Whether you are for or against the National Shooting Sports Foundation's lawsuit to overturn Connecticut's new gun control law, you will probably approve the grounds on which the challenge is based. I am not hoping, or expecting, this lawsuit to invalidate the law, but it makes an important point that could — and should — lead to changes in Connecticut's legislative process.
The complaint, filed Monday in federal court, is unusual among gun control suits. It barely mentions gun control, Second Amendment rights or even guns. This action is directed not at the substance of the law — which broadened the assault weapons ban and required background checks for firearms purchases — but at the way the General Assembly adopted it. Instead of putting the bill through the usual public hearings and floor debate and having it available to legislators in printed form two days before the vote, the legislative leaders invoked a shortcut called Emergency Certification, or e-cert.
The Connecticut General Statutes require the two-day rule but allow legislative leaders to waive it when they "have certified, in writing, the facts which in their opinion necessitate an immediate vote on such bill." But Senate President Pro Tem Donald Williams and Speaker of the House J. Brendan Sharkey did not certify any facts. They signed a form and disregarded the blank space provided for the explanation.
Using e-cert also allows the leadership to circumvent public hearings and the committee processes, the complaint alleges. "By abusing the emergency certification process," it says, "SB 1160 [the gun control bill] was able to bypass both of these processes, thereby depriving the citizens of Connecticut of any opportunity for their voices to be communicated to the legislators and incorporated into SB 1160."
If the plaintiffs prevail, it is unlikely to be because there was no real emergency. The statutes impose no standards to guide or limit the leaders' discretion in invoking e-cert, so it would be unusual for a court to invalidate a law based on a dispute over whether there really was an emergency.
The failure to certify any facts is a different matter. This is not a matter of discretion; it is a failure to satisfy the plain language of the statute. If the statute were a constitutional provision, the answer would be fairly clear. But is the legislature bound to follow procedural rules laid down by an earlier legislature?
The National Shooting Sports Foundation may overstate the case about the lack of public debate. Though there was none on the bill itself, there were extensive hearings on gun control after the Newtown massacre. But the foundation does make an important point about overriding the printing requirement. This is not just a technicality. Of legislation in particular, it is acutely true that the devil is in the details. A small change in language — or even punctuation — can alter a bill's meaning. As Sen. Joseph Markley, R-Southington, told me, "I'm not voting for a bill I haven't read." I doubt that Sen. Markley would have voted for it if he had read it, but doesn't he deserve that chance? Don't his constituents?
The legislature has used e-cert for convenience or political expediency in the absence of a true emergency a number of times. And e-cert is not the only device for avoiding public scrutiny. The recently enacted bill, sought by some families of Newtown victims, to prevent the release of previously publicly available pictures of crime scenes and videos was drafted in secret and presented to members close to the end of the legislative session.
Consider the irony of secretly drafting a bill to narrow the freedom of information law. The bill authorizing keno gambling in the state was also approved with no public hearing. And then there's the nearly 500-page budget-implementation bill, which often hides back-door legislative maneuvers.
I don't believe that the leaders were operating in bad faith. This was an extraordinarily busy session, and they were probably trying to expedite a bill for which they had the votes and the public support to assure passage. But for the people's representatives to do an end-run around open government leaves those who lose the battle even more bitter, fueling lawsuits like this.
If the problem is not enough time, maybe Connecticut should rethink its short legislative sessions and part-time legislature. This would require constitutional changes. In the meantime, let's hold hearings and let the legislators read the bills they are voting on. If not, at least let us know why, by filling in the blanks.
William V. Dunlap teaches constitutional law at Quinnipiac University School of Law.