.  Consequently he has over his past several legislative campaigns been able to draw over $200,000 worth of campaign contributions from the health care industry, most of which was made by individual practices (followthemoney.com, Knute Buelher, 2014 election contributions).  Through this dynamic, pluralistic practices of democracy can have a large impact on committee membership.  Representative Buehler’s ability to draw campaign donations from the medical community encourages the Republican party leadership to ensure his place on the Health Care Committee, as his ability to win re-election on the Republican ticket is more likely with those campaign dollars.

The legislative committees of the Oregon House and Senate play a major role in determining which ideas for public policy are eventually adopted into law.  It is within these committees that innumerate interests of citizens, lobby groups, and legislators themselves are voiced and considered.  The position of committees in the legislative process, as well as the rules that govern their internal mechanisms work to ensure that these various political actors are constantly colluding and conflicting within them in an attempt to see their preferred public policies are enacted into law.  The referral process allows presiding officers and the party apparatuses they serve to avoid roadblocks in the passage of controversial bills, or otherwise slow the passage of undesirable ones. Public hearings and informational meetings allow for average citizens and vested interests alike to take a hand in directly shaping the early nature of proposed bills.  Following that work sessions serve as a forum whereby the technical and political aspects of a bill can be debated and transformed through intra-member bargaining.  Lastly committees also help their members service their campaign-time needs through their ability to pass high-profile bills and network with possible campaign contributors.

Throughout this fractious process different theories of elite, pluralist, and participatory democratic practice can be seen in operation.  Which one best speaks to the nature of the committee process will remain a subject of some debate. However from the elements analyzed in this paper, it would appear the process is primarily one driven by the concerns of interest groups and political elites.  Public participation is possible, and at times mandated.  However the avenues provided for citizen engagement in the committee process are often the least effective at provoking change to a bill.  Many features of the committee process make this so.  Complex procedural rules allow a great deal of room for the political maneuvering party leadership and political elites.  The sheer number of bills and their often technical nature often serve to attract the interest of interest groups that can afford to remain constantly engaged.  Whether the existence of the committee process as an elite and interest group dominated affair is desirable or not is beyond the scope of this paper.  However it is suffice to say that the legislative committees, much like the overall democratic process, are what voters make of them.  More open and effective participation of the public in the direct crafting of legislation can be achieved, either increased engagement through the currently existing channels, or though changes to made by reform-minded legislators pressured by public opinion. As in any free democratic system, the ultimate choice remains with the voters.

Bibliography

  • Clawson, Rosalee A., and Zoe M. Oxley. Public Opinion: Democratic Ideals, Democratic Practice. Washington, D.C.: CQ, 2008. Print.
  • Oregon Live: Your Government (Bill Tracker) The Oregonian

http://gov.oregonlive.com/bill/

  • Denis C. Theriault | The Oregonian/OregonLive. “Minimum Wage Fight, at Least for a Day, Surges to Prominence in Oregon Capitol.” Web. 12 June 2015.
  • “Election Overview” Home. Web. 12 June 2015. National Institute on Money in State Politics

            http://www.followthemoney.org/election-overview?s=OR

  • Gideon, Jameson. Personal Interview

May 15, 2015

  • How an Idea Becomes Law. Oregon State Legislature. 2015.

https://www.oregonlegislature.gov/citizen_engagement/Pages/How-an-Idea-Becomes-Law.aspx

 

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