Are lawmakers right that their special Public Records law is more transparent?

OLYMPIA – Some legislators seem to be having a snit-fit over news coverage of their decision to exempt themselves from the Public Records Act in what seemed to be historically short order last week.

Their contention this actually provides MORE transparency is going largely unnoticed, they say, while the news media piles on about things like no real hearings, no committee votes or no floor debates, the boring stuff that most major – or even minor – changes in the law must endure. So what? they say. The new law is better than the way they’d been doing it, which was what their staff and attorneys had told them FOR YEARS was legal.

Some members of the public, too, may be a bit confused by the claims of better transparency, so let’s consider an analogy that may be more relatable than something as arcane as public records law.

Let’s say that you, Mr. or Ms. Legislator, were told when you first arrived in Olympia as a freshly minted representative or senator that when you are on official business, the regular traffic laws don’t apply to you. Speeding, talking on the phone, weaving back and forth through traffic, writing a text or even reading a newspaper was OK as long as you are going or coming from your legislative job. The Constitution protects you from arrest for a traffic offense, you were told.

So if you got a ticket for one of those things, like driving really fast down I-90 to get to Olympia for the session, you could tell the state trooper you were a legislator and he or she shouldn’t write you a ticket. If he or she did anyway, you could just turn it over to the House Clerk or Senate Secretary, and they might pay it, or tell the state patrol to buzz off, the Legislature is a separate branch of government not subject to traffic laws enforced by the executive branch.

This was great until recently when you got stopped for driving 90 mph in a construction zone; a colleague got a ticket for changing lanes without signaling while yakking on the phone; another for taking a selfie and posting it to Facebook; another for reading a magazine driving over Snoqualmie Pass, and so on for a long list of criminal traffic violations. Instead of law enforcement patting the top of the car and saying, “Have a nice day,” you all got summons to appear in court. As a group you hired a team of high-powered lawyers with taxpayers’ money to make the separation of powers argument and the “this was the way it has always been” argument. The judge told you all: “You’re breaking the law that applies to all drivers. Pay up.”

When you try to argue, the judge says, OK, we’ll ask the attorney general, because he’s the lawyer for the state, whether the law says what you think it says. The attorney general’s office says, no, that’s not what the Constitution means, and what you’ve been told ain’t the law. The judge is right, you have to abide by the same law as everybody else driving down the road.

Still convinced you’re right, you vow to take it all the way the Supreme Court. But then someone says “Hey, we make the law. We can change the law so there’s a different set of traffic laws for legislators on official business.”

A few of you have always been a bit leery of this special privilege, and say you probably don’t want to just wipe out all traffic laws for legislators. So a few lawyers and a few lawmakers get together and come up with a bill that says legislators can speed, but no faster than 100 mph, on official business. They can read texts or emails from constituents while driving, but not from lobbyists. And they can only post to Facebook things about legislation. They can do Twitter on official business while driving, but they can’t be swiping left or right on Tinder. They can read bill reports while driving, but not Playboy magazine.

When anyone says there’s no good way to tell if you’re talking or texting to constituents or lobbyists when driving next to you at 100 mph, you tell them not to worry. Any dispute over that can be appealed to one of two panels of legislators, one of which hasn’t met in person for nine years.

You know this isn’t going to be popular with law enforcement, which is getting pretty tired of stopping lawmakers for apparent traffic violations, or even with other drivers who still have to obey traffic laws or pay fines and higher insurance rates when they don’t. But you push it through the Legislature faster than any bill seen in years. Give less than 24 hours notice for public testimony. Put an emergency clause on it so it can’t be overturned by voters in a referendum. Make it retroactive so all those tickets you got last year are wiped out. And say the courts can’t review any of the appeals of decisions those committees make – because after all, you’re a separate branch of government.

So yes, Mr. or Ms. Legislator, you could truthfully say you had made yourselves more accountable to traffic laws on some points, and the highways and byways would indeed be a bit safer than they’d been. But there would still be some folks who would question what you did and the way you did it.

Like all analogies for an unprecedented action, this one isn’t perfect. A 1979 Attorney General’s opinion says legislators actually are exempt from some traffic rules, like normal speeding or texting while driving, which are civil infractions, but not the more serious criminal offenses like negligent driving, reckless driving or vehicular assault.

But if you substitute the voter-approved Public Records Act for traffic laws, the news media and others seeking public records for state troopers, along with other drivers for other state and local officials, and documents legislators have for driving offenses, you can probably get the general idea.