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TWMP Column: How the Senate failed

  

Like any breakdown of a large magnitude, there is a long story of how it happened. I spent the better part of three-quarters of a day in the state Senate talking to folks, and I think maybe I can help shed a little insight on how it got to failure. 

It started with how extremely flawed the “reformers” have screwed up Missouri’s election laws. Once upon a time (like 2014), candidates would get a check from a supporter and report that check to the MEC and anyone who cared could know. (No one ever cared.)

After one of the recent “transparency reforms,” candidates now take a small amount that is directly tied to them and their entire real campaign is run by third-party outside groups — many you can’t even find out who gave to them until after the election. Both parties do it; your party isn’t virtuous. 

Urban politicians like Kim Gardner and Eric Greitens both used the new dark money world successfully in 2016. 

Then-Rep. Kim Gardner won with an influx of out of state money, defeating a longtime prosecutor. Greitens also won with an influx of out of state dark money and also defeated a longtime prosecutor. 

In a world long ago, Democrats were still trying to cling to a centrist label, and in a world where they were less and less in favor of guns and more and more in favor of abortion, turned to tough on crime laws to appeal to the middle (when there still was a middle). 

This created a massive amount of laws that could be broken, only to be obsessively added to yearly by “conservative,” “government cutting” Republican politicians, resulting in what can only still loosely be considered a free society. African Americans bore the brunt of this mountain laws, stoking already existing resentment. 

Gardner won on a platform of being aggressive in prosecuting cops and not so aggressive in prosecuting citizens accused of crimes. 

Now that sounds crazy to my West Butler County hillbilly mind, but she wins … by a lot. 

Meanwhile, outstate Republicans were more and more in favor of guns and less and less in favor of abortion, and they win … by a lot. 

The fire was, of course, stoked when Gardner charged a Republican governor with a crime after some kind of attempt at sexual blackmail at his house went bad. Then the charging of the McCloskeys — while great politics for her — only fanned the flames in Jefferson City. 

Also, a former sheriff took over when Greitens quit, and coincidentally, not just in Missouri but nationally, the Republican Party began to run on law and order in the face of protests that sometimes turned into riots. 

Now keep in mind that just because this is the first you have heard of concurrent jurisdiction, this concept has been around for a few decades. Back in the day, there was a huge fight over the issue. Then-Attorney General Jay Nixon had a huge debate over the issue with Claire McCaskill, Richard Callahan, and Bob McCullough. 

That’s right: For those keeping score at home, Bob McCullough handed off the torch of fighting concurrent jurisdiction to Kim Gardner.

All of this set the stage for a collision that the Missouri Senate bore the brunt of.

Well, that is the history of politics, now let’s look at some facts that really weren’t in dispute by many in the Senate: 

  • The murder rate in the City of St. Louis is off the charts. 
  • There are issues with how the Circuit Attorney is managing her office. 
  • Her relationship with the St. Louis City Police is pretty much what you would expect from someone who ran a campaign on prosecuting them. 

So right before the primary election, the ol’ Polk County Sheriff called a special session on violent crime, but everyone knew he meant violent crime in the City of St. Louis. 

Now with the current set of facts, how could anyone honestly not think this is an extraordinary situation that justified an extraordinary session? 

The call listed some things no one really had heard of along with the elimination of the residency requirement for St. Louis police officers — which to be fair would have likely passed last session but for the COVID break. 

Even though there was very little communication amongst the Governor’s Office and Republican Leaders beforehand, the Senate came in before the primary and worked out a package that was pretty much what he asked for, even getting the votes of a majority of the Democratic Caucus in a tough vote for them. 

After the Senate passed the bill and the House Judiciary Committee had held a hearing, the governor added the concurrent jurisdiction language to the special session call. 

This was un-Parson-like. Governor Parson’s stock and trade is that he is a straight shooter, sometimes too much so for modern politics. However, this didn’t feel like him. There was an element of cleverness to the timing. Even when the governor’s political adversaries started a criticism of him, they began with him as a good and honest man. This wasn’t dishonest as much as it was that there is a standard he has set for himself and something about the timing of amending the call somewhere in your gut didn’t meet that standard. 

That’s when the Speaker pretty much slammed the brakes on the whole thing over some portion of the juvenile provisions that I’m pretty sure very few people understood — and even fewer really supported. His independence was notable then, and today is making some folks very nervous. 

Now here’s a hot take: The Senate normally feels quite a bit superior to the House. Hope you were sitting down for that. 

Honestly, that reputation is typically well-earned (see brass knuckles legislation), but most observers felt that breaking the bills down and just junking the juvenile portion all together created a better overall package and a better overall process. 

In fact, very few would argue that the legislation the House produced was superior to the SB 1, but to be fair, they had quite a bit more time to work on it. 

The only thing more notable than the compliments on the quality of the House’s legislation was the fact that they never took up, or really even discussed, the concurrent jurisdiction language. It had the feeling of the way then-Chairman Haahr quietly put to bed another Senate PQ’d piece of legislation (SJR 39) from a few years ago. 

The Senate made a couple tweaks to the House bills, but the special session was well on its way to being a win for the Republicans and something that Democrats could say they toned down a bit. 

In fact, the Senate Republicans caucused on Tuesday and concurrent jurisdiction wasn’t even discussed. 

The next morning, the Senate actually started oddly on time, and the bills began moving pretty briskly, very briskly for the Senate, including the very big piece of legislation that removed the residency requirement for St. Louis police officers. 

Then around 11:30 a.m., with just two bills left on the calendar, Sen. Bob Onder made his motion to add the concurrent jurisdiction language on murders in St. Louis. And that led to a series of fiery inquiries between Sens. Karla May, Jamilah Nasheed, and Onder.

In a sign of just how divided the St. Louis region is in the middle of all of this, Sen. Andrew Koenig rose and gave an impassioned speech asking his colleagues to pass the amendment. His district is about as far from May’s district as Joplin is from Carthage. 

Then Sen. Scott Sifton, who was comically attacked for voting for SB 1 weeks earlier, gave the Senate its best way out of the quagmire when he offered a point of order that would certainly be litigated over: whether adding this amendment to the bill would create a Hammerschmidt violation. 

The President of the Senate consulted with some legislative staff for quite a while — and notably even some of the Governor’s staff — and then ruled the point of order not well taken. 

At that point, you could clearly see where it was heading. Early on, May on “This Week in Missouri Politics” plainly stated that she would never allow concurrent jurisdiction to be imposed exclusively on St. Louis. And anyone who knows Onder has plainly telegraphed he was going to offer a version of the amendment he floated a few weeks ago on one of the bills. 

So with compromise unlikely, it was heading to being laid over or a PQ

Then Nasheed for several hours offered amendments trying to include other cities in the concurrent jurisdiction legislation. When she included Branson, which if you look at the numbers actually does have a high crime rate (who knew?), Sen. David Sater made the comment that he would have been fine if Sen. Dave Schatz had ruled the other way on the point of order. 

Periodically over the next few hours, Onder would take inquiries that were becoming more and more heated, and even those opposing him on his amendment complimented his discipline to stay on message. To his credit, he seemed willing to oblige every inquiry and never lost his cool or made any attempt to end them regardless of the rhetoric that was flying. 

Around a quarter to 6 in the evening, Senator Doug Libla laid that bill over in order to go to the next and final bill dealing with guns. It took a couple hours to complete that bill, and then Sen. Caleb Rowden, in what had to be done tongue in cheek, said the Senate would stand at ease until 8:10 that evening. 

It’s my belief that there weren’t the signatures for a PQ at 8:10 pm. Then the decision was made to have a caucus. Now having caucuses are part of what has changed about the Senate. If you’re a senator, why would you have a caucus at all?

In former Senates, they would have one caucus at the start of session to elect leadership, then would have been quite offended by having caucuses and expecting them to all fall in line behind leadership on the floor. Well, today, they have them pretty well all the time.

It’s also my belief that Schatz didn’t think there was as much support for a PQ as there was. So let’s look at the math on that PQ motion. 

Now, when you start doing some math, the Republicans won 24 seats in 2018. Since a constitutional majority of 18 is needed to do anything, and no Democrat would vote for a PQ, let’s start with the Republicans. 

The Senate rules state that you need five signatures to present a PQ motion to the body. However, former Sen. Ron Richard decided that he would not bring one forward without 18 signatures, and that policy has wisely been kept after he left. 

Sen. Gary Romine had left the Senate to serve as chairman of the State Tax Commission. However, he was far too much of a senator to vote for a PQ anyway — so down to 23, five to spare. 

Sen. Lincoln Hough, who has probably put together the best freshman session in the post term limit Senate, was never voting a PQ and wasn’t in the chamber — so down to 22, still four to spare. 

Sen. Mike Cunningham wasn’t in the Senate Wednesday on what his office called “a fishing trip” — so down to 21, now only three to spare … getting closer.

Sen. Mike Cierpiot, who ironically was House Floor Leader and made more PQ motions than anyone else in the chamber while in the theoretically lower chamber, has made it clear it would have to be a very extreme situation to vote for a PQ. This wasn’t it — so down to 20, getting down to the wire now with only two to spare. 

Sen. Mike Bernskoetter, who hadn’t widely shared his views on the PQ until now, was a no — so now we’re down to 19 with only one to spare. 

Then you have Sens. Caleb Rowden and Doug Libla. Both have frowned on PQs their entire Senate careers, but both are now put into awful situations. Rowden is the Floor Leader and it’s Libla’s bill, for goodness sake. If you lose those two, then you’re down to 17 and it’s all a moot point. 

Now, on the other side, you have around 10 to 12 senators who have never shown any concern for the Senate being any different than the House, and if leadership tells them to, they would probably PQ the approval of the journal. Now to be fair, that’s completely their right. They are the ones who got elected, and it ain’t easy to be elected to the Missouri Senate. It’s just a different approach than others have historically had of the chamber. 

After that, there is one group of senators that includes the likes of Sen. Bill Eigel or Sen. Denny Hoskins, who are more thoughtful about their approach to the Senate. Hell, three weeks into their Senate careers, they were screamed at by a pervert standing up for the rights of senators — but on this issue, they were probably always gonna sign-on. 

Then there is a group of senators who may not be all that thrilled with a PQ but will sign on if Schatz was really all in for it and the Governor was willing to go out on a limb for it — then that probably got them to sign the petition. That list might include a few like Sen. Dan Hegeman, Sen. David Sater, Sen. Paul Wieland, Sen. Sandy Crawford, and Sen. Justin Brown. 

Sen. Bill White had some concerns that he expressed in caucus, and at some point in his career, could end up being a thoughtful no on some PQs, but at this stage in his career, and on the day he announced his bid for Assistant Senate Floor Leader next session, ultimately decided to sign on. 

So, with all of those factors counted up, you had your core of around 10 senators who are unlikely to oppose most PQs. Then you had a couple who would support this one of specifically Sen. Onder’s PQ to get you to 12. Then you had a combination of the governor and Schatz allies that seem to have brought on Hegeman, Wieland, Sater, and Brown to get to 16. White became a very thoughtful but possibly skeptical 17 — but it still counts as 17. Well, still 17 isn’t 18. 

During the caucus meeting, the governor called in and that certainly helped. Now, let’s be honest. the governor’s staff has had some good weeks, but the only people in the Capitol who will say they had a good week would be truly a kiss ass’s kiss ass. 

This entire thing has been very sloppy on their end, and to their credit, they will admit it. Last week was just the culmination of it. From a public meeting last week that was so badly handled by the governor’s staff that the staff of the commission had to have a meeting the next day to decide what was actually voted on the day before, to this just ham-handed mess, even the governor’s greatest supporters know that the only really effective lobbying done this entire special session by the second floor was done by the governor himself. 

So that begs the question: Why did Sen. Schatz decide this policy was worth it?

Make no mistake, without his personal stature, unquestioned integrity, and respect he wields — and further without his personal request to several senators in that Sater, Wieland, Brown group — and without him personally speaking in caucus not just in favor of the policy, but in favor of using the PQ to get it done, this does not happen. Anyone that tells you otherwise wasn’t there that day or into the next. 

Besides, it’s not the job of the governor or the attorney general to protect the Senate. It’s their job to get things they want done … and done now. There is nothing wrong with them wanting their legislation passed, and passed right now, not four months from now. It’s not their responsibility to protect the Senate anymore. It’s the responsibility of the Senate to protect the Senate. 

So back to why. First of all, there were several overtures from Senate leadership to try and find a way to compromise on any part of the amendment. However, Sens. Nasheed and May had drawn a line in the sand and said there was no room for any compromise on the issue. 

Now, the majority is always maligned for using the PQ, and in modern times, it has been used more. However, let’s be clear, the filibusterer is also more often used in modern times. 

A PQ is not just a failure of Schatz and Onder; it’s also a failure of Sens. John Rizzo and Nasheed and May. The chamber’s leaders should force compromise, and the senators should find ways to work together to put the institution over the issue of the day. 

It’s fair to note that Senate Democrats had compromised many times this year. From something on Clean Missouri to not overplaying their hand when COVID shortened the session to allowing the largest tort reform bill in state history to move forward, they had compromised but chose not to on this. 

I think it’s also important to note that Senate Republicans had offered several compromises seeking the Senate Democrats to sit down on the bill and just vote no. They were all rejected, and it’s a matter of debate whether or not they were even seriously entertained. 

Then Schatz met with Nasheed and May individually. Their take was not only that concurrent jurisdiction was an idea they could never live with, but they really didn’t believe there was that large of a problem with the Circuit Attorney’s Office at all. 

Several people both in St. Louis and Jefferson City have said in that meeting there was a phone call between Schatz and Kim Gardner herself. During that phone call, the Circuit Attorney was essentially argumentative and pretty much unwilling to agree to any sort of compromise of any kind. 

I’d say it was that phone call as much as anything that influenced Schatz that something extraordinary needed to be done. 

So in that Senate caucus there was a vote on whether to PQ the amendment, and after it came up one short, then there was the thought to reach out to Sen. Mike Cunningham — and since most Webster County fish have been done with supper and are in bed by 10 p.m., to see if he was willing to come and cast the deciding vote to terminate the free and fair debate of the Missouri Senate. 

Now, without knowing for sure, my hillbilly intuition might assume that Cunningham in his final weeks of a very accomplished 16-year legislative career is probably fine with a law that negatively impacts Kim Gardner and would probably go along with a PQ to do it but really doesn’t care if either happened or not. 

It would have been interesting to know what was going through the head of Cunningham at that moment. After all, I don’t think there is a lot of love — or even like — between Cunningham and Onder. Further, it was Schatz who barely edged out Cunningham for second place in the first round of voting in the President Pro Tem’s race two years ago. Second place in that first round was likely to win in the next, and did. 

On the other hand, he worked very, very hard and has been rightfully very proud of helping elect Rep. Karla Eslinger to his seat in the Senate. And it was also an endeavor Gov. Parson assisted with and Cunningham isn’t one to not repay a favor. We hill folk are like that. 

Whatever ultimately influenced him, he said on the phone during the caucus that he would come to the Capitol Wednesday night and vote to end the debate. 

Now in caucus, there was discussion of Onder, who is a pilot, coming to either Lebanon or Springfield to get him. Would have made a lot of sense and saved time as it was already late in the evening. However, he ultimately did not and informed me of such on Twitter. Cunningham would end up driving up from Marshfield, which is a bit of a trip when you start after 10 p.m. 

With that, they had their 18 and the wait was on for his arrival. Out of respect to the senators, there was very little arm twisting on the no votes to save Cunningham the drive. However, one call was made to Hough in Springfield to see if he would return; you can probably assume how that call was received. 

Even as Cunningham was nearing the Capitol, Republicans were trying to find some place to compromise. However, some Democratic senators didn’t believe he was actually coming or that they actually had 18 votes if he did arrive. 

When Cunningham arrived, and it was made clear he was in Capitol and they had the votes, Rowden continued to work until the very last moment to try and get any offer of compromise out of May and Nasheed, but there was no ground given. They had decided they would rather be PQ’d than compromise. 

Then the Republicans added a three year sunset to the legislation without a deal in an offer of good faith as a substitute amendment by Onder. Then Libla offered a floor substitute that included Onder’s amendment and the sunset. All the while, the majority was asking for an offer of compromise from the minority, but they had decided that they simply would not negotiate on this issue. 

With that, Onder made his PQ motion, and the Senate broke. 18 Republicans had signed the document while Sens. Mike Cierpiot, Mike Bernskoetter, Caleb Rowden, Lincoln Hough, and Doug Libla’s names were not on it. 

Even though he voted against the PQ in statesmanlike fashion, Rowden was like a crossing guard directing traffic on the floor as there were some groggy 3 a.m. parliamentary moves required to see that the motions were done correctly on a piece of legislation that will certainly be litigated. 

All of the Republicans in the chamber voted for the underlying bill. While the legislation passed, the Senate failed. Not just the majority lost, not just the minority lost, the senate lost. 

So what happens next?

Well first, House leadership has a couple interesting decisions to make. Does the Speaker read the message in? Does the Floor Leader go to the bill? He has apparently indicated to some that he doesn’t plan to, but that would take a great amount of guts at this point if the Speaker is not on board with him. Do they go to the bill and vote it down?

Precedent would dictate that they take it up and pass it, so let’s assume that happens. 

Kim Gardner could attempt to pass on an enormous backlog of cases to the attorney general and try and swamp his staff. Something tells me Attorney General Eric Schmitt is prepared to handle that move. 

You would have to think this would make the governor and rest of the legislature more hesitant to go right into a special session on COVID liability. Some have speculated that those who have stretched this special session out are just fine with that outcome. 

It’s possible that Schatz delivering a huge win for Onder could make their relationship easier as they enter into their final two years of their terms. 

One thing that is clear is that this is a message from Schatz to the business community that he and the Senate do care about the critical issues in St. Louis and are willing to go to extreme measures to help. 

Lastly — and if you’re still reading this, I owe you a Bud Light — if you’re a Democrat, it’s easy to see why you should care about the PQ and eroding of the minority’s rights in the Senate. But I’ll leave you with why you should care if you’re with the most right-wing Republican in the Senate and believe you should run Gardner from office, cut taxes, and provide every fetus with an AR-15 to defend itself against an abortion doctor. 

After the 2018 election, the Missouri Senate was 24-10 in favor of Republicans. It’s true they could pass anything they wanted if they were willing to totally degenerate the Missouri Senate. We will be having a 30 Under 30 event Monday for the people who have been standouts in their field in government politics. So they would have been born since the 1990 elections. The makeup of the Missouri Senate in 1990 was 23-11 … Democrats.