Thursday, July 17, 2003
Copyright © Las Vegas Review-Journal

COLUMN: Steve Sebelius

A day at the circus

RENO -- Lawmakers, lobbyists and lawyers crowd into the expansive, wood-paneled courtroom of U.S. District Court Judge Howard McKibben on the eighth floor of the federal courthouse downtown. Outside, the biggest little city wakes up and goes to work.

So do all Nevada's federal judges, as they take the bench here and in Las Vegas -- linked by a television set and scratchy audio. They're now players in the latest chapter of a comedy turned tragedy turned B-grade horror flick script.

The judges have convened the first en banc hearing in years to consider a petition filed by Republican lawmakers attacking a ruling by the Nevada Supreme Court, which essentially held the state constitution's requirement that tax increases receive two-thirds legislative support is optional. There's scarcely an empty seat in the house.

Attorney John Eastman of the conservative Claremont Institute Center for Constitutional Jurisprudence makes his arguments: "The Supreme Court of the state can't just act without regard for due process," says Eastman. "It just cannot ignore its own canons ... and just do whatever it wants."

McKibben is skeptical, wondering if the proper forum isn't a petition for rehearing or an appeal directly to the U.S. Supreme Court.

But his clients, led by Assemblywoman Sharron Angle, R-Reno, can't appeal because they were not parties to the original ruling, Eastman says. (It's partly true; Republicans did file a cross-petition in the lawsuit, in which Gov. Kenny Guinn sought to force the Legislature to approve a budget and school funding.)

Some state lawyers from the Legislative Counsel Bureau make additional arguments, but they are restrained by the fact that they still represent the entire body, whose members have taken to suing their own organization. There are more pointed questions, including a moment in which Chief U.S. District Court Judge Philip Pro confesses "a lack of zeal on the part of the federal court to get involved" in the case. Pity that the justices of the state Supreme Court couldn't suppress their own zeal -- to not only get involved, but to create a solution that even Guinn hadn't thought to request.

With that, the hearing ends, and Pro promises a prompt ruling. (One source said the judges worked all day on the ruling, which should be issued today.) They leave a temporary restraining order in place, and expand it a bit: Any tax bill needs two-thirds support, the order says.

Meanwhile, back in Carson City, efforts to get two-thirds are underway in earnest. Lawmakers, as before, come and go from Senate Majority Leader Bill Raggio's office. A scheduled 2 p.m. floor session begins shortly after 4 p.m. Senators leave their formal chambers and file into a meeting room as a "committee of the whole," sitting behind long desks in two rows of seats uncomfortably close to each other. The room is stuffy, and so is the dialogue. One observer slips in and out of consciousness as a result.

But everyone is awake for the denouement, unfolding in awkward, haphazard steps. A new bill draft request has been written, a plan relying on existing taxes with a couple of new levies, including a 2 percent tax on the wages of bank employees and an increase of the employee "head tax" to $200. It's amended, to charge banks $400 per employee, but to eliminate the 2 percent. A vote is held, and not only does the motion fail to get two-thirds, it doesn't even receive a simple majority.

The plan as written is offered in its place. It fails another roll call vote, and by an even bigger margin. Suddenly, state Sen. Joe Neal's idea of creating a fourth tier on the gross gambling tax -- 8 percent -- is starting to look good. But the assembled senators want more time to look over the fiscal details.

The realization dawns: The Legislature is practically no closer to finding a solution today than it was when the regular session convened. Back in February.

Tensions start to show: "Quite frankly, the chair is getting tired of caucus after caucus after caucus," Raggio says, referring to the confabs of Republicans and Democrats in both houses where nascent deals go to die. "Each of us can't just stand there rigid. We're trying to reach a two-thirds accord."

Sen. Mike Schneider, D-Las Vegas, suggests the heretofore unthinkable: figure out what the budget was in 2001, and continue it at those levels. "I don't think there's going to be a compromise, Mr. Chairman," he says. His words echo the thoughts of most everyone watching the sad spectacle.

In the end, senators agree to invite Assembly Minority Leader Lynn Hettrick to a committee meeting to ask him what it will take to get Republican support in the lower house. A time is set, the gavel comes down and everyone leaves.

Outside, the sun slowly sets behind the hills of Carson City.

Tomorrow is another day.

Steve Sebelius is a Review-Journal political columnist. His column runs Sunday, Tuesday and Thursday. Reach him at 383-0283 or by e-mail at SSebelius@reviewjournal.com.