The first casualties of emergency lawmaking occur during the shift of the basic mechanics of meetings and legislating, as new rules for conducting virtual meetings are adopted at the beginning of a session. The possibility exists that the COVID-19 pandemic could continue in some form or another for years, requiring the public, lobbyists and lawmakers to participate virtually in New Mexico’s legislative sessions, committee hearings and debates. The 60-day legislative session convening on Jan.19 may be a rough ride for legislators who are not fully computer or electronic savvy. Most will start the legislative session in their offices on their computers participating in a mostly virtual world while they conduct the business of lawmaking.
Now more than ever, the commitment to an open, accountable government is essential. A report by the Brennan Center for Justice details concepts lawmakers should consider for maintaining continuity during emergencies. No matter how well-intentioned, virtual creates expanded powers that are ripe for abuse and must not be used to shut down healthy deliberation or policymaking.
Leaders should not be able to stifle democratic debates and indiscriminately cut off opposing views. While some debates over emergency legislation may require special rules limiting the amount of time or the number of times a member can speak, or on the number of bills a member can introduce, these rules risk suppressing honest debate and dissent—a core feature of democratic legislatures. Virtual sessions need to be as similar as possible to in-person meetings, preserving real-time public access and public notice for all proceedings. Sweeping departures from regular order should be avoided, and modification of quorum rules done sparingly. Any significant departures should only be enacted in ways that respect core representative principles and avoid delegating additional power to legislative leaders and allow proxy voting only when necessary.
Virtual sessions must maintain transparency and openness, with clearly recorded votes ensuring transparent vote tabulation. Lawmakers and members of the public should be identified and audible in open sessions or meetings, and recordings should be made available to the public promptly via a government website. Public documents used, including testimony, should also be made available as they normally would.
The legislative process can be confusing and intimidating. Many New Mexicans lack access to the broadband internet needed to support video conferencing, and virtual meetings exclude those without internet access, particularly in the Indian Nations. Rural areas struggle with slow internet, and many people in the state lack either the equipment or the know-how to join a meeting electronically by video conference or by phone. On the plus side, New Mexicans will be able to participate in public hearings and watch committee meetings from their home. If they want to testify at a public hearing, remote participation—instead of having to drive all the way to the State House—is possible.
After the pandemic over half of Americans say they want to continue working remotely; two-thirds of companies say they may make their work-from-home policies permanent. Hopefully, lawmakers don’t get too comfortable at their desks. While electronic communication is sterile, safer and a lot cheaper, there’s something about being in a room together that’s very important for accountability. Technology can be used to augment the process of legislation, but it does not replace having meetings and legislative sessions with live people working together in the same space.