Legislature Mike Foley

Lt. Gov. Mike Foley presides over the Legislature in 2018.

At the beginning of Wednesday's legislative debate, senators stood in support of Sen. Tom Briese's painstaking effort to keep Nebraska in compliance with the Tobacco Master Settlement Agreement.

But a slip of the tongue launched the Legislature into a sometimes acrimonious debate about the rules governing senators on the floor and how they are applied by the presiding officer.

Omaha Sen. Machaela Cavanaugh attempted to amend Briese's bill (LB397) with a proposal she introduced earlier this year that would raise the cigarette tax from 64 cents per pack to $1.64 per pack and distribute the new revenue to property tax relief, Medicaid expansion, cancer research and other programs.

Briese said he didn't believe Cavanaugh's amendment was germane to his bill, because it directed the new revenue into an expanded list of programs. Amendments must be close enough in subject matter and in statute to be attached, and Briese had told Cavanaugh so before debate began.

The Albion senator rose to ask for a point of order, to raise the issue of germaneness, but mistakenly asked for a point of personal privilege instead.

When Lt. Gov. Mike Foley, the presiding officer, allowed him to proceed, and Briese began discussing the legislative matter at hand, Omaha Sen. Ernie Chambers called him to order.

Personal privilege, according to the rules, "shall not be used to permit any discussion or debate pertaining to any measure pending before the Legislature." Chambers said Briese had violated that rule when he began to discuss Cavanaugh's amendment.

Foley seemingly ignored Chambers, and allowed Briese to keep speaking. Chambers stood up once more to point out the rules transgression, and finding his microphone was not turned on, began shouting his objection over Briese.

Briese concluded his remarks, and Cavanaugh was given time to explain her reasons for why the amendment was related to Briese’s bill, after which the two spoke privately with Foley.

The lieutenant governor ruled Cavanaugh’s amendment was not germane, Cavanaugh filed a motion to override Foley’s decision, and the proceedings ground to a halt.

An incensed Chambers directed his ire at Foley, whom he called “a flunky” who imposed the governor’s political will on the Legislature rather than treating it as a co-equal branch of government.

“This place is not a place of lawmaking, it’s a place of lawbreaking by those who have a duty to uphold the law,” Chambers said, adding later Foley would not “shut me up” and would have to deputize the sergeants-at-arms “into a lynch mob” to remove him from the legislative chamber.

Lincoln Sen. Kate Bolz said Foley was not fairly applying the rules, and said circumventing the rules erodes transparency and trust among senators and the people they represent.

After Bolz concluded, Foley explained that Briese had spoken to him privately and informed him he intended to question the germaneness of Cavanaugh’s amendment through a point of order.

Despite asking for a point of personal privilege, Foley said he understood Briese's request as one for a point of order and allowed him to proceed.

His explanation set off a new debate over whether Foley should have heeded Chambers’ call to bring Briese to order to follow the strict letter outlined in the rulebook.

The Rules of the Legislature say when the presiding officer or a member calls another member to order, that senator “shall immediately sit down, unless permitted on motion of another member to explain, and the Legislature shall, if appealed to, decide the case without debate.”

Not following the process outlined in the rulebook was a “serious mistake,” according to several senators.

“There’s a reason why we have rules and order,” said Sen. Adam Morfeld. If a member steps out of line, even if it was a mistake or done in good faith, that individual needs to be called to order, he added.

Morfeld and Sen. Anna Wishart, both of Lincoln, called on Speaker Jim Scheer to pull the bill from the agenda until the Legislature could sort out the rules infraction and put the body back in order.

Wishart likened the debate to the questions about rules and officiating that hung over the NFL earlier this year when the referees missed a blatant pass interference penalty committed against the New Orleans Saints by a Los Angeles Rams defender.

Taking to Foley’s defense, Lincoln Sen. Mike Hilgers said the lieutenant governor, speaker of the Legislature or their designee can use discretion when serving as the presiding officer. Foley, knowing Briese intended to ask for a point of order, used that discretion, Hilgers said.

But Chambers said the language in the rules was clear and not up for interpretation: “Rules are designed to govern how a body such as the Legislature will proceed. The rules declare what is allowed and what is not.”

With more than four decades’ experience as a senator, Chambers accused Republican members of the officially nonpartisan Legislature of interpreting the rules to their political needs.

When Foley made a determination on Cavanaugh’s amendment, Chambers said, senators appointed or "purchased" by the governor rushed to back his decision instead of respecting the institution of the Legislature.

Ultimately, Cavanaugh’s motion to override Foley’s ruling on the germaneness of her amendment failed 27-20.

Near the end of Wednesday's debate, Briese said if there was a lesson to be learned, it was about the need for precise language on the floor.

"I could have sat down and popped right back up with a point of order, and we could have had the same debate just 20 seconds later," Briese said during an interview.

Reaching the three-hour time limit on debate shortly after noon, LB397 was pulled from the agenda. It will likely return next week, and Cavanaugh said she will reintroduce a similar amendment.

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Reach the writer at 402-473-7120 or cdunker@journalstar.com.

On Twitter @ChrisDunkerLJS.


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