Analysis of Five Hearings: Wins and Losses, but Illustrative of a Flawed Legislative Process

This post has been in development since Saturday and was intended to report on the House Energy Environment and Natural Resources Committee hearing on HB 6 Clean Future Act and HJR2 the Green Amendment. But I couldn’t finish that analysis before one hearing after another came up, warranting more analysis. Now I’ve caught up. And I think this post illuminates numerous serious flaws in the legislative process. Flaws that are fixable but will require deliberation and funding to achieve.

Join Our Legislative Strategy Huddle via Zoom, Weds., Feb. 2, 6-7 p.m. It’s Groundhog Day, but we promise the meeting won’t be repetitive and bewildering! This week we’ll have Miranda Viscoli, Co-President of New Mexicans to Prevent Gun Violence, to discuss gun violence prevention bills, in particular HB 9 Unlawful Access to Firearm by Minor, which looks good on the surface but is a deeply flawed bill that we hope will be amended. We will also discuss other important bills and get input from participants about their experiences so far during this 2022 Legislative Session. We will leave time for a discussion of the limitations to the legislative process itself and how it impedes complex, big-idea legislation from advancing. Register for the Huddle at this link.

Legislative Update: the wheels are turning at a furious pace and Saturday was packed with drama and unpredictable twists and turns

We have already reported on the House Energy, Environment and Natural Resources Committee(HENRC) hearing on the Hydrogen Hub, but one thing I failed to note was how frequently Chair Matthew McQueen commented about how 299 people were attending the Zoom and how 72% were opposed. McQueen clearly incorporated that presence in his thinking when he voted to table. So, showing up is important and so is speaking up. We have some really important hearings looming, so while it is important to send emails and make calls, it would also help if you all made an effort to attend by Zoom (not the Webcast), even if you do not plan to comment.

If you attend and are counted as being in the Zoom, your presence magnifies the voices of those offering public comment. And if you are in the Zoom and listening to public comment, you may find you are aching to comment yourself. So don’t watch hearings on webcast, join by Zoom. It makes a difference.

In a brutally long HENRC Committee that lasted over 8 hours, the committee heard HJR 2 Green Amendment and HB 6 Clean Future Act. The eight hours involved so many surprises, it was hard to keep track. And in that hearing, we experienced our first two losses, both retrievable.

Before I get to those details, I want to suggest that even if you have work to do, you can join a hearing by Zoom and work in the background. Indeed, I am writing this post while watching House Commerce & Economic Development, waiting for HB75 the Public Banking bill to be heard. You can work while you wait. I’d also say that watching the Zooms also exposes you to bills you may never have heard of, with interesting discussion of the pros and cons. Viewing hearings also illuminates the myriad flaws in the entire process, as this post relates.

The First Loss

In a stunning vote, Chair McQueen voted with the GOP to kill HJR 2, the house version of the Green Amendment. Given that two days earlier McQueen had voted to table HB 4 Hydrogen Hub, I thought he would be solid on the Green Amendment. But he cast the deciding “no” vote on the bill. But we can still get the Green Amendment on the ballot — bill sponsors wisely introduced a Senate companion bill, SJR2, which has not yet been scheduled for its first hearing in Senate Rules. Look for an action on this in an upcoming Alert.

Not to be lost in this was a brilliant presentation organized by bill sponsors, who emphasized that the Green Amendment would not generate frivolous lawsuits, citing Montana and Pennsylvania as not experiencing frivolous suits. Immediately after the presentation by bill sponsors and expert witnesses, opposing public comments were offered and their comments pounded the drum of their major, unsubstantiated but reiterated concern: that the Green Amendment would trigger a barrage of frivolous lawsuits that could stall even the most benign road construction. But these concerns are not reflected in the experience of the two states with the Green Amendment (Pennsylvania and Montana). I hope the bill sponsors and supporting advocates will develop and present clear irrefutable evidence that in Montana and Pennsylvania there has been no barrage of suits, no frivolous suits, and that the suits in Pennsylvania or Montana invoking the Green Amendment have challenged egregious disregard for the environment, not the creation a country road or the installation of a wind farm, as opponents charged.

When a “do pas” motion on the Green Amendment failed, with McQueen casting the deciding “no” vote, HJR 2 was dead. But thankfully, Green Amendment advocates will have another chance with the Senate version, SJR 2. After that vote, I switched over to House Consumer and Public Affairs to weigh in on HB 132, the bill to reduce installment loans to 36%.

Our only win

Rep. Susan Herrera did a tremendous job of laying out why HB 132 Interest Rates for Certain Loans was needed, using data that showed clearly how low-income New Mexicans are preyed upon by the industry, especially in indigenous communities. Public comment in support was also very strong. The vote on HB 132 was 3-2, along party lines, for a “do pass,” but not before Rep. Herrera amended it to remove the funding. Funding had been included so that Speaker Egolf could determine the bill to be germane. The money was for financial literacy, but it’s continued inclusion would have required a referral to House Appropriations and a very likely tabling from Chair Lundstrom. The introduction and management of this bill has been artfully orchestrated from the start. Kudos to the Speaker and Rep. Herrera

HB 132 now goes to House Judiciary, which could well include another amendment from Rep. Alcon and a 99% rate cap bill going to the House floor, as it did last year. But the Speaker sits on this committee and wields a good deal of influence on the other Dems in HJC. Perhaps he can prevent the committee from passing any 99% rate cap amendment that could be introduced and emerge from HJC. Retake will oppose this amendment vigorously, but we also know that the Senate can and likely will amend any bill that comes from the House with anything but a 36% rate cap. Assuming a 36% rate cap version ultimately passes on the Senate floor, it will return to the House, where Think New Mexico feels they have the votes to achieve concurrence…and then on to the Governor, for her signature. Be it so.

HB 6: Another loss, with 5 more hours of dispiriting debate

Back to Energy Environment & Natural Resources for hours more discussion, now focused on HB6 Clean Future Act. The discussion was not without highlights:

  • Stellar public comment from YUCCA (Youth United 4 Climate Crisis Action), perhaps the most compelling of the comments in opposition.
  • Comments from indigenous people that cut through the megatons of misinformation being tossed around by bill sponsors.
  • Comments from individuals who had clearly read the bill carefully and, while stating support for the intent of the bill, had come prepared with specific amendments to clarify and strengthen the bill. Retake’s bill summary here, lays out the specific need for amendments.
  • While the bill passed, it did so “without recommendation,” as weak an approval as possible. As one committee member noted, a “without recommendation” is like saying this bill is badly flawed but could possibly be fixed. I am not at all confident bill sponsors will make the needed amendments, so it will be necessary to sustain our opposition. As we outline in our bill summary and in two in-depth blogs into net zero, the policy projects future benefits from the unproven carbon capture technology. In short, the bill offers the state the ability to say they are making progress in reducing net zero emissions, an empty achievement that allows continued drilling and a failure to act, while celebrating empty “wins.”

Stay tuned for Alerts. The bill next goes to House Government, Elections & Indian Affairs.

Public Bank tabled, but some lessons learned

The Sponsor presentation was brief but compelling, with strong evidence presented as to how a Public Bank (HB 75) could magnify the state’s capacity to invest in infrastructure and local and state economic development initiatives while keeping our vast state funds out of the hands of Wall St. and in safer NM hands.

After the Sponsor presentation, a full hour of public comment in favor unfolded, and one speaker after another spoke convincingly of how a public bank could stimulate a range of rural and urban initiatives. I only wish that the process allowed more than one minute per speaker, as several of the examples, most importantly the rural and farm development, warranted more time to lay out not just that something could happen, but how the current national and state investment strategies were not available to these kinds of projects and a Public Bank could be. This is an important characteristic of the legislative process: the lack of time to be thoughtful. In a more deliberate process, a legislator or bill sponsor could have been allowed to stop the rural commenter and enter into dialog asking: why can’t the community banks or the state fund this work? The commenter could have laid out their experience being unable to attract loans from those sources and the missed opportunity resulting. But this process is more about a race to get things done, and while that may work for simple bills addressing simple problems, it doesn’t allow for serious discussion of bills like Public Banking, Hydrogen Hub, or Clean Future.

There is precious little back and forth between competing views, rather an hour of one minute snapshots of what might be possible, followed inevitably by an hour of one minute snapshots of why our economy would collapse or how community banks already meet the need. In the end, this allowed for opponents, who had the last word, to drive home how “this is a solution in search of a problem.” With a more deliberate process, the problem could be carefully teased out and the benefit of a public bank illustrated with specific examples. In the end, too often the side with an oversimplified but easily digestible phrase that captures a position, like “a solution in search of a problem,” wins the day.

As soon as the bill Sponsors finished, Republican Rep. Dow introduced a non-debatable motion to table. In 90% of the instances a successful tabling is the end of the line for a bill and an idea, especially in a time-constrained short session. That the motion is not debatable allows opposition to kill a bill without having to offer reasons or evidence and without being able to hear from sponsors and expert witnesses. In this instance, House Commerce and Economic Development committee members then voted to table HB 75, with the only Dems against tabling being Reps. Javier Martínez, Linda Serrato, and Dorreen Gallegos, and with Rep. Natalie Figueroa absent. But had she been present, the tabling measure would still have passed, as the margin without her was 6-3 to table, with all GOP voting “yes” and Chair Maestas following suit.

Two important lessons learned:

  • Early in the hearing Rep. Martínez tipped his hand as to his support and attributed his understanding of the bill and his support for it to a group of well-informed constituents who met with him several times prior to the session. When you combine a receptive, astute legislator with well-informed constituents, you have a context where a substantive, deliberate exchange of ideas can occur, which is impossible in a hearing.
  • Last year, the Alliance for Local Economic Prosperity (AFLEP), the lead advocacy group for Public Banking, was told to use the interim hearing process to flesh out the issues in a more deliberate manner and to make sure their allocation was in HB 2, the House budget. AFLEP did present in Interim Hearings, but those richer discussions seemed to have no impact in this hearing. What’s more, to get an allocation in HB 2, one must engage Chair Lundstrom, something that AFLEP tried to do, but apparently this conversation never happened. One takeaway from this is that the process of moving funded legislation forward gives House Appropriations inordinate power to determine what public policy advances and what doesn’t, an issue that reared its head in our next committee hearing.

House Energy Environment and Natural Resources today, Tuesday morning

I attended the hearing for HB 37 Community Energy Efficiency Block Grant, raising my hand to offer comment, but Chair McQueen limited support comment to 20 minutes and I was never called before the 20-minute limit had ended. No critique of the Chair intended, but there are three points to be made about this committee hearing that illustrates problems with the legislative process.

  • There was an amendment to the bill introduced, but the discussion of the amendment came after public comment. Commenters voicing support had to hope that the amendments did not fatally limit the scope and intent of the bill.
  • While 20 minutes of public comment is not sufficient time for the public to weigh in, Committee Chairs are forced to set relatively tight limits.
  • Reps. Strickler and Montoya both criticized the bill for already being in the budget (HB 2) saying that it suggests the bill is baked in, a done deal. The irony here is that if a bill is not in HB 2, the bill is dead. Rep. McQueen hit it on the head stating that his frustration is that he doesn’t really understand how best to influence House Appropriations or HB 2. This harkens back to the discussion of HB 75, the public banking bill. Reps Strickler described how House Appropriations budget development occurs largely behind closed doors, often with only a small subset of HAFC members attending and with no public report on their deliberations. Reps. Strickler and Montoya stressed their perception that the HB 2 process is far too removed, lacks transparency, and results in a small number of legislators with an inordinate influence over public policy via their control of the budget. HAFC would likely respond that public interim hearings are conducted to help shape HB 2, but the incorporation of that process into the resulting state budget is done behind closed doors and evidenced by Committee members’ expression of frustration with the process.

So we’ve identified a number of systemic problems with the legislative process. This is why Retake strongly supports HM 26 Study Legislative Session and Salaries, which would examine and make recommendations on the length and scope of the legislative session, legislative salaries, legislative staffing, and staffing pay. Hopefully that process would also lead to a thoughtful discussion of the legislative process itself, because paid legislators with paid staff would not address some of the most egregious systemic issues. Failing that reflection, we will continue to plod forward with a flawed process that lacks transparency and systemically precludes truly deliberate consideration of bills of significant importance. Thankfully, HM 26 has made it to the House floor and appears to enjoy broad support.

Hydrogen Hub: Interesting lack of activity to resurrect this bill

While I have only limited inside info, it is clear that bill sponsors have done nothing to “untable” HB 4 Hydrogen Hub. It is hard to believe that bill sponsors have given up. There are options for bypassing a tabling motion, primarily by inserting all the bill language into a “dummy” bill and assigning it to a more receptive committee path. I expect that this will be the path taken ..and very soon. Time is running out. We will be tracking this closely.

Once the session is over, we will publish a deep dive into systemic issues that mar the legislative process. That dive will begin in our Zoom Huddle tomorrow, Feb. 2, at 6pm, where we will devote time to attendees’ perception of what works and what doesn’t. Register for the Huddle at this link.

In solidarity and hope,

Paul & Roxanne

Categories: Local-State Government & Legislation

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4 replies

  1. what a useful summary and thank you so much. Thanks for the push to be present on the zoom. Do you know if there is a function on the zoom to declare whether you are for or against a measure without having to make a comment, so that the committee knows, as in your example, that 72% present were opposed to the Hydrogen Hub bill?

    • I’ve only seen that in EENR, as Matthew always does the poll. he announces it before going to public comment. Very useful i think.
      Do you have Brittney’s cell. I’d like to text her. email it to me if you have it. Don’t put it here. thanks.

  2. Zoom allows working people to participate with hearings happening in the background as you say Paul. Unfortunately we often cannot be available to make comments when the floor is open. A simple “support” or “oppose option would be informative to legislators.

  3. Excellent analysis. Thank you.

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