With use of so-called "placeholder" bills booming in the Oregon Capitol, lawmakers are pulling some surprising policies out of seemingly mundane proposals.
Illustration by Colleen Coover / Special to OPB
Oregon lawmakers have fallen in love with so-called “placeholder” bills, and that is posing problems for transparency.
OPB recently took a deep dive into this issue. Here’s what you need to know.
What is a placeholder bill?
Used for decades, placeholders are a way for lawmakers to reserve their place in line — ordering legislative attorneys to draft a dummy proposal that might or might not be completely swapped out for another idea later. Fans say they’re necessary for making sure lawmakers can respond to emerging issues. Critics say they can be a nightmare to track, and allow lawmakers to sneak in proposals with little scrutiny.
How do you spot them?
Placeholders are typically short bills, ordering a state agency to study some topic or another. A classic example is ordering the Oregon Department of Transportation to study speed bumps.
No one actually wants a speed bump study. The bill linked above, for instance, may become a consumer protection bill limiting what data can be shared from auto crash reports.
Placeholder bills are principally useful for what’s known as a relating-to clause, the brief string of words that dictates what area of law a bill might influence. A speed bump study bill will have a clause that says it’s “relating to transportation.” That means that it can only be replaced by proposals involving transportation.
Lawmakers order up a vast array of placeholder bills specifically to generate relating-to clauses on subjects they are interested in.
How often are placeholders used?
More than ever.
The Office of Legislative Counsel, which drafts bills requested by lawmakers, recently released an analysis that shows use of placeholders has exploded.
It shows that fewer than 40 placeholder bills were introduced in the 2015 “long” legislative session. That’s about 1% of all bills lawmakers filed that year.
This year, by contrast, legislators introduced more than 600 placeholders bills – nearly one-fifth of all proposed bills.
“It’s really been ramping up,” said Dexter Johnson, the Legislature’s top attorney.
It’s not completely clear why their use has flourished, but longtime fans of the bills are filing more than ever. This year, Sen. Floyd Prozanski, D-Eugene, chair of the Senate Judiciary Committee, filed more than 70 placeholder bills — with relating-to clauses ranging from “attorneys” to “youth” and dozens of topics in between.
“There are things that come up that we need to address,” Prozanski told OPB, explaining why he’s been a frequent user of placeholders. But he also acknowledged the process might have gotten out of hand this year. “This time was much more than I anticipated.”
What’s the downside?
Placeholder bills are a fact of life in Salem. But they pose concerns when lawmakers use them to mask the introduction of other ideas.
In April, Prozanski’s Senate Judiciary Committee took up Senate Bill 469, a placeholder bill ordering the state’s parole board to study parole law. But as the committee began hearing the bill, it became clear an entirely different proposal was actually being considered — one to change how convicted murderers are paroled in the state.
The public wasn’t given any opportunity to see that proposal until the day after the hearing, their sole opportunity to testify in person. Neither were interest groups who have opposed the idea in years past. They rushed to mount a defense.
Asked about the lapse in transparency, Prozanski told OPB he never meant to pass the bill in the first place.
“It’s not my intent to bring something that has not had a public process,” he said. “I mean, that is something that is important to me.”
This wasn’t a one-off. In April, House lawmakers took up a bill that looked like it would order a study on state liquor laws. In reality, they were taking up a proposal to change how liquor stores are regulated. Once again, the public was given no insight into that proposal ahead of a public hearing, so couldn’t sign up to testify.
Lawmakers and lobbyists asked about this and similar instances voiced uniform opposition.
“That’s inappropriate,” said state Rep. Greg Smith, R-Heppner. “If that’s going on, we should create a House rule to prohibit that type of activity.”
Who supports them?
Most people in Salem say placeholders have a role to play in lawmaking.
“They’re supposed to just be there as an outlet in case we didn’t think of this thing or this really bad thing happened,’” said state Rep. Rob Nosse, D-Portland. “That really does serve a purpose.”
“It’s a convenience, that’s really what it is,” said former state Sen. Michael Dembrow, a Portland Democrat who spent more than 15 years in the Legislature before retiring in January.
Even lobbyists, who are always on the lookout for proposals that might come out of left field, often say the bills serve a purpose.
“Good committee chairs always have a handful [of placeholder bills] ready with broad relating-to clauses,” said Tom Holt, a lobbyist who has worked in Salem for nearly three decades and sees a role for the bills.
Who opposes them?
Lobbyists, lawmakers and members of the public all say placeholders can pose concerns if used irresponsibly. But few speak out against the practice as forcefully as Republican leaders, who are in the legislative superminority.
“Oh God, I hate ‘em,” said Senate Minority Leader Daniel Bonham, R-The Dalles, who has directed his staffers to monitor Democrats’ placeholder bills. “It’s like I have to watch this Senate bill forever because the relating-to clause is something that could destroy our economy, could end private rights, whatever it might be.”
Bonham’s counterpart in the House feels the same. House Minority Leader Christine Drazan, R-Canby, calls placeholder bills “the ultimate exercise of absolute power” by Democrats.
“You see these huge omnibus bills at the last minute, you’re always surprised by what’s in them, there’s no process,” Drazan said.
But not every GOP member dislikes the practice. Smith, the longest-tenured member of the House, learned how to use placeholder bills in 2001, his first year in the Legislature. He’s kept it up.
“I usually drop 15 to 20 of those bills every session, knowing that I may never use them,” Smith told OPB. “Quite often, I will have colleagues who have not been in the process as long as I have who will come to me and ask me if they can use one of my bills.”
Will anything change?
Following OPB’s reporting, one of the Legislature’s most powerful members said use of placeholders had gotten out of hand.
“There’s improvements that need to happen in terms of the number of placeholder bills and how they’re being utilized,” said Senate President Rob Wagner, D-Lake Oswego, without offering any suggestions for what those improvements might be. “So I’m open to that conversation.”
There appears to be a growing sense that something is wrong with business as usual in the Capitol.
A crush of more than 3,300 bills — padded by more than 600 placeholders — choked committees in the early part of the session.
Wagner and his counterpart across the rotunda, House Speaker Julie Fahey, are supporting a bill that would limit lawmakers to filing 25 bills during every odd-year long session.
That would almost certainly curb the use of placeholders. But the bill has yet to be scheduled for a hearing, and its fate is unclear.
