Despite historic efforts to overhaul Michigan’s Freedom of Information Act, legislators do a lot of their public work where the sun doesn’t shine.
And that’s not likely to change anytime soon.
Last week the Michigan House of Representatives approved a package of 10 bills that would make legislators and the governor subject to FOIA for the first time in the law’s 40 year history. The 1,080 total yes votes (and zero no votes) took place on the House floor for all to see, either in person or online. Some were accompanied by stirring floor speeches such as that by Democratic Representative Jeffrey Moss.
“We shouldn’t be satisfied that 48 other states have figured out a way to make transparency work and we haven’t,” Moss told colleagues prior to the vote. “No one here should boast to anyone that we run a translucent state government.”
But Moss pulled back on the transparency rhetoric when asked about closed-door party caucus meetings in which lawmakers privately wrangle over public policy.
“When I was first elected to the Southfield (Michigan) City Council in 2011, one of my colleagues welcomed me aboard by saying the City Council was like being on a deserted island with six other people – and everyone hates everyone else. It was clear I was going to be a caucus of one,” he told Watchdog.org.
“Now that I serve as state representative, I realize how valuable caucus meetings are,” Moss added. “Whereas one individual councilman can study and strategize by himself without posting it as an open meeting, it’s important that multiple caucus members enjoy the same ability to confidentially communicate with one another to be informed about issues on the agenda ahead.”
Even though these closed meetings typically take place at the state Capitol during business hours, the state’s Open Meetings Act specifically allows “Partisan caucuses of members of the state legislature” to be held in closed session.
The secrecy becomes problematic, however, when legislators hide behind the meetings’ Las Vegas approach.
“We’ve got a long-standing rule: What happens in caucus, stays in caucus,” said a House Republican spokesman in 2015 after the expulsion of a representative from the party caucus for supposedly leaking meeting details to the public.
In February, tensions erupted over accusations of “improper pressuring” over a Republican bill to roll back the state’s income tax.
But such behind-the-scenes party maneuvering are not unique either to Michigan or the United States.
A quick Google search, for example, turns up the following:
New Jersey: “Mukherji declined to go into the particulars of the discussion, noting earlier that ‘what happens in caucus, stays in caucus.’”
Indiana: “The issue came up last February when State Sen. Mike Delph violated what Senate President David Long called ‘our golden rule,’ which was, essentially, what happens in caucus, stays in caucus.”
Georgia: “Sen. Frank Ginn, R-Danielsville, voted in favor of Cagle. He doesn’t have a problem with Cowsert or the Committee on Assignments, he said, but Cagle is a long-time friend and supporter. Otherwise, he’s keeping his lips sealed. ‘What happens in caucus stays in caucus,’ he said.”
Alaska: “Of course, the terms of the deal were not released publically. This is the Alaska Legislature after all and ‘what happens in caucus, stays in caucus.’”
North Carolina: “House Speaker Tim Moore said he couldn’t divulge the topic, because what happens in caucus stays in caucus.”
Connecticut: “[I]t’s interesting, because usually kind of like what happens in Caucus stays in Caucus, but Ed gets kind of passionate when he’s in the Caucus room.”
New Mexico: “What happens in caucus stays in caucus,” Ezzell said of the private political strategy sessions known as caucus meetings.”
West Virginia: “Senate Majority Leader Truman Chafin of Mingo County on Tuesday reminded his colleagues that, essentially, what happens in caucus, stays in caucus.”
And in other countries:
Canada: “Caucus chair Jim Hodder would not discuss details of the meeting, saying that was (sic) is said in caucus stays in caucus.”
New Zealand: “The party is quite separate from the parliamentary team. What happens in caucus stays in caucus and Tracey and I have worked very hard at that. She doesn’t come home and rattle off what caucus did.”
South Africa: Party sources said Trollip made an “angry” speech to the caucus before the voting took place, criticising Zille’s role in the campaign, and complaining of the perceived manipulation and intimidation of members. He declined to confirm or deny this. “What I say to caucus happens in caucus, and stays in caucus,” he said.
In Michigan, caucusing is a long-standing tradition that draws more ennui than curiosity from even the most seasoned media and political observers.
T.J. Bucholz is president and CEO of Lansing-based Vanguard Public Affairs, and a longtime political observer of Michigan politics. He says while the old adage says there are two things that people don’t want to see made — sausage and laws — you might add caucus politics to the list.
“I fear that if you open caucus meetings to the public, legislators will just find another way to communicate more frankly with each other,” Bucholz told Watchdog.org. “That being said, legislators need to remember that they are public officials and stewards of taxpayer resources, and that very little they work on should be secret. Casting sunshine on process discussions is good for citizens in the long run.”
A careful balance
Jennifer Dukarski, attorney for the Michigan Press Association says party caucuses require a careful balance.
“The approach seems to be contrary to the idea of open and transparent dialogue. At the same time, it does indeed embrace the position that has been written into the law that allows the frank communications and discussions,” she told Watchdog.org. “So it’s a balance between where that really should fall. Is it truly something that truly facilitates government at the exchange of transparency.”
Dukarski adds that rocking the boat with the Open Meetings Act could lead to more aggressive efforts to get around the law.
“The best case scenario is to aim for the goal of an open and transparent government. And anything that stands in the way of an open and transparent government has to be looked at with a healthy dose of scrutiny,” she said.
“We’re willing to accept that there are some limitations. How broad should those limitations be is absolutely a fair debate to engage in,” Dukarski said.
Kathy Hoekstra is a national regulatory reporter for Watchdog.org. Contact her [email protected] and @khoekstra.
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