Kris Kobach: Lawmaking skills are on decline among state legislators
It’s that time of year again. The Kansas and Missouri legislatures are rounding the corner for the final sprint of the 1999 lawmaking season. And, like a miler gasping for air in the final lap, the legislators are losing form. Things tend to get sloppy right about now.
At this point it is worth remembering what a difficult sport it is that our representatives play. Everything - absolutely everything- can turn on the choice of a single word.
Remember the 1994 Johnson County incident in which a man posing as a hospital employee was accused of raping three women who consented to be examined? He evaded a rape conviction because Kansas rape law had been written to require that the victim be “overcome by force or fear.”
The legislators had not considered that rape might occur by deception, rather than by force. They soon corrected their oversight.
Popular initiatives also must be worded with care. The 1994 Missouri riverboat gambling initiative authorized gambling boats to operate “only upon the Mississippi River and the Missouri River.” But what about a moat a few hundred feet from the river? The initiative didn’t contemplate this possibility, so when the Missouri Supreme Court ruled in 1997 that boats in moats were not permissible under the law, voters had to return to the polls in 1998 to give their approval once again.
Sometimes the ambiguity of poor lawmaking is downright comic. In 1998, the North Carolina Supreme Court had to decide the weighty question of what constitutes “private parts.” The state’s indecent exposure statute made it a crime to willfully show one’s private parts in a public place. However, the legislature never bothered to explain exactly what “private parts” includes.
The unfortunate prankster in the case mooned his neighbor and then hopped on his getaway vehicle - a bicycle - and rode away. Thus, the court was left to decide: Do buttocks constitute private parts? The court said yes.
Although such legislative snafus have been around since governments first started putting quill to parchment, the mistakes seem to be happening more frequently of late. Why is there such a decline in lawmaking skills? It’s hard to pinpoint any single source of the problem. But one development certainly bears mentioning: Fewer and fewer lawyers are serving in state legislatures.
This downward trend has occurred in virtually every state. In Missouri, lawyers now make up a minuscule 11 percent of the state legislature, compared with 23 percent in 1974. In Kansas, the figure is now 15 percent, down from 27 percent in 1972. At the University of Missouri-Kansas City School of Law, we are trying to fill the void by offering drafting assistance to Missouri and Kansas legislators.
But the fact remains that the frenetic final stretch of the legislative season will always engender sloppy lawmaking. Now is the time for the few lawyers left in the statehouses to step forward and put their training to work. If they fail, the consequences will remain with us long after the race is run.
Kris W. Kobach is a professor at the University of Missouri-Kansas City School of Law, where he teaches legislation and constitutional law and supervises the school’s Legislation Project. He also represents the 2nd Ward on the Overland Park City Council.
This story was originally published April 20, 1999 at 12:00 AM.