This past week, I heard a bill introduced in the Government, Military and Veterans Committee by Senator Justin Wayne. He believes the executive branch of our state government should not testify against bills introduced in the Legislature. He believes people testifying on behalf of executive branch agencies should testify in the “neutral” capacity and not express an opinion for or against the bill. In his view, the executive branch is bound by oath to follow the laws passed by the Legislature. It calls into question their willingness to faithfully follow the laws and encroaches on the constitutional sovereignty of the legislature as a separate branch of State government. I think Senator Wayne makes a valid point with his proposal.

A common reason a state agency might testify against a bill is that the bill in question will cause them more work. I was given a recent example of this by the Nebraska Department of Agriculture with my state meat inspection bill. States all over the country are passing state meat inspection programs to help make it easier to expand slaughter capacity in the states, and also provide much-needed economic development to small rural towns. Unfortunately, the Department opposed my bill.

There are other ways for a state agency to kill a bill. Agencies are given the opportunity to submit “fiscal notes” predicting the financial impact of a bill on their operations. This is basically a price tag that is supposed to indicate the fiscal impact on the state from running a particular program. In the case of my bill, I believe the fiscal note was intended to frighten the senators on the committee with a shocking price tag. We call this “death by fiscal note.”

But there is a significant difference opposing a bill in a hearing and submitting an inflated fiscal note. When an agency provides operational information and financial projections in a fiscal note based on their expertise, I think that is within their designated mission, even if I think their numbers are incorrect. In the Legislature, we can choose to trust that information or not, and we also make the policy decision about whether a bill is worth the price tag. 

However, when an agency testifies in opposition to a bill, something important happens. Under the legislative rules, a bill cannot be fast-tracked as a “consent calendar” item if it received any opposition in the public hearing. This practice is really a preemptive veto by the executive branch. I support the power granted by the Nebraska Constitution to the governor to veto legislation. I believe that veto power is an important check within our system of government. However, I do not think the executive branch should be able to veto bills until after they are presented to the governor. I think Senator Wayne’s idea deserves more discussion.