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Bills often fail to get past COW

The Committee of the Whole, the last chance to amend measures in either chamber before bills go to the floor for a third read, can represent a tremendous hurdle for lawmakers guiding their legislation through the process.

Senators and representatives must be prepared for anything and everything — a hostile amendment from across the aisle, missing lawmakers throwing off vote counts, and lobbyists scrambling to push last-minute amendments to secure enough support.

Bills have been retained in the Committee of the Whole, better known as COW, 81 times total in the House and Senate. Bills are typically retained at the sponsors’ request if any one thing goes wrong and a sponsor loses confidence that a bill will pass.

Of those, five bills have been retained in COW twice in the House. Eight bills have been retained more than once in the Senate, including one that was retained three times while lawmakers worked on an amendment to HB2404, a measure that creates a statewide building code for residential energy efficiency.

Despite their tribulations, some have managed to move along through the legislative process. Others have met their end, leaving lawmakers to wait until next year to try again from scratch.

Sparing the sponsor grief

Sen. Kelli Ward’s SB1112, aimed at prohibiting the enforcement of any new federal gun laws in Arizona, was retained in the Committee of the Whole on March 13 and has never been scheduled for a vote again. Ward, R-Lake Havasu City, said it didn’t make sense to push through legislation that would likely have failed — not enough Republicans supported the measure, she said — and Sen. Steve Gallardo was prepared to inundate the bill with a series of hostile amendments aimed at mocking it while also pushing gun control measures that he introduced but failed to get a hearing.

The Phoenix Democrat would later use the same tactic on a House bill banning municipalities from destroying firearms.  Gallardo proposed 17 amendments to the bill, all of which failed.

As in standing committees, bills that lack the votes to pass are often withheld from the COW agenda to spare the sponsor the grief of watching their measures die in a vote.

Rep. Paul Boyer, R-Phoenix, a freshman lawmaker who has been around the Legislature for several years, said it’s rare to see something fail in COW. “You’ll see amendments not make it out of COW, but I’d be hard-pressed to think of one time I’ve seen a bill not make it out of COW,” he said.

Boyer’s HB2458, a measure to help weed out fraud in Arizona’s Empowerment Scholarship accounts, was retained twice in the Senate before an amendment was ready to ensure support for the bill. It ultimately passed COW and was approved 28-0 by the Senate on third read.

Boyer said if his bills don’t have support, he won’t ask leadership to schedule a vote.

He said he’s only had one bill die in committee, HB2488, a bill to authorize schools that vote to extend the school year to 200 days to increase their base funding level. The measure failed on a 4-5 vote in the Senate Education Committee on March 21.

“And everyone in committee was shocked. I heard a collective gasp behind me,” Boyer said.

Pursuing other options

Other lawmakers are content to let legislation die prior to a vote in the Committee of the Whole because they know full well there are other ways for measures to be approved at the Capitol. Sen. Kimberly Yee, R-Phoenix, had her SB1444 retained twice on the COW calendar and die.

The bill, which would create a performance funding mechanism to reward schools with better graduation rates, lower dropout rates and overall academic growth, is a priority of Gov. Jan Brewer and was a key part of her State of the State speech in January. Its failure in the legislative process only means the plan to phase in performance funding as a part of Arizona’s school finance formula over the next five years will come back up in the budget, Yee said.

“All along I think the executive expected that any type of money bill would have to be a part of the budget,” Yee said.

The bill was held up for the usual reasons — when first retained on March 6, the Ninth Floor hadn’t finished preparing an amendment, so the bill was held back.

It was retained again on March 11, when Yee requested the bill be held after a hostile amendment was introduced by a Senate Democrat.

Senate Minority Leader Leah Landrum Taylor, D-Phoenix, introduced an amendment that day in COW that would have stripped the legislation of parts of its funding mechanism. Yee worried that there weren’t enough Republicans on the floor to defeat the amendment.

The Senate Republicans’ 17-13 majority has not always been strong this year, Yee said.  If any two members are ever absent or there’s concern that GOP senators may vote across the aisle, lawmakers begin to worry that their bills may not clear the chamber.

“The Senate has really had some attendance issues, as you know, this year. It’s a big day when all 30 of us are there,” Yee said. “So that by itself, because of the slim majority that the Republicans have, we have had to retain bills when there have been hostile amendments.”

Retained three times

The sole bill to be retained three times in Committee of the Whole, HB2404, was finally approved on April 25 and now awaits third read in the upper chamber. A controversial striker amendment to Rep. Heather Carter’s bill caused the delay in the Senate.

Sen. Gail Griffin, R-Hereford, introduced SB1321, a measure pushed by the Homebuilders Association of Central Arizona that would have declared residential energy efficiency a statewide concern and mandated Arizona cities and towns allow homes to be built in compliance with the Home Energy Rating System Index, better known as HERS.

Griffin touted that the measure gives homebuilders and consumers more options when choosing how to construct their homes.  HERS ratings would provide an alternative to the more stringent standards adopted in city and county codes for residential energy efficiency.

Critics blasted the bill as an attempt to create a statewide mandate that usurped local control over the building construction code, and criticized the HERS rating required in Griffin’s bill as a standard that’s cheaper for homebuilders but less efficient and more costly for homeowners in the long run.

“While there is a lot of discussion about flexibility, we’re really prohibiting our cities and towns from having that flexibility and doing more than what is required,” said Sandy Bahr, director of the Grand Canyon Chapter of the Sierra Club, at a House Energy, Environment and Natural Resources Committee hearing in March.

The bill failed in that committee by a 4-4 vote, but just days later, Griffin added the measure in her Government and Environment Committee to Carter’s HB2404.

Griffin’s measure was retained on the Committee of the Whole calendar in the Senate three times before it came to a vote.  At one point, Biggs said he scheduled the vote in COW to urge lawmakers and lobbyists supporting the measure to hurry up and get an amendment ready.

There are times when “we’ve been hanging on to it forever and they can’t get the amendment done, so we’ve put it on (the calendar) hoping to inspire them to get their amendment done,” Biggs said. “We’re not trying to kill the bill, we’re just saying ‘Here it is, we’re ready to go. Are you ready to go?’”

Griffin had an amendment ready on April 25 that aimed to ease concerns of officials in cities and towns who argued that the bill is a mandate on municipalities. The amendment was approved, but it didn’t win over some Democratic lawmakers.

HB2404 “will create a different standard, and one that’s misleading for the state,” said Sen. Anna Tovar,

D-Phoenix. “It suppresses innovation and allows homes that are not energy efficient to be labeled as such.”

Measures retained in Senate COW

Bill number Sponsor Retained COW action
H2242 Stevens 2 Approved
H2404 Carter 3 Approved
H2458 Boyer 2 Approved
H2535 Olson 2 Approved
S1363 Murphy 2 Approved
S1403 Burges 2 Approved
S1413 Murphy 2 Approved
S1444 Yee 2 NA

Measures retained in House COW

Bill number Sponsor Retained COW action
H2046 Carter 2 NA
H2147 Peterson 2 Approved
H2183 Fann 2 Approved
H2238 Stevens 2 NA
H2264 Forese 2 NA

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