Posted: June 16, 2009


By Celia Cohen
Grapevine Political Writer

When legislators have nothing left up their sleeves, they often try as their last, desperate trick to pull the constitution out of a hat.

The state Senate tried it earlier this month. It did not work.

The object was to make the open government bill disappear, before it could strip away the Delaware General Assembly's blanket exemption from the state's Freedom of Information Act.

For the legislature, it would be as shocking as muttering "presto-change-o" and watching a burqa melt to a bikini.

No more shell games, like the Joint Finance Committee's "orientation" sessions that turned budget writing into a now-you-see-it-now-you-don't pea. Instead, it would be open sesame for the public, curtains for the lawmakers on an old, old act.

There was never a question about the open government bill getting approved by the state House of Representatives. The new Democratic majority had campaigned on it, and the chamber's commitment was evident by the decision to designate it as House Bill 1 with Speaker Bob Gilligan as the prime sponsor.

The Senate was different. The old Democratic majority has been around since 1973, before there even was a Freedom of Information Act. That law, crafted by the legislature in the reformist, post-Watergate days of the mid-1970s, required  state and local governments to make public most of their meetings and records -- except for the legislature itself.

The lawmakers insisted the state constitution made them do it.

They turned an innocuous-sounding line -- "Each house may determine the rules of its proceedings" -- into a cloak of invisibility. They interpreted it to mean that one General Assembly could not bind a future General Assembly.

Funny, it was all right for that old General Assembly to bind future General Assemblies to be exempt from the Freedom of Information Act but not all right to bind future legislatures to abide by it.

Never mind that the legislature binds itself all the time in the most fundamental of ways. It expects its redistricting bills, setting the number and shape of its districts, to be binding for 10 years. It assumes it will be paid in a new legislative term based on the budget passed during the prior one.

"We were just looking for an excuse not to do it," conceded Bob Byrd, a lobbyist who was a Democratic representative when the Freedom of Information Act was enacted.

If patriotism is the last refuge of a scoundrel, hypocrisy is a close second.

No legislator dares to vote against open government. The jig was up when Sen. Karen Peterson, a Democrat from Stanton, blindsided the Senate in an unguarded moment in May with a motion to suspend the rules and force the chamber to consider the bill.

It was momentous. Not only was Peterson flipping off the leadership, but her motion was the legislative equivalent of a Hail Mary pass, and she still succeeded.

When the bill came up for debate in early June, the last best defense was for the Senate to try to wrap itself in the constitution. A Senate attorney was summoned to speak about the sacred right of one General Assembly not to be bound by another.

The argument failed, self-preservation prevailed, and the Senate joined with the House to send the bill to Gov. Jack Markell for his signature. Markell, a first-term Democrat, signed it into law Friday with an assurance from Mike Barlow, his counsel, that the bill passed constitutional muster.

"We don't have a subsequent General Assembly yet. Because they've just passed the legislation, the question isn't going to come up for another two years," Barlow said. "It's constitutional until some time as a court says it's not."

Just in case, Speaker Gilligan intends to push a constitutional amendment to resolve the issue once and for all. To become part of the constitution, amendments must be passed by a two-thirds vote in two consecutive General Assemblies. This one could be in place as early as January 2011, when the next General Assembly convenes, and the question would be moot.

Not that something unconstitutional is necessarily wrong.

The state constitution itself contains a provision that is likely unconstitutional -- the requirement that the judiciary has to be balanced politically between Democrats and Republicans. It automatically excludes anyone unaffiliated with either party from the bench, and it bars people from one party whenever a judgeship becomes available.

That provision is found in no state but Delaware. Still, the court system here is regarded as one of the best, if not the best, in the country, most notably because of its caseload of business law. It brings prestige and revenue.

The late Ned Carpenter, a lawyer who had one of the finest legal minds the state ever saw, was untroubled by the thought of a Delaware judiciary assembled perhaps in unconstitutional fashion.

"Nobody has ever challenged it, and I hope they never will," he said in an interview about 10 years ago. "Maybe you need a few unconstitutional things."

The open government law could be like treason and Patrick Henry. If it is unconstitutional, make the most of it.