LB43 Floor Debate (January 23, 2024)

 

KELLY: Thank you, Mr. Clerk. Senator Sanders, you are recognized open

 on LB43.

 SANDERS: Good morning, Mr. President, and members of the Legislature.

 I stand here today to bring LB43 before you. Earlier on in our

 education, we were taught about the separation of powers among three

 branches of government and the importance of each separation. The

 separation of the branches are critical in ensuring the individual

 liberty is protected. State agencies, which are often under the

 umbrella of the executive branch derive their powers from authority

 granted by the legislative branch. LB43 aims to guide hearing officers

 and judges concerning how the legislator believes they should treat

 agencies in interpretation of either statutory or regulatory language

 when a challenge is brought through the court system. Judicial

 deference is a concept in administrative law by which courts are

 expected to defer the administrative agency’s interpretation of a

 statute or regulation if the legislative language is unclear. Some

 have argued that judicial deference has contributed to the growth of

 administrative agency powers, a more powerful bureaucracy. The goal is

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 to make the legislative language clearer. The question raised by the

 legislators– the legislation is this: if there’s a dispute in the

 courts or in some judicial administration hearing about regulations or

 statutory meaning, who then should the court hearing officer listen

 to? Deference to the administrative agency grants power to an

 unelected branch of government to define its own power. LB43 gives the

 Legislature the ability to guide the hearing officers and judges about

 the use of differences– deference in case interpreting statutory or

 regulatory language. This bill says that rather than on– than going

 to an agency for definition, the court should use customary tools of

 interpretation like the statutes wording, its legislative history,

 legislative hearing records, and so on. However, if those do not

 provide clarity for deciding a dispute, the court should resolve the

 remaining doubt in favor of an interpretation that limits agency power

 and maximizes individual liberties. In our system of government, it’s

 important for the Legislature, the people– people’s branch of the

 government to say what it means when granting authority to executive

 branch agencies, and we must protect the legislative branches’

 authority to legislate. When we are unclear, the judicial branch

 should decide cases to protect the liberty interests of citizens

 rather than protecting the power of the executive agencies. I want to

 thank Chairman Brewer and my colleagues on the Government, Veterans

 and Military Affairs Committee [SIC] for prioritizing LB43, and I am

 pleased that it could be the vehicle for other bills as well. Thank

 you, Mr. President.

 KELLY: Thank you, Senator Sanders. As stated, there is a committee

 amendment. Senator Brewer, you are recognized to open.

 BREWER: Thank you, Mr. President, and good morning, colleagues. I

 would like to start by thanking Senator Sanders for providing our LB43

 to carry our, our committee priority. So Senator Sanders’ LB43 was

 heard in the Government Committee last year on February 9, and we

 heard from several different organizations that testified in support

 of the bill to include the Platte Institute, Pacific Legal Foundation,

 and the Nebraska Association of Public Employees. The Bar Association

 came in opposition of the bill. The Attorney General’s Office was

 neutral with some technical concerns. Seven members of the committee

 voted to advance LB43 out of the committee with AM2076. We had one

 member that was absent. The bill was designated as 1 of the committee

 priority bills with our committee amendment. We added provisions from

 5 other bills onto LB43. Those bills include Senator Hansen’s LB41, my

 LB277, Senator Sanders’ LB297, Senator Conrad’s LB366, and Senator

 McDonnell’s LB650. We had to tweak a few of the bills to get them in

 shape to be considered on the floor. Our committee statement includes

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 additional details on those changes. These packages focus on 2 primary

 areas: the– we call APA, the Administrative Procedure Act, and the

 public records law. This bill, as amended, would protect Nebraskans

 and their Nebraska charities from bureaucratic overreach. It would

 protect religious freedom and the wearing of tribal regalia by Native

 students. It would improve government transparency and protect our

 cyberspace efforts by modifying the public record laws. We have

 reached out to the other senators that I’ve listed on that list of

 bills, and have asked them to go ahead and to get in the queue and

 address their specific bill one by one. I’ll do the same thing for

 LB277 here in a minute. I would ask that we get your green vote on

 AM2073 [SIC] and on the base bill, LB43. Thank you, Mr. President.

 KELLY: Thank you, Senator Brewer. Mr. Clerk, for an item.

 CLERK: Mr. President, Senator John Cavanaugh would move to amend the

 committee amendments with AM2081.

 KELLY: Senator John Cavanaugh, you’re recognized to open.

 J. CAVANAUGH: Thank you, Mr. President. Thank you, colleagues. Thank

 you, Senator Brewer and Senator Sanders, for bringing this bill and

 the other folks who brought other parts of this bill. I think LB43

 with AM2076 has some really good parts. And so my proposed amendment,

 I think, is more of a technical suggestion as to 1 specific section,

 which happens to be Senator Brewer’s. So LB43, the underlying bill

 sets a standard of review for courts and agency hearing officers to

 favor the individual litigant or the, the private person when dealing

 with government regulations or controversies involving the government.

 It’s meant to be a restraint on government authority and on the

 private citizen. My amendment AM2081 to the committee amendment which

 is– addresses LB277, the First Freedom Act. LB277 would allow for

 citizens to bring a cause of action against a state agency or

 political subdivision for violations of the First Freedom Act,

 specifically for substantially burdening a person’s right to exercise

 their religion. My amendment would clarify that this cause of action

 could not be used to challenge any provision of law or the

 implementation of law that provides for or requires protections

 against discrimination or the promotion of equal opportunity,

 including Age Discrimination in Employment Act, the Nebraska Fair

 Employment Practice Act, the Nebraska Fair Housing Act, and the

 federal Americans with Disabilities Act. Employers would provide wages

 or other compensation or any benefit including leave, standard

 protections– standards protecting collective activity in the

 workplace, protections against child labor abuse or exploitation, or

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 access to information about referral for or provision of coverage for

 any healthcare item or service, any item of government contract grant,

 cooperative agreement, or other award that requires any good– goods,

 services, function or activity to be performed for or provided to any

 beneficiary or participant in a program activity funded by such

 government contract or grant or any goods, services or benefit or

 accommodation provided by the government to the extent that the

 application of the First Freedom Act would result in denying a person

 the full and equal enjoyment of such goods and services or benefits.

 It’s important that this bill be a– be a shield to protect religious

 freedom rights of people, and not a sword to challenge well-settled

 nondiscrimination law or employment protections. This is particularly

 true with various federal laws that the state must abide by,

 regardless of our own state policy or opinion. We cannot pass laws

 that directly or indirectly, by providing cause of action, contradict

 federal nondiscrimination law. And, and this amendment clarifies that.

 Additionally, any bargained agreement or community development project

 or other matter that are enforced by this contract cannot be undone by

 the Legislature. So this bill, in its current form, is not clear on

 whether the cause of actions could be challenged by law or contract

 and should– and we should make that clear. So if you look at the

 committee statement of LB30– or LB43 and the committee statement

 LB277, there were opponents of this bill. And I think my amendment

 addresses a number of their concerns. So I’d appreciate your green

 vote on my amendment. Thank you, Mr. President.

 KELLY: Thank you, Senator Cavanaugh. Moving to the queue. Senator

 Conrad, you’re recognized to speak.

 CONRAD: Thank you, Mr. President, and good morning, colleagues. I

 actually wasn’t planning to talk much today after the rules debate and

 LB16 yesterday. But then I was delighted to see that the Speaker had

 put our Government Committee bill, LB43, on the agenda. And I will

 tell you, it is a distinct honor and joy to work with my colleagues on

 the Government, Veterans and Military Affairs Committee [SIC] under

 the leadership of my friend Senator Tom Brewer. And like most

 committees in this body, if you look at the membership, of course, not

 only is there a diversity in terms of where we hail from

 geographically, but from an ideological perspective, from a political

 philosophy perspective is an incredibly diverse committee, and it

 makes for some really excellent dialogue and debate at the committee

 level and in our internal Executive Sessions as well. And so, first of

 all, on that note, I’d encourage you, colleagues, to look at the

 committee statement for LB43 and look at the diversity and strong

 support from myself and colleagues across the state and the political

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 spectrum in support of this measure and its component parts. The other

 thing, before we get into the minutia of important legal and policy

 issues that I want to kind of help set the table with is, what I see

 in this Government Committee package is the through line or the

 connection of the disparate parts, the connection of those dots is an

 effort by the Government Committee to reset the balance, to “retip”

 the scales in the right direction towards individual rights, personal

 freedom, and personal liberty, and away from big government

 gatekeeping and bureaucracy. So that’s kind of the through line that

 I’m thinking about when I look at what LB43 does in terms of

 instituting and establishing a clear personal liberty lens in APA

 practice. When I look at the amendment that covers the components of

 my public records reform measures that put stronger tools in the hands

 of citizens to hold their government accountable. When I look at the

 other measures that Senator, my friend Senator Ben Hansen brought

 forward to ensure personal privacy and donor privacy for those who are

 exercising their First Amendment rights to associate, to give to

 charitable organizations, and to ensure that there’s not undue or

 unnecessary or even punitive reports or other matters put on

 nonprofits in regards to how they go about pursuing their mission,

 which may include advocacy, of course. So I think that there really is

 a lot of moving parts in this committee amendment. I think on the

 whole, it is very strong and very smart, and it resets the right

 balance to individual rights and liberties. I expect that we will have

 a serious and legitimate and important debate when it comes to aspects

 of the First Freedom Act. And I will note just at the outset, there–

 this is one of the most controversial and complex areas of the law

 that has evolved over our history on the federal level, on the state

 level, in the state courts, at the federal–in the federal courts. And

 there’s not a lot of easy answers here, but I think–

 KELLY: One minute.

 CONRAD:

–we’re going to do our best– thank you, Mr. President– to

 sort it out together. I think one of the important takeaways that

 people should think about when they’re looking at the First Freedom

 Act is how Religious Freedom Restoration Act historically have been

 used to protect those who exercised a, quote unquote, minority

 religion, whether that’s Hindu, whether that’s Muslim, whether that’s

 Jewish, whether that’s Indigenous religions. And that has been really

 the primary utilization of those acts. Now, of course, due to recent

 controversies, it does spark concern for some issues related to LGBTQ

 rights or other aspects of civil rights. But I’m happy to be a

 productive member of the discussion, answer questions on or off the

 mic, and look forward to a great debate. Thank you.

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 KELLY: Thank you, Senator Conrad. Senator Dungan, you’re recognized to

 speak.

 DUNGAN: Thank you, Mr. President, and good morning, colleagues. I do

 rise in support of Senator John Cavanaugh’s amendment. And I’m, I’m

 still, I guess, open to debate and kind of back and forth on whether

 or not I support the underlying LB43 and AM2076. I would agree with

 Senator Conrad and also Senator Sanders in her opening when we talked

 about sort of one of the– one of the most important things we learned

 in civics early on is the importance of freedom of religion. And,

 obviously, freedom of religion means you have the, the right to

 exercise your religion without impediment or without the government

 telling you, you can’t– what you can or can’t do. I always believe in

 that and I think that we need to make sure that that stays enshrined

 in our laws. I also think, however, we have to ensure that it doesn’t

 go too far in the other direction. Like all things, it’s a balancing

 act. We have to make sure that one person’s individual exercise of

 religion does not go so far as to encroach on somebody else’s rights.

 Certainly, I think that the constitution allows all of us to practice

 our religion in whatever way we see fit. But I think we have to make

 sure that we don’t push that on other people. And so I think that LB43

 seeks to strike that balance. And I appreciate the hard work of the

 Government Committee. Senator Brewer, I think, in his amendments here

 speak to a number of those issues. And so I, I do think that that’s

 something that we should consider when we’re debating whether or not

 to implement laws like LB43 is how we strike that balance. Senator

 John Cavanaugh’s amendment, I think, seeks to further clarify some of

 the concerns that myself and others have had. And so I would encourage

 my colleagues to, to vote yes on that. I do have some underlying

 concerns with the bill with regards to just the structure of it and

 how it works. Regardless of whether or not one supports the underlying

 concept, I think we have to make sure these things function and, and

 just have answers to questions. And looking at this from a criminal

 law perspective, I just have a couple of, of concerns that I was

 wondering if anybody could answer. I don’t know who exactly to ask

 these questions to. But a good example of this is on page 2, line 23,

 Section 4. It talks about how a person or religious organization may

 bring a civil action or assert a violation of this law in an

 impending– or an impending violation as a defense in a judicial

 proceeding. So what that seems to imply is that a person would be able

 to assert a violation of this law as a defense in any kind of judicial

 proceeding, which to me would also include criminal matters. So the

 question that I have there is, in the event that, let’s say someone is

 charged with child abuse, would an assertion that their religious

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 freedoms are being violated be a defense to that child abuse charge?

 And, if so, how would that work? Does this create an affirmative

 defense wherein the defendant would have to put on some evidence and

 have the burden shift back to them to demonstrate how this act is

 being violated, which would then create a defense to that law? Is it a

 defense that would be considered by a jury or by a judge, simply by

 the allegation that this act has been violated? I just don’t know. And

 at what point do you then, I guess, weigh the validity of the

 religious violation? Does the court then have to make the

 determination about whether or not it’s a, a closely held or validly

 held religious belief? Do they have to find that the charge actually

 does violate the tenets of that religious belief? There’s just a lot

 of questions I have with regards to how that would be implemented.

 It’s not just a hypothetical. There have been cases here in Nebraska

 where people have actually alleged, as part of the defense or as at

 least a part of the proceedings, that their church has gotten involved

 in the process or that they’ve had their religious beliefs violated.

 And so I, I think that it’s something we absolutely will see come up.

 And I’m just curious what the interplay would be between Section 4 and

 a criminal defense perspective. Another question that I have here,

 specifically about Section 4, just reading it out loud, it says: a

 person or religious organization whose exercise of religion–

 ARCH: One minute.

 DUNGAN:

–or religious service– thank you, Mr. President–

 has been

 burdened or restricted or is likely to be burdened or restricted in

 violation of the First Freedom Act may bring a civil action or assert

 such a violation. The fact that it also allows for the civil action to

 be brought simply because their religious service or exercise of

 religion is likely to be burdened, I think creates a ripeness issue. I

 don’t know when we necessarily determine, I guess is there– when that

 violation could potentially happen down the road. Is it some sort of

 proximate cause argument? There’s just a number of issues, I think,

 with that sentence that I just, from a legal perspective, would

 appreciate a little more clarity with regard to the exercise of how

 that would– that would play out. Happy to have a conversation with

 this with my colleagues off the mic. I think, again, the sentiment of

 the bill is one that is good. I just want to make sure that it

 actually functions. And I think Senator John Cavanaugh’s amendment

 does seek to answer a few of those questions. Thank you, Mr.

 President.

 ARCH: Senator Fredrickson, you’re recognized to speak.

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 FREDRICKSON: Thank you, Mr. President. Good morning, colleagues. Good

 morning, Nebraskans. I, too, have been listening closely to the debate

 here today, and I’m really excited and interested in discussing this

 further. I appreciate Senator Sanders dedication to ensuring we have

 clear legislative intent. I think that she did a really nice job in

 her opening describing why LB43, in particular, is important. And it’s

 also, I think, important in ensuring that our 3 coequal branches of

 government remain, in fact, coequal, and that we do not defer or give

 power away from the legislative body and vice versa from the executive

 branch or from the judicial branch. So I appreciate Senator Sanders

 for bringing this bill and to the Government Committee for

 prioritizing this bill and all the other folks who have introduced

 individual bills in here. There are a number of really good things in

 this package. One of the main components of the bill, like some of my

 colleagues have already been discussing, is LB277, which was

 originally introduced by Senator Brewer. And this includes really

 important protections for Native American students in our schools. And

 let’s be absolutely 100% clear about this, these protections

 absolutely need to be put into law. Native Americans have faced

 enormous historical discrimination to practice their religious customs

 from placement in boarding schools, to forced attire, to forced

 cutting of hair, and many other atrocities. The history of

 discrimination against Native people is long and very, very, very

 cruel. One of the things that gives me a bit of pause as I consider

 the committee amendment AM2076 and specifically LB277’s component is

 what has recently been happening surrounding the LGBTQ community and

 how religious freedom has been used and weaponized in ways that are

 far beyond an expression of simple religious faith. Section 3 of this

 bill is very broadly written, sometimes with good intent. There may

 still be unintended consequences. And for some people, some of these

 consequences as it relates to the community– to my community may

 sadly be intended. Some people might look at this part as a license to

 weaponize religious freedom. So we have seen court cases play out in

 this very subject matter. And I think it’s incumbent upon us, and I’m

 listening to all the discussion to make sure that we are intentional

 about the effects of this. That’s why I support Senator John

 Cavanaugh’s amendment, AM281 [SIC–AM2081], because I think it brings

 added clarity to this very strong package of bills. Like I said

 earlier, LB277 has very strong protections, particularly for our

 Native and Indigenous communities that do need to be supported and do

 need to be put into law. I think AM2081 helps assuage some of my other

 concerns regarding the underlying bill. Thank you, Mr. President.