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Committees Incorrectly Use "Substitute" Motion to Radically Change Bills

David Iverson - February 23, 2023

  Nearly every governing body in the country uses Robert’s Rules of Order to run their meetings. Most legislatures, however, use a similar method of procedure known as Mason’s Manual of Legislature Procedure. Largely, the two are the same. While both are used in deliberative bodies, Mason’s is exclusively for legislatures. Most of the parliamentary procedures in either manual are the same and really only differ on subtle details.  One such difference is an obscure motion known as a “substitute bill.”  In Mason’s manual, this is used to rewrite a bill that has been heavily amended—to make the bill more readable. The motion replaces the original bill with a completely new one.     

Unfortunately, it is relatively difficult to get a copy of Mason’s. To purchase one you have to be actively involved in a legislative body. In addition to that, the book is horrendously expensive. To write this, I located a 1953 online copy. For the most part, the big rules in each manual don’t change all that much year to year; and even then, any changes usually only pertain to grammar. That being said, according to an old and outdated copy of Mason’s Manual of Legislative Procedure from 1953, “When a measure is being considered by sections, a substitutefor the entire measure cannot be moved until the sections have all been considered and the presiding officer has announced that the proposition is open to amendment.  Even  though an entire measure is substituted for another, it is necessary afterwards to vote on adopting the measure. Substitution is only a form of amendment and may be used, so long as germane, whenever amendments are in order.”   The key word in that quotation is “germane.” A measure that doesn’t change the original intent, and logically follows from the original version is considered germane. According to Mason’s, a substitute bill must begin with the chairman of the committee.   The 2023 version of the Wyoming Manual of Legislative Procedure says the same thing.     

Multiple committees this year have taken to using substitute motions to radically change bills that have been referred to them. Both the House Appropriations and House Revenue Committees have altered bills in this fashion. Early on in the session, Representative Jeremy Haroldson’s (R-Laramie,Platte) HB00105 Repeal Gun Free Zones and Preemption Amendments was referred to the House Appropriations Committee for review. Members of this body include Representatives Bob Nicholas--Chairman (R-Laramie), Lloyd Larsen (R-Fremont), Tom Walters (R-Natrona), Trey Sherwood (D-Albany), Bill Henderson (R-Laramie), Clark Stith (R-Sweetwater) and Dave Zwonitzer (R-Laramie).     

HB00105 would have eliminated nearly all gun-free zones. Using a substitute bill that was reportedly written by Speaker of the House Albert Sommers and brought by Representative Sherwood, Appropriations turned HB00105 into a bill creating an entirely new kind of concealed carry permit. Instead of completely eliminating most gun-free zones, if the bill had passed, a whole new set of firearms regulations would have been created.      

Senator Bo Biteman (R-Sheridan) had two bills referred to Appropriations, both of which would have banned ESG practices in the State of Wyoming.  Sources high up in Wyoming government who wish to remain anonymous told Cowboy State Politics that Governor Mark Gordon himself pushed for substitute bills on both of these measures. Representative Lloyd Larsen brought the motion to substitute a new bill in place of  Biteman’s SF0172.  By the time Appropriations was finished, neither of Biteman’s bills would have banned ESG practices.  Essentially, the bills were changed from measures that would have clear enforcement to bills that had none. The original legislation would have placed restrictions on state investments with entities engaged in ESG practices.     

When asked for his comment on the committee’s actions Biteman said, “To treat a sitting fellow legislator like this, in a public committee, which is actually a public execution not a public committee; but nonetheless to spring a substitute bill on me in committee, without me even knowing about it, seeing it, I just say, shame on you.”      

Crafted by Senator Lynn Hutchings (R-Laramie), SF0151, the Wyoming Prescription Drug Transparency Act, would have placed significant restrictions on the operation of prescription benefit managers (PBMs). According to Hutchings, these companies are able to take advantage of discounts and special benefits that smaller, sole proprietor pharmacies are not. In committee, the senator said her bill would have leveled the playing field. The House Revenue Committee, to which the bill was referred, amended the bill to such an extent that it actually protected PBMs.      

At the beginning of the hearing, Hutchings asked Committee Chairman, Steve Harshman (R-Natrona) if a substitute bill existed. To which he replied, “That’ll be brought up during the amendment process.” She replied that she thought it was rude not to inform her ahead of time. Other members of the Revenue Committee told Cowboy State Politics that the substitute bill was indeed contained in their committee folder. Though neither Harshman nor Rep Dan Zwonitzer (R-Laramie) uttered the word “substitute” during the hearing, the level to which Zwonitzer amended SF0151 clearly would have necessitated a substitute bill.      

After Zwonitzer was finished amending the bill, Representative John Bear (R-Campbell) pointed out that the bill, post amendments, actually protected prescription monopolies instead of regulating them. Senator Hutchings asked Chairman Harshman for permission to address the body. She said, “I have never seen anything like this in my life. Today is one day out of 13 years of being involved with the Legislature that I’m ashamed to be a legislator.”      

Neither Haroldson, Biteman nor Hutchings was told ahead of time what the committees were planning. Typically, when a fellow legislator is planning on amending a bill, the sponsor of the legislation is told ahead of time. It would make sense to include the person who researched, wrote and worked on the bill to participate in any change to their bill. None of this was done. All three legislators expressed that they had never heard of a committee doing this to a fellow legislator.      

None of the four instances in which a substitute bill was used in committee, on-face, met the definition of germane.In parliamentary procedure though, a violation that is not objected to is not a violation of procedure. In other words, a sitting member of the respective committee would have had to object to any substitution bill. That didn’t happen. Technically, once a committee begins working on a bill, the bill’s author no longer has any say in what happens to it. It literally becomes property of the committee. That means they can do anything they want with any bill regardless of what its author says. While all three legislators consider the actions of House Appropriations rude and unprecedented, there is nothing that can be done.