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Mike Hilgers

Sen. Mike Hilgers

Speaker of the Legislature

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A reminder that today at 3:00 p.m. is the deadline for senators to hand-deliver to my office a letter to request a bill for placement on our first consent calendar. Letters received after 3:00 p.m. today will be considered for our second consent calendar.

Also a reminder that Monday we will convene at 10:00 a.m. which will continue to be our start time for the first day of our work week.

As part of my endeavor to provide early notice to the body of the bills which will be debated to allow senators time to prepare, I am providing the body with a list of the priority bills which I plan to schedule sometime during the following week. This list is not necessarily inclusive of all the bills which may be scheduled as more bills may be added if time available warrants the need for additional scheduling. Also, as a reminder, being listed on the agenda for next week is no guarantee that the bill will be taken up on the floor next week.

These bills are listed in numerical order and do not indicate the order they will appear on the agenda or which day of the week each bill will first appear as I am still considering the specific schedule:

LB 40 (Groene) Adopt the Nebraska Rural Projects Act
LB 156 (Wayne) Adopt the Municipal Inland Port Authority Act
LB 215 (Hughes) Change 911 service surcharge provisions
LB 273 (Lowe) Change provisions relating to youth rehabilitation and treatment centers
LB 281 (Albrecht) Require child sexual abuse prevention instructional programs for school students and staff
LB 390 (Murman, at the request of the Governor) Provide for credentials based on reciprocity and change requirements for credentials under the Uniform Credentialing Act
LB 528 (Walz) Provide, change, and eliminate provisions relating to education
LB 529 (Walz) Change provisions for the distribution of lottery funds used for education, transfer powers and duties, create new acts and funds, and change education provisions
LB 544 (Wayne) Adopt the Urban Redevelopment Act and provide tax incentives
LB 572 (Halloran) Change provisions of the Livestock Brand Act
LB 639 (Day) Adopt the Seizure Safe Schools Act
LR 29 (Cavanaugh, M.) Provide for appointment by the Executive Board of a special committee to be known as the Eastern Service Area Child Welfare Contract Special Investigative and Oversight Committee of the Legislature

Next week the debate on LB 529, the Education Committee priority bill distributing lottery funds, will be the first bill on the agenda for Wednesday. LB 528, the other Education Committee priority bill, an education technical bill which includes the provisions of two additional bills, will be scheduled for Thursday debate along with any final reading we have.

Last, I currently anticipate that next Thursday the Appropriations Committee will send the budget to the floor. If so, then I currently anticipate taking up the budget the following week.

On Monday we will begin convening on the first day of our work week at 10:00 a.m. Of the 58 bills that have been designated as either a senator or committee priority bill, 35 bills are still in committee. By the end of this morning when all priority bills will have been designated, that number could significantly increase. Given the number of designated priority bills which are still in committee, I plan to adjust the schedule on Monday to provide time in the afternoon for committees to hold an executive session. We will adjourn on Monday after our morning session. In order to accommodate some executive session time for all committees, I am asking two-day committees to utilize the time between 1:00 p.m. and 2:00 p.m. for holding any needed executive session so that the three-day committees may hold an executive session beginning at 2:15 p.m.

On Monday morning we will pick up with the bills left at the end of Thursday. Added to Monday’s agenda will be Senator Aguilar’s priority bill, LB 371, which would allow games of chance under the Nebraska Racetrack Gaming Act at state, district, and county fair locations, and one of the Agriculture’s Committee priority bills, LB 324. LB 324 was introduced by Senator Brandt and changes provisions of the Meat and Poultry Inspection Law.

On Tuesday I intend to continue with priority bills left unfinished from Monday’s agenda, and add LB 88, Senator Morfeld’s priority bill relating to free speech rights of student journalists and student media advisers. On Wednesday, I plan to schedule LB 561, a General Affairs Committee priority bill that changes provisions of the State Racing Commission and the Nebraska Racetrack Gaming Act. The committee amendment to the bill includes an amended version of LB 560, the enabling legislation for the law created by Initiative Law 2020, No. 430 and 431.

Thursday, I intend to schedule time for the “Christmas Trees” that have been reported out of committee. I plan to schedule LB 320 and LB 507. LB 320, Senator John Cavanaugh’s priority bill, changes provisions of the Landlord and Tenant Act. In addition to the underlying bill, the committee amendment includes portions of six other bills. LB 507, one of the Natural Resources’ Committee priority bills, includes the provisions of four other bills in addition to the underlying bill which prohibits the use of treated seed corn in the production of agricultural ethyl alcohol in certain circumstances. My hope is that the extra notice allows the body time to review the bills that are included within the carrying bill and to avoid surprises when those bills are debated.

The deadline for the designation of committee and senator priority bills has been extended from Thursday to Friday, March 12, prior to adjournment.

The deadline for submission of a speaker priority request letter continues to be tomorrow, Wednesday, March 10, prior to adjournment.

It is my intention to utilize a few smaller, more frequent consent calendars during the remainder of the session to allow the body to address some non-controversial, non-prioritized bills in an efficient manner. This memo serves as a guideline to the criteria I will rely upon as I evaluate the consent calendar requests from members.

As a reminder, the procedures for consent calendar are outlined in Rule 5, Section 6 of our Legislative Rules. As stipulated in this rule, only bills advanced out of committee with no dissenting votes are eligible for consent calendar.

The consent calendar procedures outlined in the rules provide that bills on consent calendar may be removed from the agenda by the written request of three or more senators. Additionally, the rules provide that bills remaining on consent calendar will be voted on at the expiration of 15 minutes or when debate ends, if less than 15 minutes. Similar to cloture, the consent calendar rule provides for a vote to be taken on the pending matter(s) under discussion, followed by a vote on the advancement of the bill.

Because our rules provide for a guaranteed vote on consent calendar bills, I will select bills for which the debate is anticipated to take less than 15 minutes. To that end, I have established additional guidelines pursuant to my authority in Rule 5, Section 6(a). A bill that fails to meet each of the following guidelines will not be placed upon a consent calendar.

1. Bill is non-controversial. Generally, bills do not fit consent if anyone testified at the committee hearing in opposition, and a committee amendment does not take care of the testifier(s)’s concerns.

2. Topic the bill opens up is non-controversial. For example, a bill which makes a small change implicating a charged social issue is not consent material. The bill itself may not be controversial, but the topic opened up is controversial. This judgment shall be made at my sole discretion.

3. Bill does not add a lot of changes. A bill adopting a new act or making several changes to an existing law is generally not consent material.

4. Bill does not have a general fund impact. Bills which appropriate general funds resulting in a net loss, bills resulting in the reduction of revenue to the General Fund, and all tax expenditure bills are not consent material.

5. Bill has been reported to general file before a letter of request has been delivered to my office.

Although consent calendar bills may have a committee amendment, consent calendar bills will not be allowed to be used as a vehicle for other bills. While I cannot prevent the body from adopting amendments to a consent calendar bill, if any amendments are adopted on the floor which add new subject matter, the bill will not be placed back on the agenda. Floor amendments which clean-up the original provisions of the bill are acceptable.

On Monday, March 15th, I will begin accepting consent calendar request letters from the principal introducer of a potential consent calendar bill. The cutoff date to have a bill considered for the first consent calendar will be by 3:00 p.m. on Thursday, March 18th. I will provide deadlines for additional consent calendars as I make plans for scheduling. If you have a bill which you believe meets the eligibility criteria for consent calendar, please hand deliver a letter to my office prior to each deadline I provide.

I will evaluate each request and develop my list of bills to place on consent calendar. Pursuant to past practice, the list of consent calendar approved bills will be published on the agenda prior to the day we take up consent calendar.

Thursday, March 11, prior to adjournment is the deadline for the designation of Committee and Senator Priority Bills.

Wednesday, March 10, prior to adjournment is the deadline for a senator to submit a letter to the Speaker requesting designation of a bill as a Speaker Priority Bill. Speaker Priority Bill designations will be announced prior to adjournment on March 16.

Today I want to share with you some details on the Legislative Schedule as we move forward.

In addition to scheduling morning floor debate on Tuesday, February 16, I plan to schedule morning floor debate on Tuesday, March 2. The afternoon of both days will be devoted to public hearings.

The mornings of March 9, 10, and 11 will be floor debate with the afternoon available for public hearings and/or executive sessions. Friday, March 12 will be a 9:00 a.m. check-in day, with the full-day available for Friday committees to utilize. All committees, other than the Judiciary Committee, have been directed to schedule their final day of public hearings by March 4; Judiciary Committee’s last day of scheduled public hearings will be March 12. For committees other than the Judiciary Committee, the week of March 9 will be available for executive sessions and Covid-related public hearing “make-up days” if circumstances warrant a committee canceling a public hearing due to the full committee quarantining due to a Covid exposure.

All day floor debate will begin on March 15.

Today’s Friday Floor announcement will be short.

First, beginning Monday we will start convening each day at 9:00 a.m. and adjourn most days by 9:15 a.m. after checking in. All-day hearings begin on Monday and will proceed throughout February and into the first of March. I will be discussing with the committee chairs their work loads prior to deciding and announcing sometime in the near future a date for the conclusion of public hearings.

Next, I have decided to schedule the morning of Tuesday, February 16th for floor debate and have notified the committee chairs of our Tuesday committees to not schedule public hearings on that day. I intend to also schedule another morning of floor debate on Monday, March 1st, or Tuesday, March 2nd, once I discuss with our Monday and Tuesday committee chairs their work loads.

Also, a reminder to senators and legislative aides that all of the statements of intent for bills scheduled for public hearing Tuesday through Friday next week are due to the respective committees on Monday by 9:30 a.m. The statements of intent for bills scheduled for public hearing on Monday are due to the respective committees by 9:30 a.m. this morning.

And finally, the Nebraska Legislature’s website will be updated no later than noon today with the information for the public about the new options available this session for them to provide input to this body that I shared with you yesterday, including activating the link for online submission of comments for a bill.

Covid-19 Hearing Procedures and Public Input Options

To help ensure that the committee hearings are safe, that the members of the public have opportunities to have their voices heard, and that we are appropriately responding to the challenges caused by COVID-19, the Legislature has modified its traditional hearing process. These modifications are intended to create a consistent committee hearing process and to expand the options for public input for those members of the public who are concerned about testifying in-person in a hearing room at the Capitol.

First, and in consultation with the standing committee chairs, health officials, and the Clerk’s office, I have finalized the Covid-19 Hearing Procedures which will be followed by all committees. The procedures include: limiting hearing room capacity to accommodate social distancing; requests for testifiers to limit their time in the hearing room to their bill of interest, to wear a mask, (with the exception of when they are testifying), to use the identified entrance and exit doors to help avoid congestion and promote orderly traffic, and to limit or eliminate handouts. Additionally, pages will be sanitizing the front table and chair between testifiers.

This standardized list of Covid-19 Hearing Procedures will be read by each chair at the beginning of each day’s morning hearings and again at the beginning of the afternoon hearings. Additionally, the Covid-19 Hearing Procedures will be posted each day outside of the hearing room next to that day’s hearing agenda.

Additionally, again in consultation with the standing committee chairs, the Clerk’s office, and working with the Legislature’s IT team, I have finalized additional options for public input to expand the public’s access to the legislative process. As described below, these options will give the public more opportunity to have their testimony included within the hearing transcript, provide an opportunity to submit electronic comments through the Legislature’s website, and harmonize rules for providing position letters for the hearing record.

The full details of how to take advantage of these public input options will be available on the website by the end of the week. I strongly urge the public to read the instructions on that page when it is available so that they can evaluate the option that best fits their particular needs.

There are three primary changes. First, an individual may take advantage of “written submitted testimony.” This option allows an individual who has health or safety concerns to be able to provide testimony as if they were in the committee hearing—i.e., they will be listed on the committee statement and their written testimony will be included within the transcript of the hearing—without having to sit in the hearing room for an extended period of time. There are specific requirements for taking advantage of this option that will be detailed on the Nebraska Legislature’s website later this week.

Second, the Legislature has implemented a new feature allowing the online submission of comments on a bill at any stage of debate. The comments will be accessible by all Senators and staff to read.

Third, we have streamlined and made consistent the process for submitting a position letter to the committee. The new rules create a standard procedure and process, including time line, for submitting these emails or letters to be included within the committee record. While not an expansion of current options, I believe that the consistency of the new rules for the submission of a position letter will help ensure that more members of the public are able to have their position included within the record.

For those who do not wish to take advantage of these options, the current option of testifying in person at public hearings will remain available.

New Deadline for Submission of Statements of Intent

In light of the extra burden placed upon committee staff this year with the holding of all day hearings and the new option of submitting written testimony, as Speaker I am asking each senator to observe a new deadline of Monday morning before 9:30 a.m. for submitting the statements of intent for all of your bills which are scheduled for public hearing that week. (This will apply to all bills other than those scheduled for public hearing on a Monday, in which case the statement of intent will be due Friday morning before 9:30 a.m. Additionally, the deadline will be Tuesday before 9:30 a.m. the week of February 15th due to the Monday holiday.)

Our current rules call for senators to submit a statement of intent “at least 24 hours prior to the bill’s hearing.” The creation of an earlier submission deadline will allow our committee clerks to prepare bill books or their committee shared documents drive for their entire week’s hearings at the beginning of the week.

We are one legislative team. The committee clerks are taking on a significant burden to help execute the all-day committee hearing process, which will, in turn, help ensure that the body can continue its work without a suspension of session. In return, this deadline will help the rest of us provide assistance to our committee clerks (especially for the clerks of our 3-day committees).

As always, thank you for your cooperation and patience as we navigate to make our Covid-19 procedural adaptations work for all of us.

All Day Public Hearings

We are in unprecedented times with the Covid-19 pandemic. Families, businesses, and governments are making decisions daily as to how they respond, balancing essential functions and safety of the public. The Legislature is not immune from these decisions. As Speaker, a significant priority is avoiding a suspension of session. Keeping our session intact is both good for the body and for the citizens of Nebraska who expect their Legislature to continue to do their work during this time. While a suspension may become unavoidable at some point, I believe there are measures we can take to lessen the likelihood of that occurring, and advanced planning will maximize our chances at continuing with the session uninterrupted.

To that end, I have decided to structure the session to accommodate all-day committee hearings beginning on January 25th, with morning hearings beginning at 9:30 a.m. and afternoon hearings beginning at 1:30 p.m.

Gathering in large groups, as we would in floor debate, creates one of the most direct ways in which an exposure and/or self-quarantine of significant numbers of senators could occur and cause a suspension of session. This schedule will lessen the amount of time we are gathering on the floor as a large group during January and February, the projected peak time for the virus. In addition, senators who need to self-quarantine during committee hearings are less likely to miss out on core legislative functions as, unlike floor debate, there are options for them to meaningfully participate in the committee process without being physically present. Last, I believe all-day hearings will make efficient use of our time during this early phase of our session.

This decision is not made lightly, and not without significant input and consideration. I have spent weeks collaborating and discussing this proposal with the Speaker’s office and the Clerk’s office, as well as the standing committee chairs, working to determine the feasibility, risks, and potential downsides of such an approach. Of serious consideration was the safety measures and public input options that we could provide to the public to have their voices heard. On balance, I believe that this is the right approach to allow us to continue our work as a co-equal branch of government and to keep us on the field during this pandemic while balancing the needs of the public and being responsible partners.

Critical to this decision is protection of the public and allowing their voices to be heard. The Nebraska Legislature takes seriously the right of the second house to participate in our unique public hearing process, and to do so in a safe manner during this pandemic.

To that end, sometime next week we will announce expanded options for citizens testifying and having their voices heard without having to sit in the committee hearing rooms all morning or afternoon.  In addition, next week I will be announcing Covid protocols for public hearings that have been formulated with the input and agreement of the standing committee chairs. These two sets of measures—expanded options for input and safety precautions—will help ensure that the public function as the second house safely.

I am waiting to announce the date on which public hearings will end until after the ten days of bill introduction concludes. At that time I will know what the workload is for each committee and I will have had an opportunity to consult with the chairs of committees with the largest workloads.

The all-day public hearing structure does not mean we will not have floor debate in February. I will be working with the chairs of committees with fewer bills to arrange some mornings for scheduled floor debate.

Last, I want to acknowledge and thank the committee staff, in particular the committee clerks and legal counsels, who will help to execute these changes. We have solicited and incorporated input from committee staff, and we are here to assist you in any way that we can in this process. I personally appreciate your help in making sure that this works and that we can fulfill our constitutional functions.

Rules Debate and Schedule for Next Week

In my memo dated January 8th, I had indicated the debate of the motion to adopt permanent rules would begin on Wednesday, January 20th. I am rescheduling that debate to begin on Thursday, January 21st. The start time for Wednesday and Thursday will remain the same. We will convene at 9:00 a.m. on Wednesday and at 9:30 a.m. on Thursday. On Wednesday will we will adjourn around 11:30 a.m. or when introduced bills have been processed by the Clerk’s office. On Thursday, the Chief Justice will be giving his State of the Judiciary Address followed by the rules debate. On Thursday we will recess at noon and reconvene at 1:30 p.m. to continue debate of the rules. Adjournment may be as late as 6:00 p.m. that day dependent upon our progress. If the rules debate is still pending on Friday, it will not be a check-in day as previously announced, and instead will be a full morning session to finalize our permanent rules.

Bill Introduction

While Wednesday is the last day of bill introduction, some senators have indicated to me they would like to introduce the remainder of their bills on Tuesday. The Revisor’s Office will be open on Monday and in order to guarantee the receipt of your 3-parts by Tuesday prior to adjournment you will need to order them by 5:00 p.m. on Monday. You may request your 3-part by phone or email but if your email is not acknowledged, I would recommend you phone the office for confirmation.

Revision/Clarification to the Food Policy

The Speaker’s Memo dated January 8th noted that “Food sponsored by groups or senators will not be distributed to members of the Legislature in the Chamber or to their offices.”

In response to questions regarding the direct delivery of food by sponsoring groups or individuals to senators’ offices, I am requesting no one deliver to senators’ offices unsolicited food. In other words, I am requesting no door-to-door delivery of food to a senator’s office without the senator’s or staffs’ prior knowledge and agreement to accept the food item.

On the other hand, if senators or staff are participating in a meeting, either in person or virtual, and the sponsoring group provides food for the meeting that the participants have prior knowledge of and agreement to accept, that is permissible.

There is significant interest in the rules surrounding filibusters and when a motion for cloture will be considered to be in order by the presiding officer. This memo is meant to lay out how I intend to approach cloture motions during the long session of the 107th Legislature. The procedure is briefly laid out here; my reasoning is further below.

General Rule Regarding Cloture

In general, the following rules apply to a bill:

1. On general file, full and fair debate will have occurred after 8 hours of debate;

2. On select file, full and fair debate will have occurred after 4 hours of debate;

3. On final reading, and assuming that a motion for cloture had been adopted on either general file or select file, full and fair debate will have occurred after 2 hours of debate; provided, however, that if no motion for cloture was adopted on either general or select file, then full and fair debate will have occurred after 4 hours of debate on final reading.

In potentially rare instances, it may be that a bill is of such complexity, importance, and/or materiality to the State of Nebraska that additional time for debate is necessary. In such instances, on general file full and fair debate will occur at 12 hours, with appropriate adjustments made on select file and final reading. In such a case, I intend to provide the body advance notice of the threshold before each stage begins.

Conversely, while it is not my current intent to do so, I reserve the right, judging on the quality of the debate and the complexity of the bill, to adjust the threshold downward. If that happens, I will treat such occurrence as “precedent” and apply that decision in similar situations regardless of bill or introducer. Please note that my expectation is that floor debate addresses the policy under consideration and is not a member or members talking about unrelated issues to just run out the clock.

Analysis and Reasoning

The motion for cloture goes to many issues at the heart of our work — the proper use of floor debate, which is one our most important tools, the proper allocation of scarce time, as well as important principles of process including fair notice, uniformity, and equal application of rules. I have elaborated on my reasoning here so that the body can understand how I have tried to balance these issues to further our work.

Rule 7, Section 10 sets out the cloture motion. It provides that “the presiding officer may rule such motion for cloture out of order if, in the presiding officer’s opinion, a full and fair debate has not been afforded. Such ruling by the presiding officer shall not be subject to challenge.”

The rule provides three specific elements — (1) the motion for cloture is within the discretion of the presiding officer; (2) a standard of “full and fair debate”; and (3) that the motion is not subject to challenge.

Nowhere do the rules specify any specific time for when “full and fair” debate will occur; indeed, what is “full and fair debate” will depend on a variety of factors, including the complexity of the bill, the substance of the issue, and the importance to the State, such that full and fair debate could not reasonably be determined by a clock.

Despite the inevitable variation between bills, as a historical matter, previous Speakers have set a threshold at which “full and fair” debate occurs. That hour threshold has varied but often has been either 8 hours or 6 hours on general file. At one point in time, the cloture rule had a threshold of 8 hours at each stage of debate.

As a matter of principle, I do not agree that an hours threshold accurately captures the spirit of the rule which requires only “full and fair debate” for the specific bill. Nevertheless, I am adopting such a rule for four reasons.

First, providing a rule in advance gives fair notice and the opportunity for proponents and opponents to rely on set rules for debate. Relying on discretion, or a messy set of potentially conflicting precedents of decisions of the presiding officer erodes predictability and undermines our work.

Second, and critically, an hours threshold promotes a significant principle to this session–fairness and equal treatment. We are a body of 49 equal members and each member must have confidence that the rules will apply equally to each; leaving the decision to pure discretion invites arbitrary application of the rules.

Third, an eight-hour threshold on general file is a reasonably accurate proxy for adequate debate on most, if not nearly all, issues. The majority of bills will never debate eight hours in total; in contrast very few bills, if any this year, will not have been fully debated by the end of eight hours. In that way, the eight hours should account for most, if not all, circumstances.

Fourth, in explicitly allowing for potential (if rare) deviations, there is enough flexibility in the system to handle the one-off occurrence that does not fit within this structure. In deciding on the possibility of a 12-hour threshold at general file, I am recognizing that for some bills 8 hours of debate is simply not enough time to fully debate.

In deciding on deviating from 2 hours at final reading, my reasoning is this: 2 hours at final reading presumes a lengthy debate at previous stages of debate. A bill debated 8 hours on general file and 4 hours of select likely does not need many more hours of debate on final reading. At the same time, it is highly discouraged that, absent extraordinary circumstances, a filibuster should begin at final reading. When such debate at previous stages has not occurred, then additional hours at final reading will likely be necessary.

Some discussion in my time in the body has been around whether 6 hours, or 8 hours, or some other period, may discourage or encourage filibusters. While that can be a factor in the number of filibusters, especially at extremely low thresholds, that was not a primary factor in my analysis. Outside of extremely low hours thresholds, I believe that the number of filibusters are driven by two primary variables–the number of bills passed out of committee that truly merit extensive debate and the culture within the body and the associated respect for floor time. If there are abuses of floor debate and/or an “overuse” of filibuster there are other means by which the body can react and correct; the cloture rule is too imperfect of a mechanism, with too many potential unanticipated consequences, to be used as such a tool.

While I anticipate that these procedures will cover the entire session, given the uncertainty of whether or not this session could be shortened due to Covid-19 or other unforeseen circumstances, I do reserve the option to change these procedures with notice to the body beforehand.

Sen. Mike Hilgers

Speaker of the Legislature
Room 2103
P.O. Box 94604
Lincoln, NE 68509
(402) 471-2673
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