As many of you know, several weeks ago, the House let its version of charter legislation (HB888) die on the calendar. SB2401, the Senate’s charter bill which was substantially similar to HB888, was defeated in the House Ed Committee last week by a vote of 15-16.
However, the legislative process is a long one and can be more than a little strange in Mississippi. There’s a saying around the Capitol that legislation isn’t really dead until it’s “dead, dead, dead.” This is because there are a variety of tricks that legislators can use to revive legislation after a bill has either died for lack of action or been voted down. I like to call bills that have been killed and then revived “zombie bills,” especially because the legislature refers to bills as “dead” or “not dead” as opposed to alive.
This is how it works: under the rules of both the House and the Senate, any legislation “not dead” can be amended to include whole bills that have died. What keeps the House and Senate from amending bills willy-nilly are rules in both houses that require amendments to be germane to the “not dead” bill (germane here specifically means that the amendment would refer to the same code section). Amendments that are not relevant to the code section in the “not dead” bill can make the new zombie bill subject to a point of order, which can automatically kill a bill (even a zombie bill). It is up to whomever is facilitating debate to rule on points of order. In the Senate, this is the Lt. Gov. usually, and in the House, this is usually the Speaker.
While everyone was carefully following HB888 and SB2401, the House rather quietly passed HB1152. Irony of ironies, this bill was originally requested by the Mississippi Department of Education to clarify the 2010 Conversion Charter School Act (currently law), which becomes active this year if the law is not amended or repealed in this session. After the House passed HB 1152, it went to the Senate and sat in the Senate Ed Committee until Tuesday, April 3, the deadline for committee action on bills originating in the opposing house. On that Tuesday, just a few hours before the House Ed Committee killed SB2401, Senate Ed passed HB1152 unamended.
By keeping alive HB1152, with the charter code section in it (Chapter 37-165 of the MS Code of 1972), the Senate set up a possible zombie bill. Through the use of the strike-all amendment on the Senate floor, the Senate could use HB1152 to revive SB2401 with whatever amendments it wanted, provided that the Senate voted to adopt the strike-all and then voted to pass the new zombie bill. This is exactly what happened Wednesday. The Senate strike-all to HB1152 is essentially SB2401 with a few tweaks to make it more palatable to the House. The Senate version of this bill has been added to our Charter Schools Resource Page, and a summary of the bill will be posted soon.
The House now has two options:
- Concur with the Senate changes and send the bill to the governor to sign, or
- Send the bill to conference committee, where a final version of the bill (conference report) would be crafted, then sent to both house for approval before it goes to the Governor.
It is very important that the zombie bill in question–HB1152–originated in the House. This is because the House’s rules on whether amendments are germane are more strict than the Senate’s rules. Speaker Gunn has even allowed a point of order to kill one of his own bills for the fault of not having the appropriate code sections in a bill. Since HB1152 did not originally include some of the code sections from SB2401, it is likely that someone would have called a point of order to kill the bill if the House had tried to do what the Senate did today.
But, generally, points of order on bills amended in the other house are not well-taken, meaning that they will not be recognized by the chair since this would cause a lot of heartache in both chambers for a variety of bills every session. Here’s another vagary–if the House votes to send the bill to conference, they have voted to kill the bill. Why? Because conference reports are subject to points of order to prevent legislators from using the conference process to insert lots of random language in any given bill.
Therefore, we are in a very interesting situation. If the House votes to concur with HB1152, it will go straight to the Governor, period. Therefore, House members will have no uncertainty when they cast their vote about whether they are just keeping a bill alive to be further amended with craziness later. A vote to concur is a vote for charter schools exactly as written in HB1152, no surprises.
If the House votes to send the bill to conference by April 26 (deadline to decide on concurrence with amendments), the charter bill is dead, dead. If this happens, the Governor has threatened a special session on charters.
Got all that?
We will continue to provide updates as the legislative process continues. If you have questions, please post them on the Mississippi First Facebook page.