This year, Governor Fallin signed 394 pieces of legislation. I was the primary Senate author of 11 of those bills. Over 11 days, I am telling the story of each bill – where it came from, how it progressed through the Legislature, and what it means to the people of Oklahoma. This is in keeping with my longstanding support of transparency, and hopefully you’ll find this exercise insightful.
The first page of HB 2703.
Today, we continue with House Bill 2703, which significantly amends the ability to access birth and death records. As I said yesterday after I uttered the words “municipal utility billing,” don’t stop reading. You’ll find this stuff is interesting once you know a little bit about it.
A few years ago, the statutes regarding access to birth and death certificates were, as I understand it, pretty loose. In the interest of transparency, I don’t really have a problem with this, but there is another school of thought that there is personal information contained in such records that some families don’t want people to know, even perhaps relatives. There has also been a growing concern about how access to those records facilitates identity theft. So, in response, the Health Department pushed through legislation that pretty much closed those records off to everyone but the subject of the record.
In 2014, a constituent, Chris Powell, approached Rep. Elise Hall and I about swinging the pendulum a few feet back the other direction. Elise and I share portions of Northwest Oklahoma City, Warr Acres and Bethany (something that came up in Episode 3). As the law existed in 2014, a genealogist really couldn’t EVER access the certificates of relatives. This seemed too extreme to me. Chris was active in that kind of work, so he asked Elise and I to try and open the records back up. Negotiating with the Department of Health, we passed SB 1448, which made birth certificates a public record that anyone could obtain 125 years after the birth and made death certificates a public record 75 years after death. Chris wasn’t thrilled with those waiting periods, but he was appreciative that SB 1448 at least opened up the records eventually. I agreed with Chris and would have preferred shorter waiting periods, but this was what we were able to achieve without total opposition from the Health Department, a battle we might have lost.
However, I still noted in the back of my mind that some day I might make an attempt to revisit the issue. In fact, there are lots of policy goals buried in the back of my mind, because you never know when they might find their moment. Was this specific issue the most important issue facing the people of Oklahoma? No, and that’s why I wasn’t relentlessly filing bills and working on it, but I also knew that making this a little better mattered in the interest of transparency, it would be greatly appreciated by genealogists, and that there was a better solution than the one we had reached.
Recalling her previous involvement in this topic, the Health Department, to its credit, approached Elise previous to the 2016 session about a bill that would further open up access to birth and death certificate information. In response, she introduced HB 2703. This bill proposed a system by which the Health Department would respond to inquiries from certain entities (i.e. doctors, life insurance companies) seeking confirmation of a death. It also proposed creation of an online database where people could verify a birth or death 25 years after the event. In neither case would these new options allow for further access to the actual birth and death certificates, but there was certainly value in providing new ways to get information.
For reasons I don’t know, it was assigned to Rules in the House, then withdrawn. Then it was assigned to Appropriations, then withdrawn. Then it was finally assigned to Public Health. On February 24th, it passed, and I signed up as Senate author. The Health Department felt like it made sense to get the team back together, and I was happy to oblige. In Episode 2, I talked a little about the role of the author in the second chamber once the bill has passed the first chamber and is in the second author’s hands. The extent to which you exert influence over the substance of that bill can vary wildly, as I discussed in Episode 2, but I didn’t talk much about the role of the author in the second chamber during the early stages of a bill’s progress in its first chamber. That’s because there is no role. On February 1st, the first day of session, I didn’t even know this bill existed. And yet here I am writing a blow-by-blow account five months later. Such is the legislative process.
On March 1st, Elise got HB 2703 through the House on a 83-4 vote. As illustrated by that vote, this is not the tale of a bill that was hard to pass, as was the case of the bill in Episode 3. This is a tale of the efforts we make to ensure a bill is the best it can be, even when its shortcomings are not necessarily harming its passage.
With House consideration complete, I now had HB 2703 in my hands. And I kind of didn’t love it.
First of all, the section of statute HB 2703 amended was becoming a bit of a mess. Throughout my time in the Legislature, I have legislated with the goal that statute should be readable and understandable to the layman. I assure you that hardly any of it is today, but I’d like to think my bills are. In my opinion, the wording and organization in HB 2703 was threatening to make the section less understandable to anyone but Health Department employees. I wanted to rewrite the bill for the sake of rewriting it.
Additionally, I had some policy goals I wanted to accomplish. First, I wanted to lower the waiting period for birth and death certificates, as our constituent had wanted two years before. And now I was sitting on a vehicle that the Health Department wanted to pass, so maybe they would work with me. (By the way, a lot of times in the Legislature we call bills “vehicles”, as in “I have a vehicle that would accomplish that,” or “Have you found a vehicle for your amendment yet?”)
I also wanted to make sure people who needed those certificates could get them, like parents, lawyers, funeral directors. And at the same time, the Department of Corrections was approaching me with their desire to see a clause added that would allow them to request birth certificates on behalf of inmates. In addition to all this, I also wanted to accomplish the Health Department’s initial goals for HB 2703, though I wanted those sections to be written more clearly.
I told Rep. Hall that I wanted to do these things, and she responded that was fine, to just keep working with the Health Department. And so, while working on 1,000 other things, I set this on a corner of my desk and said to myself, “I need to draft this bill myself and I will get to it very soon.” And then I didn’t. And I waited so long to do anything that by the time I even requested a hearing for it in the Health Committee, the chairman told me that he really didn’t have time in his final meeting before the deadline to hear it. I sort of begged, and I said I would take title off anyways since it needed work. On April 4th, he heard it and I explained to the committee that this was a “work in progress” intended to finally find the right balance regarding the issue of access to birth and death certificates. A couple of comments were made by an attorney on the committee seeking access for attorneys working on probates. I noted that comment. The bill passed unanimously.
And then I set it on the corner of my desk again. Occasionally, the lobbyist for the Department of Corrections would pop by and say, “Hey, are we going to get our amendment in HB 2703?” And I would say, “Yeah, I’m going to work on that,” while wondering whether I was even going to have time to eat lunch that day. And finally the deadline to pass the Senate came and I realized I was not going to have time to write the bill I wanted to write before this deadline. I knew that if I wanted to get this done the way I wanted to get this done, I would have to take the bill to conference. The way you take a bill to conference is you make sure it’s been amended in your chamber (we had done that by striking the title) and you pass it, and then the author in the other chamber rejects the amendment and takes it to conference. So, I simply ran it on April 21st (deadline day) on the Senate floor (with title off) and it passed 45-0.
Now, I knew I had another month to get this done, so I put it on the corner of my desk.
The story of the Oklahoma Legislature is one of deadlines. Session is a relentless series of deadlines, and they are unmerciful. After a while, you figure out ways to game the system to buy yourself more time (see my behavior on this bill), but eventually your time really does run out. And by mid-May, my time was running out. I had let everyone know that I wanted to write the conference report, and they were patiently waiting, but I was not producing. Finally, mid-May rolled around, other initiatives on my plate had reached their conclusion, and I finally picked up that pile of papers on the corner of my desk, turned to my laptop, opened a new Word document, and began typing.
The drafting of statute is a process I enjoy, but it is not one you can do while distracted. Especially when you’re trying to synthesize a bunch of ideas and make sure everything makes sense and nothing was forgotten. I sat for maybe an hour or two and did nothing but write a new HB 2703, occasionally pausing only to push my chair back and rub my temples. Finally, it was done. I ran it past Elise and the Health Department. I guess the Health Department didn’t really know what I had been planning all these weeks, and they weren’t exactly thrilled.
So, within 24 hours we sat down to go over the draft. There was giving and taking. I had moved the waiting period on birth certificates to 100 years from 125 years after birth. They said people over 100 are the most vulnerable to identity theft. I said, “Fine, but the oldest person on the planet is 117, can we shave five years off?” They sort of grimaced, and I just waved my hands and moved on. I had also moved the waiting period on death certificates from 75 to 50. They said that was not the model bill language.
“Model bill” is another way of saying statutory language that some other state or entity created that a lot of people have acknowledged is pretty good. Models bills might emanate from trade associations or think tanks or any number of groups. They are thoughtful and can be a good starting point, but my view is that you can’t be married to them. And in this case, citing “model bill” as the reason for the 75-year waiting period didn’t persuade me. I said that I really wanted 50. They said fine.
They also relented on lowering the waiting period for things to appear on their new online database. I took their other comments, many of which were very insightful and clearly demonstrated they knew their topic better than I did, and I drafted again. This second version they liked, and we moved forward with the conference committee process.
Basically, going to conference committee is like starting all over again. You have a bill, and you have to pass it through a committee in both chambers and on the floors of both chambers. But instead of spreading the process out over three months, it might all occur in 2-3 days.
In the House, there are conference committees that operate a lot like a normal House committee, and it meets in public. In the Senate, you are assigned a group of seven Senators, and you literally take your bill around to them individually, and they sign a sheet of paper signifying their approval. While Rep. Hall did her work over in the House, I spent most of a Republican caucus meeting quietly walking around and getting signatures.
A typical Senate conference committee has five Republicans and two Democrats. Normally, on a non-controversial bill, I would try to get the signatures of the Democrats, too. You only need four signatures, but a copy of the signature sheet will appear on the bill when it is heard in the full House and Senate, and I like sending the signal that the bill was bipartisan and that I took the time to visit the Democrats as well. In this case, time was the one thing I didn’t have. Once I had the Republicans, I walked the sheet over to Elise’s office. On May 26, she passed it 88-5. Now it was my turn.
This was the moment when my delays on HB 2703 almost cost me. As the final week of session evolved, it became evident I was going to present this to the full Senate on the final day of the 2016 session. I walked into the chamber that morning and told the Floor Leader I’d be happy to go anytime. He said he would “green me up” (because when an author tells him they are ready to go, he uses a green highlighter to highlight their name as it appears on the packet he carries with him all day).
I presented my bill, it sailed through (as I expected) on a 45-0 vote. And I sat down, having finally completed all of my legislative work for the year. There were maybe 15 bills left to go. Two or three bills later, the Senate abruptly adjourned for the year without notice to the members, killing maybe a dozen bills. Mine could have easily met that fate. But it didn’t, and the Governor signed it June 6th. It takes effect November 1st.
I never got a single letter about HB 2703. No one ever wrote an article about it. By reading this far, you’re one of the few Oklahomans who have ever thought about it, through between the online database and HB 2703′s other provisions, millions of people may one day benefit from it. And yet, HB 2703 never created strong opinions on either side, and probably would have passed in any condition. But HB 2703 is a great example of the Oklahoma legislative process, how deadlines drive action, and how we each strive to arrive at the best outcome for the people of Oklahoma, even when hardly anyone is paying attention.
Tomorrow, we’ll continue with another episode of #11BillsIn11Days.