Missouri legislature targets Sunshine Act

Even as some in the Missouri legislature try to unravel the initiative process, they also are trying to undo “the will of the people” on previously passed voter initiatives on government transparency.

A bill to undo some of the government transparency requirements passed by voters five years ago in the Clean Missouri initiative is advancing in the legislature. The bill would allow lawmakers to hold back records from the public and the news media.

Any record of a state legislator or staff pertaining to “legislation or the legislative process” could be closed off to public scrutiny except for those offered during a public meeting or involving a lobbyist. The legislation is sponsored by Missouri State Sen. Andrew Koenig, R-Ballwin.

According to Koenig, the bill will allow legislators more freedom to discuss proposals and to “think out loud” when taking up legislation. Sunshine law defenders said the bill is a move by lawmakers to carve up a constitutional mandate approved by Missouri voters.

An outspoken critic of the bill is David Roland, director of litigation at the libertarian nonprofit Freedom Center of Missouri.

“The Freedom Center is for transparency. We’re for initiative power,” said Roland. “We think the more people know about what is going on in their government, the better. And the more power we place with the people to govern themselves, the better.”

Roland said the legislature has not been happy that the voters want more openness and clarity about how laws are made. However, he said lawmakers need to abide by what the voters decided and not try to shield themselves from public oversight.

The Koenig bill changes the definition of public meeting in a manner that Roland and other critics argue will allow governmental entities such as school boards and city councils to discuss public issues behind closed doors.

According to Roland, the new language is an invitation to government bodies to ignore transparency requirements under the 50-year-old Sunshine law guaranteeing that the public has access to government records and meetings.

Roland said that because the Koenig measure alters certain provisions in the state constitution, it will have to go to a vote of the people to be enacted. He said he was not sure how “it could be sold” to the public.

“I am pretty confident that Missouri voters are going to reject this when it is submitted to them for a vote,” said Roland. “I am not overly concerned.”

Roland said the legislature should recognize that open meetings and requests for public records are not “an abuse” of the system. He said it’s also not “an abuse” of the system when the public turns to the initiative process.

“I have to laugh when the legislature says the initiative process is too easy for the public to get things on the ballot,” said Roland. “It’s not easy at all, but people make that effort when they feel lawmakers are not hearing what they want.

“We have seen over the last score of years a certain disconnect between the people and the legislature,” added Roland. “Because of that disconnect, the people are stepping up on issue after issue, and the legislature is not happy.”

The Freedom Center’s Roland studied law and religion at Vanderbilt University, where he received his law degree and a master’s degree in theology in 2004.  While at Vanderbilt, Roland wrote for the Freedom Forum’s First Amendment Center.

Environmentalists’ Concerns

Environmentalists are also expressing concerns over the legislature meddling with past initiatives passed by a vote of the people in Missouri. They are also concerned over lawmakers’ attempts to effectively nullify the current initiative process.

“Legislatures are charged with passing laws, and in this they are supposed to represent the voters,” said Henry Robertson, a St. Louis environmental lawyer. “But when they fail to do this, the voters have the right to assert their will by bypassing the legislature.”

Robertson said the initiative process is consistent with the principle that the will of the people is the supreme law. Robertson speculated that any number of issues could arise concerning protection of water, air and land and addressing climate change.

“A current example of this is the legislature’s denial of local control on subjects like public health ordinances to protect against concentrated animal feeding operations (CAFOs) or dictating what local governments can or can’t put in their building codes, even when we have no statewide codes,” Robertson explained.

“The legislature is attacking energy efficiency standards, provisions for EV charging stations, and bans on natural gas hookups in new construction,” added Robertson. “I’m not saying there are currently any initiatives planned on any of these issues – passing one is much more difficult and expensive than the legislature likes to make out.”

Nevertheless, the availability of the process is vitally important, according to Robertson. He cited the example of the 1976 initiative that banned electric utilities from charging customers for construction work in progress.

Now the legislature wants to repeal the 1976 ban on charging ratepayers for construction work in progress (CWIP). This repeal would force state ratepayers to take the risk, for example, of the construction of a new nuclear reactor that’s too risky for Wall Street bankers.

“The tendency for the legislature to repeal or gut initiative-passed laws is the reason initiatives usually take the form of constitutional amendments which they can’t easily repeal,” stressed Robertson. “They complain that initiatives are junking up the state constitution, but their hostility to the people’s will has caused this situation.”

Don Corrigan is former editor-in-chief and co-publisher of the Webster-Kirkwood Times, South County Times and West End Word newspapers in St. Louis. He is a professor emeritus in the School of Communications at Webster University in St. Louis.