Sine Die Pt. 1b: Devilish Detail

March 1st, 2014 at 9:35 am by under Latest Posts

This is a follow-up post to Sine Die Pt. 1: Harper’s Gamble .

Last second legislating has its benefits and its pitfalls.

The sense of urgency can get important things that would normally take weeks finished in mere minutes. But in a rush, mistakes can happen. And with legislation even small mistakes can have major consequences.

This year it was a massive amendment to the lottery scholarship bill that drew a lot of attention. As I wrote about on this blog, Rep. Jason Harper, R-Rio Rancho, made an aggressive move to substantially change a massive lottery solvency fix.

Harper’s change did a lot of things but a significant error in the language of the amendment, now the bill on Governor Martinez’s desk, would have huge unintended consequences if its not fixed. Sen. Michael Sanchez, D-Belen, sounded the alarm in a press release from the Senate Democrats released Friday.

The issue in the amendment lies with the difference in the bill between “semester” and “program semester” when it comes to the lottery scholarship program.

In the bill, program semester is specifically defined as such:

“program semesters” means those semesters for which a legacy or qualified student may receive a tuition scholarship, but does not mean the first semester of college

That makes sense as a definition because the lottery scholarship isn’t awarded to incoming freshmen during their fall semester. Many students take advantage of a “bridge” scholarship to close the gap. Second semester freshmen are then eligible for lottery scholarships.

Harper’s new amendment changes a section in the bill:

(2) a qualified student who is not a legacy student is eligible to receive the tuition scholarship for a maximum of seven program semesters, starting in the second program semester, and in an amount determined pursuant to the provisions of Section 4 of the Legislative Lottery Tuition Scholarship Act.

The use of “second program semester” is in a couple of places in the bill’s amended language. But remember, “second semester” and “second program semester” work differently because “program semester” is defined differently in the bill. It actually means a student’s sophomore year (i.e. the second semester they “qualify” for the program).

Under the language, freshmen entering school in the fall 2014 wouldn’t be able to get a lottery scholarship until fall 2015.

“That wasn’t what I intended the bill to do,” said Rep. Harper in a phone interview Friday afternoon.

Harper blamed the problem on a drafting error by Legislative Council Service, something the group’s director Raul Burciaga confirmed.

“I apologize to Representative Harper,” Burciaga told me over the phone. “It was an error on our part.”

But Legislative Council Service didn’t have a lot of time to draw up that amendment. Burciaga told me the request was made with less than 24 hours to go in the session.

In an interview with me Friday afternoon, Sanchez said using LCS as an excuse doesn’t cut it.

“It’s unacceptable,” Sanchez said.

Sanchez says lawmakers have the ultimate responsibility to understand the bill they’re trying to change and the practical effect of any amendments they propose. He also criticized the practice of making major changes to important legislation at the last second, something he says has “backfired” two years in a row.

Although Sanchez has vowed to quickly introduce the necessary clean-up language next session and has written to universities asking them to back off on charging tuition to lottery-eligible until the legislature sorts things out, the solution may come much sooner.

In a sense, Harper may get saved from this major technical ordeal by a lucky break and the fourth floor.

Constitutional language on the line-item veto makes Governor Martinez’s power very broad in some cases, perhaps even more broad than most lawmakers themselves may have realized.

Here’s the key part in Article IV, Section 22 of the New Mexico Constitution, the section that spells out veto authority:

The governor may in like manner approve or disapprove any part or parts, item or items, of any bill appropriating money

Because the lottery bill appropriates $11 million to shore up the scholarship fund this fiscal year, the governor’s office is asserting Martinez’s ability to fix the problem by  subtracting language in all sections of the bill and not just the section dealing with that appropriation.

Practically that means that any bill spending so much as a dollar can have entire sections axed if the governor so desires.

Governor’s spokesperson Enrique Knell says it’s unclear what the exact solution will be, but believes removing a few words can repair the problem Harper’s amendment caused and ensure students themselves won’t be affected. Sanchez remained skeptical Friday afternoon that a fix would be that easy.

After the possibility of a line-item veto solution became apparent, Harper went on the offensive when he spoke to me later Friday, accusing Sanchez and Senate Democrats of playing politics and prematurely trying to scare families instead of finding a solution.

But the plain truth is that the mistake wouldn’t have been there in the first place but for the rushed nature of the lottery bill, a problem both chambers should share responsibility for.

The Senate waited until there were less than two days in the session to pass a massive lottery solvency fix the House hadn’t fully examined. The House waited until the last hour to substantially change it.

The only reason it appears that it won’t lead to disaster for New Mexico students is a constitutional provision Harper could not have possibly been counting on before the mistake became apparent.

It’s an unexpected safety net that may not be there the next time the Legislature leaves vital proposals in limbo until the final seconds of the session.

One Response to “Sine Die Pt. 1b: Devilish Detail”

  1. James Jimenez says:

    Very insightful post on a very important aspect of lawmaking. You are correct that attempting significant changes to such a critical piece of legislation at the very last hour was not wise. Shame on Rep. Harper for throwing the staff under the bus and not accepting responsibility for his own legislation. Harper tried a gambit and it backfired on him, maybe he’ll learn something from his hasty actions.

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