How the pandemic has changed NJ governance, limiting public access and input

‘The process is broken,’ say two influential advocates who usually are on opposite sides of policy debates
Credit: (AP Photo/Seth Wenig)
File photo: New Jersey State House

Important bills fast-tracked with key amendments inserted at the last minute. Hearings that start late but stick to tight time limits for public testimony. Consequential policies issued via executive order, first announced on social media, and not made available to the public until hours later.

Governing practices like these have become commonplace in New Jersey, fostering concerns about the effectiveness of new laws and other important public policies enacted amid the ongoing coronavirus pandemic.

Airing those concerns recently were two influential state policy advocates who rarely are on the same side of any debate in New Jersey.

Their respective groups have tussled publicly over the years on issues ranging from the millionaires tax to the minimum wage to the need for corporate-tax incentives. But Brandon McKoy, leader of the left-leaning think tank New Jersey Policy Perspective, and Michele Siekerka, president and chief executive of the New Jersey Business & Industry Association, wrote in a guest column published last month by NJ Advance Media that they’re united in their concern about the state’s current policy-making process.

“What we do agree on is the process is broken,” the two advocates wrote.

A new state budget proposal is due to be released by Gov. Phil Murphy in a few weeks, which will provide the next big test for the governor and lawmakers. In their column, McKoy and Siekerka challenged them to do a better job in 2021.

“We are asking our New Jersey lawmakers and Gov. Phil Murphy to step away from the practice of expediting policies with little or no time for appropriate review or commentary,” they wrote.

Lawmakers may be listening

In response, legislative leaders have signaled they will work more slowly — when possible. Murphy’s office declined comment.

To be sure, the ongoing pandemic has rewritten the script in many ways for state government since the first COVID-19 cases were detected in New Jersey nearly a year ago.

Murphy, a first-term Democrat, has for months held regular media briefings, keeping the public updated, whether in person or online. The governor also takes questions from reporters during his briefings, and Murphy’s administration also discloses key public-health details as a matter of routine, including the rate and locations of new COVID-19 infections.

But the governor has been criticized, including for withholding from public view key records related to the state’s response to the pandemic, which has killed more than 20,000 New Jersey residents in less than a year.

Another sore spot has been Murphy’s heavy use of executive orders instead of working closely with lawmakers to make big policy changes in response to the pandemic. Many of those orders have directly impacted businesses and the broader state economy.

Proliferation of executive orders

Unlike bills introduced by lawmakers, the executive orders come directly from the governor’s office, and they generally are not made public before Murphy announces them, typically at his briefings or on social media. That means the language of the orders — which function much like a state law while in effect — is not immediately available, giving businesses even less time than usual to adapt to the administration’s new policies.

“The response to executive orders is challenging at best,” Siekerka said in an interview.

“Oftentimes we’re playing catchup (and) looking for interpretations,” she said.

For their part during the pandemic, lawmakers have shifted on the fly to holding all-remote hearings and also at times have held in-person voting sessions that are streamed online so locked-out members of the public can keep tabs.

Credit: NJPP; NJBIA
Brandon McKoy of New Jersey Policy Perspective and and Michele Siekerka of the New Jersey Business & Industry Association

For committee hearings — where the details of bills are often hashed out — lawmakers also have used teleconferencing software to ensure public testimony can be taken, even when everyone is operating remotely.

Nevertheless, the pandemic has seemed to put a new strain on many legislative practices that had already become a concern for policy advocates.

McKoy’s organization and others raised loud concerns late last year as significant amendments were made at the very last minute to a $14 billion corporate-tax incentive bill. That left no time for experts from the New Jersey Business & Industry Association, New Jersey Policy Perspective or other groups to give feedback — whether they were in favor of the changes or not.

Trying to testify

In addition, the committee hearings were held in both the Senate and Assembly simultaneously, adding to the challenge for those seeking to testify.

Just a few months before that episode, hearings to collect public input on a more than $32 billion spending bill were scrapped altogether by lawmakers in favor of input collected via email and letters. In response to that decision, McKoy’s organization and other policy advocates organized their own online public meeting to air concerns about the proposed bill.

Meanwhile, formal “budget resolutions” detailing lawmakers’ last-minute add-ons for the 2021 fiscal year spending bill still have not been released by legislative leaders, now four months after final votes on the bill — and several tax hikes needed to support it —were cast in both houses.

While lawmakers have maintained they were being transparent as key pieces of controversial legislation moved through the legislative process last year, McKoy countered in an interview that “transparency is determined by public engagement,” which was often lacking.

“They have the responsibility of improving trust in government — especially right now,” McKoy said.

Messy practices

In their column, McKoy and Siekerka suggested the results of the state’s recent governance practices largely speak for themselves.

Cited as one example was the frequent need for “cleanup” bills to fix legislative mistakes or other issues that end up making it into new laws enacted by the governor. The messy stalemate involving marijuana legalization is another example they pointed to.

“Fast-tracking bills before the public, press, advocates, and even lawmakers have time to read and understand the proposals generates unintended and costly consequences,” they wrote. “Even when operating with the best of intentions, elected officials are still capable of making mistakes that non-governmental experts can help catch and address.”

McKoy and Siekerka have offered some basic recommendations for governing in 2021. They include making public the language of legislation and executive orders before any final action is taken. Doing so, they wrote, would “ensure everyone has an honest chance to understand the important details.”

In his State of the State address last month, Murphy, who faces reelection later this year, highlighted the transparency issue without referring directly to the piece published days before by McKoy and Siekerka.

Murphy said “transparency and honesty must be a standard we set across the whole of government.” He also made a new pitch for a package of ethics reforms he first proposed a year ago and suggested New Jersey could set a national example by making improvements in this area.

Ready for improvements?

One of Murphy’s proposals would prevent lawmakers from voting on bills and resolutions unless their final form had been made publicly available on the Office of Legislative Services’ website for 72 hours. But, in its current form, the measure would not apply to his own executive orders.

For his part, Senate President Steve Sweeney, discussed at length the transparency concerns raised by McKoy and Siekerka during a recent meeting with NJ Spotlight News editors and reporters.

“I understand the criticism, and I respect the criticism, and when we can go slower, we will go slower,” he said.

But Sweeney (D-Gloucester) defended the actions of lawmakers, including during the rushed passage of the voluminous corporate tax-incentive bill. After a long negotiation with Murphy helped resolve key policy disagreements, there was a sense of urgency among lawmakers to move quickly to update incentive programs that had lapsed the year before, he said.

“You try not to rush things through, but sometimes there’s just a sense of urgency,” Sweeney said.

“It’s fair to criticize, but also, sometimes there’s just a need to get something done, and that’s why we move quickly,” he went on to say.

Assembly Speaker Craig Coughlin (D-Middlesex) also appreciates the opinions shared by McKoy and Siekerka in their column, according to spokesman Kevin McArdle.

But McArdle noted that key elements of some of the complex measures that moved through the Legislature quickly last year had been shaped by previous public hearings and stakeholder meetings.

“At some point, issues become time-sensitive and need to get done in order to avoid becoming mired down in political squabbling,” McArdle said.

Looking ahead, McArdle said the Assembly is “making a concerted effort to slow down this year to avoid ‘cleanup bills’ where possible.”

And with Murphy scheduled to put forward his budget proposal for the 2022 fiscal year on Feb. 23, McArdle promised public hearings would again be part of the approval process.

“The upcoming state budget process will be conducted like past years with months of public hearings involving input from residents and stakeholder groups,” he said.