2021’s Covid Crisis May Have Boosted More Accessible Legislature

Heather Ferguson

        By Heather Ferguson, Executive Director, Common Cause New Mexico, NMFOG Board Member

Ever since the 1970s, when Americans woke up to the dangers of government secrecy thanks to Watergate and Vietnam, the value of transparency in public policymaking has become more and more apparent. Bad things are more likely to happen in darkness, not only when it comes to crime but also when it comes to laws made in secrecy or decisions made without public input. That’s why New Mexico enacted the Open Meetings Act in 1978.

As it says in the act itself, the legislature recognized that a representative government is dependent upon an informed electorate armed with the greatest possible information regarding the affairs of government and the official acts of its officers and employees. Requirements for public meetings, advance notice, and access to public records, outlined in the law, all followed from that basic concept.

When the Covid pandemic hit our state last year, legislators were put in a bind.  How to respect the need for a public meeting of the legislature, where citizens could make public comments, witness floor and committee hearings, and have access to the legislators and to the documents that might someday become law?

In fairly short order, the legislature put together a mechanism that combined legislative webcasts with zoom committee meetings where the public could testify on pending bills and submit written comments. The public was barred from the Roundhouse with only a few masked and tested staff and media permitted. Contact between legislators themselves was minimized and the number of floor sessions reduced. Masks were required. Reaction to the new system, with the unheard-of restrictions, was mixed.

After the session, the New Mexico Foundation for Open Government conducted two focus groups, composed of legislators, lobbyists and media representatives to determine if the absence of in-person communication and the use of virtual technology increased or diminished transparency and accountability.

A quick consensus emerged. Never again. Participants hoped that the 2021 session would be the last one conducted completely virtually.  But at the same time, all acknowledged that public participation had increased, since ordinary citizens wishing to testify or contact their legislator did not have to travel hundreds of miles to Santa Fe.

The trend of increased public participation continued this summer as the Citizens Redistricting Committee combined remote testimony with 16 in-person sessions held around the state. More than 2,100 New Mexicans attended the hearings via zoom or in person and the committee considered 700 comments and 80 maps, many drawn by citizens themselves.  It was an unprecedented level of civic engagement.

The hybrid model shows promise for use in both regular legislative sessions and interim legislative committees provided the legislature can make some important modifications. Processes for testifying before committees should be standardized between both chambers and access to amendments and bills-in-the-making provided. Consistent committee schedules should be adhered to and interpretation software improved.  Most important, both legislators and citizens need to be trained on how to use the technology in advance.

In the long run, standardizing the remote process will increase both transparency and accountability, and using it alongside of in-person sessions and interim committee hearings, where legislators and constituents can interact with one another, is a win-win. 

Upgrading the legislative process to expand public access in this way will be a challenge for legislative staff, and it will require commitment and funding from legislators themselves. Now, while we have the funding, is the time to do it.

Over the past decade, the legislature has gradually acted to allow more public access to a process that was by in large closed to those who were not “in the room where it happened.” In 2009 after acrimonious debate, the Senate and the House permitted live streaming of floor sessions and some committees. Conference committees were opened to the public and the press. The next year a sunshine portal was installed to allow public access to budgets, contracts and salaries of public employees.

In the years since, the legislature has allowed for archiving of the live streams of floor and committee sessions, thus expanding accountability for votes, for speeches and conduct of legislators. The public deserves this access—and more. The reason: transparency opens the way to increased civic engagement and information reveals better solutions to public problems made by a broader—and not narrower—group of decision-makers.

Strangely, Covid has backed the legislature into a giant step forward – now why not make it permanent?  An improved and standardized use of video, zoom and web technologies can complement our in-person and uniquely New Mexico- style legislative sessions and expand transparency, accountability and democracy.