We’re in the home stretch of the 2023 Legislative Session, with roughly two calendar weeks of session time remaining. Before the body took up the final round of debate on controversial social issues in LB 574, they gave final approval to the state budget and advanced the Revenue Committee’s priority tax package (LB 727).
LB 727 contains about 20 measures that are estimated to result in a $50 million reduction in state revenue across the biennium. Major components include:
- New “Good Life” special tax districts, in which sales tax revenue could be used for development projects, rather than being sent to the state General Fund. The Nebraska Crossing outlet mall at Gretna is expected to be one of the main beneficiaries of this new financing tool.
- An expansion of 529 NEST College Savings accounts so that they can now be used to pay for private K-12 school tuition.
- A funding mechanism for a proposed new convention center in Lincoln.
- A new sales tax on vaping devices.
The body met its day 80 deadline for passing the Biennial Budget Package to the Governor’s desk. All told, it amounts to $5.3 billion in spending from the General Fund. Most of that is to fund government agency operations and services, along with a $1.2 billion drain on the state’s cash reserve to fund special projects including the proposed canal and a new state prison. Fiscal analysts have cautioned this weakening of the cash reserve or “rainy day fund” and the legislature’s commitment to pricey tax cuts that could jeopardize the state’s ability to fund essential services in less prosperous years. A couple of notable positives for CSN orgs: An increase of 5% for social service provider reimbursement over the two year period, and an investment of about $40 million for various affordable housing programs across the state.
Abortion Ban & Gender Affirming Care Ban for Minors Combined, Passed
On Tuesday, the body voted to adopt an amendment to LB 574 from Sen. Hansen that added abortion restrictions and slightly changed the parameters around the gender-affirming care ban. In contrast with the original version, this amended ban only bans outright gender-affirming surgeries for trans youth. Rather than banning the use of hormone therapy and puberty blockers- both forms of treatment that are more commonly prescribed for minors experiencing gender dysphoria- it gives authority to the governor-appointed Chief Medical Officer to set regulations and restrictions around the use of these treatments. It contains a grandfather clause which purportedly allows for youth already undergoing treatment to continue doing so; but the very narrow and specific language defining who qualifies for this exception has led opponents to believe that it won’t provide much leeway for trans youth and families hoping to make use of it.
While backers of the abortion ban have called it a 12-week ban, the bill language measures the pregnancy based on gestational age, rather than fertilization, making it effectively a 10-week ban. One major point of criticism was the lack of any exception granted for fetal anomalies incompatible with life. In most cases, such anomalies cannot be detected until at least 18-20 weeks, so under the bill, pregnant Nebraskans that learn of pregnancy complications that threaten the life of them or their fetus after the 10 week mark will not be legally permitted to receive abortion care.
As the votes came in, all eyes were on Sen. Riepe, who was the deciding vote on the defeat of LB 626, the proposed 6 week ban, earlier in the session. Riepe changed his tune and voted in support of the ban this time, which he has said he found to be a more reasonable restriction after consulting with healthcare professionals. Before casting his deciding vote, Riepe had a conversation with amendment sponsor, Sen. Hansen, in which Hansen said he would work with Riepe in the future to re-examine the criminal penalties tied to the bill for doctors that provide abortion care; though, as many opponents noted, that promise likely rings hollow, as with Riepe’s vote, the measure enjoys a solid bloc of support that doesn’t have any political incentive to change the bill once it’s signed into law.
The bill was then scheduled for its final vote on Friday. A last-minute amendment from Sen. Walz, seemingly filed as a “Hail Mary” attempt to peel off one vote needed to stop its passage, was not taken up. Walz, who is moderate on abortion rights, had proposed a new version of the 12-week ban Sen. Riepe had proposed earlier in the session, which included broader exceptions for abortion care; combined with what could have been the “compromise amendment” on gender-affirming care from Sen. John Cavanaugh, who had been a part of Sen. Kauth’s “listening sessions” with opponents. Cavanaugh’s proposal would have prohibited genital surgeries but not any other form of care if certain conditions were met, according to best medical practices.
Debate was more heated than we could have imagined, with inconsistent administering of the debate clock by Speaker Arch and Presiding Officer Lt. Gov Kelly over procedural motions drawing sharp criticism and raised voices from opponents. These leaders have been applying the rules inconsistently, opponents said, and it’s further unraveling the norms guiding operations of the body in a way that could ripple for years to come.
For those that are disheartened by this news, there is hope. I have heard that efforts are already underway to begin work on a referendum petition, which would allow Nebraska voters the opportunity to vote to repeal the law. I am also hearing that in all likelihood there will be a legal challenge taken to court on the grounds that LB 574 violates our state constitution’s single subject rule. It may also be found faulty in that it discriminates among cisgender and transgender youth by applying restrictions around healthcare for one group and not the other.
This Fly has been a Capitol observer for a number of years now, and I’ve never seen anything matching the powerful grassroots organizing and citizen advocacy around this bill. On each round of voting and on multiple days leading up to those votes, Nebraskans showed up in the hundreds to protest, speak with Senators, and make their voices heard. At many points during this past week, the chants from protesters outside the chamber in the rotunda were plainly audible on the legislative floor, causing senators to have to speak loudly into their microphones in order to be heard, often for hours on end. Advocates for restrictions on abortion and gender care also made themselves known, with some holding prayer circles in the rotunda and outside offices of senators. Some showed up openly carrying firearms. Physicians in white coats, families and parents of trans youth, youth themselves, and concerned citizens showed up with an incredible amount of energy that was truly remarkable for all of us working in the building to see. There’s a broader shift happening in which droves of Nebraskans are tuning in and showing up and engaging with their legislature in a really unprecedented way, and that gives us hope.
A few other notes for further reading:
- A lot of rumors were swirling about confrontations, assaults and arrests that occurred at the Capitol leading up to the final vote on LB 574. Here’s the State Patrol’s official report on what happened.
- Senators received a letter from approximately 1,300 doctors and other medical professionals in the state warning them of the dangers of passing LB 574 and urging them not to support it.
- A reporter with New York Magazine has been working on an in-depth story about the fight for trans and abortion rights in the Unicameral this year, following the proceedings in person and having conversations with senators at the heart of the debate. The story has been published here, and provides a detailed overview of how we got here.
Mid-week, the Government Committee opted to vote out Sen. Brewer’s version of a voter ID implementation proposal, rejecting the proposal from original bill sponsor Sen. Slama. Civic health advocacy orgs and groups focused on maintaining equitable access to a democratic voting process have called this Brewer version the “least bad” of the options discussed by the committee.
Sen. Slama was unhappy with the committee’s amendment, saying it was not restrictive enough. In protest, she quickly filed a motion to withdraw her bill LB 535 that was the original voter ID vehicle. It was unfair, she said, that a high-ranking elections official representing the Secretary of State was involved in the committee’s executive session, at which he was present to answer questions for members. Typically, executive sessions are closed to lobbyists or any other outside influence. Committee Chairman Brewer conceded this point, then called the committee back together to hold a new executive session and to vote out the amendment again- this time, attaching it to a different vehicle, LB 514.
The proposed amendment would allow the use of a variety of types of identification to meet the requirements to vote, including student, government, military, or tribal IDs. Expired photo IDs would be accepted. We know that restrictive voter ID measures disproportionately harm voting access for rural people living where DMVs have limited hours, students not from the state, the elderly and residents of care facilities, people with disabilities, people of color, and anyone else who might have transportation or financial challenges.
This tees up a contentious debate that pits two leading conservatives, Sens. Brewer and Slama, against one another. Slama has promised to filibuster the bill, and rumor is that she wants to block it and then get a special session called to take another stab at crafting voter ID implementation. Some are saying she has her eyes on a run for Secretary of State. The current Secretary, Robert Evnen, has backed the Brewer proposal, and has repeatedly affirmed that Nebraska’s elections have been safe, secure, and free of fraud.
At the time of this writing, 8 or 9 legislative days remain depending on whether we adjourn on June 2 or June 9 (with a week of recess days in between for potential veto overrides). Voter ID debate is slated for Monday. Also on Monday, the body will debate LB 50, the Judiciary committee priority package of criminal justice system reforms.
Until Next Week,
Your Capitol Fly on the Wall