At times this year, the Legislature’s Government, Military and Veterans Affairs Committee has seemed more second-year constitutional law class than quiet lawmaking body.
The committee is responsible for deliberating on new rules for the state’s elected officers and political subdivisions.
The nature of the bills referred to the committee, many that stoke the forge of an increasingly divided national political landscape, has driven a lot of the constitutional debate that has taken place.
But a big catalyst for the committee’s transformation into must-watch lawmaking for history and political nerds has been driven by the lawyers who freely recite “The Federalist Papers” or conjure Supreme Court precedent from thin air during lengthy debate.
Lincoln Sen. Mike Hilgers has been one of the biggest reasons the committee has become a crash course in constitutional history and Supreme Court case law, according to Gavin Geis, executive director of Common Cause Nebraska.
“When you go to that committee, you have to be prepped,” said Geis. “You know (Hilgers) is going to want to know precedent. You know he’s already going to know the precedent, so you can’t just throw things out there because they aren’t going to fly over his head.”
Geis, as well as John Cartier, director of voting rights for Civic Nebraska, have frequently tussled with Hilgers in what Sen. Tom Brewer of Gordon calls “mental judo,” wrangling in the kind of legal language that sounds foreign to untrained ears.
“Don’t worry if you don’t understand it,” Brewer once comforted the packed hearing room after a lengthy debate.
The lawyering has become a signature part of the Government Committee’s hearings.
During a January debate over a call for a constitutional convention by Sen. Bob Krist of Omaha to limit the influence of money in the country’s elections, Hilgers and Cartier sparred over the meaning of a pair of essays penned by James Madison in “The Federalist Papers.”
A few weeks later during debate over a Sen. John Murante proposal (LB1066), Hilgers and Cartier were at it again, this time over Supreme Court casework and what it said about Nebraska’s ability to require voters to show identification before casting a ballot.
That 2008 decision in Crawford v. Marion County Election Board held an Indiana law requiring voter ID did not violate the U.S. Constitution.
Answering a question from Hilgers, Cartier said Nebraska’s state constitution contained “one of the most strongly worded provisions” regarding elections, and said that line would play an important role in any challenges to Murante’s bill if it became law.
“Would you agree with me — maybe you wouldn’t — but would you agree with me that LB1066 as drafted would be constitutional under the U.S. Constitution?” Hilgers asked.
Cartier conceded Hilgers' point, but reminded the senator “that under constitutional law for some of our important protected rights, the states are very free to prescribe additional protections.”
“I would not disagree with that,” Hilgers answered before jumping back in to grill Cartier on his thoughts about human nature and the government’s role in enacting safeguards for several behaviors, including buying alcohol, boarding an airplane and voting.
On another Murante bill (LB1115) before the committee last week that would subtract the estimated number of noncitizens from the Census count used to redraw legislative boundaries in 2021, Geis and Hilgers discussed a 2016 Supreme Court case that said states could use the total population and not just the voting-eligible population to draw legislative districts.
Hilgers nimbly dissected two of Geis’ arguments for the committee, explaining to his fellow senators that Common Cause Nebraska wasn’t arguing that LB1115 was unconstitutional, but was instead a bad policy proposal.
Geis said in a phone interview Friday that Hilgers has improved the discourse of the committee and improved the legislative record.
“In past years, you could go up and testify and get zero questions,” Geis said. “You might say something provocative, but the senators would not say anything and you’d leave.
“It’s a healthy thing that (Hilgers) doesn’t just accept things at face value,” he added.
Cartier said Hilgers has forced him to research his testimony more thoroughly and be prepared to defend an argument from multiple sides.
“He’s definitely a worthy opponent,” Cartier said. “I appreciate the sparring back and forth.”
Hilgers said he’s often on the other end of the legal tête-à-tête, standing in a courtroom receiving questions from a judge in patent or commercial disputes he handles for his Lincoln law firm.
“The people who testify in front of the committee tend to be very smart, they tend to be very prepared,” Hilgers said last week. "A lot of the issues in front of the committee are legal in nature, so I get that back-and-forth, which I enjoy.”
That requires the former federal appellate clerk to gather casework and synthesize an argument while also researching the counter arguments that could be made using the facts underlying the issue the bill is trying to address.
The legal sparring with Cartier and Geis is never adversarial, even over contentious issues that can widen the divide between Nebraskans on both sides of the political spectrum.
“I give them a lot of credit because they are able to come in and focus and have a dialogue with me,” Hilgers added.
As Hilgers often finishes his questioning: “I appreciate the back and forth.”