When social issues stall Missouri lawmakers, statewide officials make their own rules

Who needs legislators? Especially when they can’t even pass laws on the hottest of hot-button issues? 

Instead, conservative Republicans who hold every statewide office in Missouri increasingly show they can limit what materials libraries can stock, toss aside rules on socially responsible investments and shut off access to gender-affirming care. 

When lawmakers in the Missouri legislature couldn’t make laws that impose their cultural agenda, Republicans in other roles have recently tested the boundaries of their offices to make the changes happen anyway.

Those boundary tests have resulted in lawsuits and upsets in court as state officials made policy from their offices without the added layer of legislative scrutiny. 

But gridlock in the state Capitol has opened the door for them to try. 

A faction of ultraconservative lawmakers, first called the Conservative Caucus, has reorganized under a framework of like-minded state and federal lawmakers now called the Missouri Freedom Caucus.  

The group argues that Republicans act too timidly on things like taxes, school choice and parents’ rights. They often use procedural moves, like the filibuster, to hold up the General Assembly until their priorities are advanced.

Instead, they’ve often stalemated themselves. 

Missouri’s 2020 legislative session, shortened by the coronavirus, set a record for the fewest number of bills passed in the last 30 years. And 2023 came close. 

That splintering in a party that holds widespread control is common, said Charles Zug, a professor of political science at the Truman School of Government and Public Affairs at the University of Missouri-Columbia. 

“The party is so in control that it actually leads to a fracturing within the dominant party,” Zug said. “You get this breakdown in legislating.” 

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That tempts officeholders, he said, to fill the void and burnish their reputations as conservatives who get things done.

“What you’re seeing instead is ambitious officials exploiting the unwillingness of the legislature to do something quickly,” Zug said, “and justifying their actions on the basis of supposed gridlock.” 

AG’s rule on gender-affirming care during debates in the Missouri legislature

Missouri Attorney General Andrew Bailey issued an emergency rule on gender-affirming care in mid-April 2023, about a month before the end of the legislative session. The rule put a number of restrictions in place, essentially halting access to gender-affirming care for minors. 

The General Assembly was making slow progress throughout the session on a bill that would have had much the same effect. Passing the bill was a top priority for Republican leadership. What’s more, Gov. Mike Parson threatened to call lawmakers back to Jefferson City for a special session if they failed to give him something to sign. 

More:Missouri Attorney General's emergency rule appears to halt all 'experimental' trans care

Bailey’s rule was set to stay in place for 30 days of the legislative session, or 180 days, whichever was longer. He cited Missouri’s Merchandising Practices Act — a judge would later call that a “novel” use of the law — designed to fight consumer fraud. He said state law gave him authority to issue the rule. The law underwent changes in the Missouri legislature in 2020 intended to limit the scope of its use. 

The attorney general argued that gender-affirming care is experimental, which put it into the scope of the business law that governs “unfair, deceptive and unconscionable business practices, including administering healthcare services.” 

Weeks later, a judge rejected Bailey’s argument and said Bailey overstepped the bounds of his office. 

Bailey’s action “may impermissibly invade a function reserved to the legislature,” St. Louis County Circuit Court Judge Ellen Ribaudo wrote in her order.

More:Judge's ruling will prevent AG's rule restricting trans healthcare until May 15

Once the General Assembly passed a bill in mid-May, Bailey withdrew his rule. 

“We were standing in the gap unless and until the General Assembly decided to take action on this issue,” Bailey said in a statement. “The General Assembly has now filled that gap with a statute.” 

At the time, House Minority Leader Crystal Quade, a Springfield Democrat, said Bailey’s job was to defend Missouri law, not make a workaround when legislators didn’t pass bills.  

Paul Nolette, a political science professor at Marquette University with an expertise in attorneys general, said the offices have become more polarized in recent decades and often use their powers to reflect the goals of national political parties. 

“AGs have gotten much more involved in national politics, national policymaking,” Nolette said. “Even though they’re state-specific laws, it’s very much national politics because culture-war issues have been a big issue in national politics.” 

Secretary of State Jay Ashcroft’s rule on environmental, socially minded investments

Missouri gives a power to its secretary of state that many other states do not. Although the office is intended to oversee election administration, Secretary of State Jay Ashcroft also has authority over securities and investments, as well as the state’s libraries. 

Ashcroft, who is running for governor, issued a rule last summer requiring brokers to disclose any investment to their clients that “incorporates a social … or other nonfinancial objective” for a reason that is not solely focused on the maximum financial return. 

The rule was the first of its kind in the country. 

Lawmakers in the Missouri legislature filed a litany of bills regulating the use of ESG — investing that considers environmental, social or governance characteristics. ESG critics In Missouri describe it as “woke investing.” But legislation regulating it failed to gain any legitimate traction in the 2023 legislative session. 

Ashcroft told Reuters in an interview after he introduced his rule that “an extremely dysfunctional session” in the Missouri legislature prevented legislation from moving forward. 

“Secretary of State Ashcroft is acting like he is the legislative branch of the government,” Michael Berg, political director of the Missouri chapter of the Sierra Club, told the Center for Media and Democracy. “He enacted rules that were rejected by the legislature.”

Howard Fischer, a former prosecutor for the federal Securities and Exchange Commission and now a partner at the New York law firm Moses Singer, told The Beacon last year that the movement against ESG practices first took hold in the South. Some states there have economic stakes in the health of the oil and gas industry. 

“Part of this is cultural war. The other part is fossil fuel-related,” Fischer said at the time. “It’s not really about investment performance. It’s about staking out a position in the culture wars. And to the extent it is about finances, it’s about protecting local industries.”

Pro-business groups, like the Missouri Chamber of Commerce, said that they tried to clue Ashcroft in on the restrictions his rules would put in place for brokers. 

Now Ashcroft is also facing a first-of-its-kind lawsuit from the Securities Industry and Financial Markets Association. The group is suing Ashcroft, saying that the Missouri rules “fill no void or blind spot that would protect Missouri investors.” The disclosures Ashcroft is requiring, they argue, already exist under federal securities law. 

Ashcroft has sought $1.2 million in taxpayer dollars to defend his rule against SIFMA’s lawsuit. 

Ashcroft’s rule on obscene materials in libraries

Ashcroft also issued a rule in November 2022 banning libraries from buying materials that are “child pornography,” “pornographic for minors” or “obscene.” 

The rule came on the heels of a new law passed by the Missouri legislature that made it a misdemeanor to provide “explicit sexual material” to a minor. As a result, at least 300 books were banned or temporarily removed from libraries across the state, including books about the Holocaust and a version of The Children’s Bible. 

Those who violated the law were subject to fines of up to $2,000. 

More:Librarians sue over Missouri law that bans 'explicit sexual material,' spurred book removals

The focus on libraries came amid a push to pass anti-LGBTQ policies. Lawmakers looked to outlaw things like “drag story time” in local libraries under the premise of keeping obscene or sexual materials away from minors. Lawmakers have attempted for years to pass bills limiting drag shows in public settings. 

Under Aschroft’s rule, if libraries did not write and adopt policies detailing how they make book selections or had any “age-inappropriate materials” or events, the libraries risk losing their portion of state funds under the rule. It would also require minors up to 17 years old to get parental permission before getting a library card. 

Some of the wording of the rule was adjusted after a mostly negative response during the public comment period. And librarians across the state told Ashcroft that most of them already detailed how they pick books. 

“They don’t really have to take that feedback into account,” Zug said. 

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He said that the unilateral decision-making brings up questions about institutional loyalty versus partisan loyalty. 

If lawmakers care more about institutional loyalty, they would presumably be angry about officials stepping outside of the typical bounds of their office. But when partisan loyalty is stronger, it can enable unilateral action. 

“There’s an incentive for officials to do things unilaterally,” Zug said, “if the people in the legislature aren’t really going to mind that much.” 

This story was first published at www.kcbeacon.org.