NEBRASKA LEGISLATURE

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Mike Hilgers

Sen. Mike Hilgers

Speaker of the Legislature

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I want to announce how I will be handling certain procedural motions under our current rules during the upcoming special session. As a reminder, the call is limited to the adoption of redistricting maps for the Legislature, the Public Service Commission, the Board of Regents of the University of Nebraska, the State Board of Education, the Nebraska Supreme Court, and the U.S. House of Representatives, as well as a limited appropriation for the expenses related to the special session. In addition, confirmation reports will be addressed during the special session as those are administrative in nature.

While many of the floor procedures and activities during a special session are similar to a regular session, there are a couple of important distinctions. First, unlike many of the bills we debate during traditional sessions which do not have to pass; the purpose of the special session is to pass redistricting bills. Second, unlike a regular session in which we have up to 90 or 60 workings days to work on legislation and conclude floor debate, we have significantly reduced time during this special session. Third, unlike a regular session, we have no other priorities from other senators or committees to complete—the adoption of redistricting maps is our focus.

The floor procedures I followed during the 2021 session (and based upon the practice of former speakers) were designed with a regular session in mind. Specifically, the procedures allow the body to dispense with legislation after initial debate if the body indicates a lack of support. In addition, these floor practices and procedures were intended to provide time for all priorities bills to have floor time.

In the upcoming special session, my role is to facilitate the full and fair debate of the redistricting measures to allow each to become law in a form agreed to by a majority of the Legislature. To that end, the following procedures for special session will apply:

First, I will be following the “full and fair debate” guidelines I established for the 2021 session. Specifically, debate will be “full and fair” after 8 hours on general file, 4 hours on select file, and 2 hours of debate on final reading. Note that for the special session, a motion for cloture will be in order after 2 hours of debate on final reading, regardless as to whether a motion for cloture was adopted on a previous round of debate.

Second, because we are in special session to pass redistricting plans, if any  redistricting plan fails to receive the required 33 votes to adopt a cloture motion it will not be considered completed. Instead, I will be following the practice outlined in Rule 7, Sec 10 which directs the debate on the bill to end for the day but allows the bill to be rescheduled. If the bill fails to receive the needed votes for cloture, it may be rescheduled on the following legislative day. In such an instance, per the rule a cloture motion will be in order after two additional hours of debate (at any stage of debate).

Third, for the legislative appropriation bill funding the expenses of the special session—a narrow bill within the call of the special session—a motion for cloture will be in order at 2 hours on general file, 1 hour on select file, and 1 hour on final reading.

Furthermore, bills failing to advance from general file or select file will be rescheduled unless they have been indefinitely postponed due to failing to advance three times from general file or two times from select file pursuant to Rule 6, Sec 3(i) and Rule 6, Sec 5 (h). Additionally, any bill bracketed also will be rescheduled for debate either when eligible for rescheduling in the case of bracketing to a date certain or after a motion to unbracket the bill is filed.

 

Norris Legislative Chamber Access

  • Individuals permitted to enter the legislative Chamber will continue to be restricted. However, those restrictions have been modified and loosened for the special session. Specifically, the list of persons who will have access to the Chamber will be limited to:
    • members of the Legislature,
    • the Clerk and Clerk’s Office floor staff
    • the Sgt. at Arms
    • the legislative pages
    • the State Patrol
    • the Legislative Services Coordinator
    • the Chairman of the Executive Board’s staff
    • the Speaker’s staff
    • any Legislative Technology staff when needed
    • the Director of the Legislative Research Office and his staff
  • Legislative staff permitted on the floor, other than those identified earlier, will be contingent upon each bill under consideration or the immediate needs of a senator.
    • When a specific bill is being heard or an amendment is offered, the following staff will be allowed in the Chamber:
      • one staff member of the Principal Introducer
      • one staff member of an introducer of the present amendment or the amendment immediately following the present amendment.
    • When a committee confirmation report on a gubernatorial appointment is being heard the appropriate Committee Legal Counsel will be permitted in the chamber
    • Additionally, staff may be permitted onto the floor for specific needs that arise with a member. Examples of specific needs include the distribution of physical information or picking up and dropping off personal belongings. Staff permitted under these circumstances are not to remain in the Chamber and must leave the Chamber after the immediate need has passed. Only staff who are directly responsible for the present legislation or the legislation immediately following the present legislation will be allowed under the balconies. Sergeants within the chamber will be asking staff sitting under the balconies who are not directly attending to members to leave the floor.
    • Staff are encouraged to wear a mask on the floor.
  • The glass doors to the Rotunda will be accessible during session. Members and staff may enter and exit, however there will be no delivery of notes from the rotunda by the Sergeants

 Media Access

  • Media will be allowed on the floor in a limited capacity. Once the daily limit of media on the floor has been met, subsequent media will be asked to conduct business from the north balcony.

Balcony Usage

  • Members who have been directly exposed to Covid-19 will be allowed to participate in debate from the east balcony. A microphone will allow these members to engage in the debate.
  • The south balcony will be open to members of the public with social distancing procedures being followed, in conjunction with encouraged masking practices.

Doctor of the Day

  • There will be no Doctor of the Day program during the special session.

Prayer

  • The opening prayer will be delivered by a senator each morning from the member’s seat.

Technology Issues

  • Legislative Technology staff will not be sitting on the floor each day. For technology assistance, senators will need to notify Dick Brown, or another member of the Clerk’s floor staff who will contact someone from the Technology office to assist the senator.

 Coffee, Tea, Water and Sponsored Food

  • Pages will resume getting coffee, tea, and water for members.
  • Food sponsored by groups or senators will not be distributed to members of the Legislature in the Chamber.

Hearings and Executive Sessions

  • The hearing rooms procedures, such as mask requirements and social distancing, will be enacted based on the discretion of the committee chair.

Submission of Testimony

  • The practice of submitted written testimony for public hearings on a bill or resolution will be discontinued. Only in-person testimony will be accepted and appear on the transcript.
  • The practice of submitted position letters to committee email addresses prior to the hearing will continue and be included as part of the official hearing record.
  • The submission of public comments to the online bill database will continue

2021 Special Session to address redistricting

On Monday we will have our first consent calendar. Attached to today’s agenda is the list of the bills which will be on Monday’s agenda. There are seven bills on this first consent calendar, but please know I have identified additional bills for future consent calendars. While I’m not sure how many total consent calendars I will be scheduling it will be more than one. Thus, if you do not see a bill you requested on this first list, it does not indicate your request will not be on a future consent calendar. I will be selecting bills for the second consent calendar from the bills already requested and any additional requests made to me prior to April 7 at 3:00 p.m. You do not need to deliver a second request letter for a bill you have already requested for consent calendar.

Additionally, the Appropriations Committee will not be placing the budget bills on general file today as anticipated last week. The committee has a few items to finalize prior to their final work product reaching the floor.

And finally, this announcement continues my practice of providing early notice to the body of the bills which will be debated the following week to allow senators time to prepare. A reminder that 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 152 (Slama) Change provisions regarding fireworks
LB 260 (Hunt) Change provisions relating to good cause for voluntarily leaving employment under the Employment Security Law
LB 338 (Bostelman) Provide powers and duties for the Public Service Commission regarding redirection of funding for broadband services
LB 451 (McKinney) Include characteristics associated with race, culture, and personhood within
definition of race, including hair texture and protective hairstyles under the Nebraska Fair
Employment Practice Act, and change provisions relating to unlawful employment practices
LB 500 (Geist) Provide for venue for prosecution of certain offenses when committed using an electronic communication device
LB 583 (Murman) Require electronic prescriptions for controlled substances
LB 650 (Flood) Adopt the Nebraska Geologic Storage of Carbon Dioxide Act

The last day of the work week will continue to be the day we address “Christmas Tree” bills. Next Thursday I will be scheduling LB 501, Senator Flood’s bill to adopt the Uniform Easement Relocation Act, and LB 428, the Health and Human Services Committee’s YRTC bill. The committee amendments for each bill include the provisions of four additional bills.

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.

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.

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.

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
Email: mhilgers@leg.ne.gov
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