LINCOLN — Capital punishment in Nebraska may owe its survival to the filibuster.
Despite mounting their most successful effort at repealing the death penalty in years, state senators who oppose capital punishment were thwarted Tuesday from having a vote on the issue. That's because they couldn't convince at least 33 of the 49 senators to end a filibuster.
Opponents of expanding the Medicaid system, as proposed under the federal health care law, also recently used a filibuster to block a vote on that bill.
The twin outcomes have some suggesting that it now takes a supermajority of senators, rather than just 25, to pass major, contested legislation in the nonpartisan, single-house Nebraska Legislature.
“If we can't get a general file vote, it does look like Washington, D.C., it does look like dysfunction,” said Sen. Brad Ashford of Omaha, who supported both bills blocked by the filibusters.
Sen. Beau McCoy of Omaha, who opposes the Medicaid expansion and the death penalty, said some of the conservative initiatives he supported in past sessions have been blocked by filibusters.
“I think members need to be careful not to be hypocritical,” McCoy said. “The rule book is available to all of us to use.”
Because supporters of the death penalty repeal bill could not cut off debate Tuesday, the bill will not return to the agenda before the session ends June 5, said Speaker of the Legislature Greg Adams of York.
The vote to end the filibuster failed 28-21. The result suggests supporters of the bill may have had 25 votes or more to advance the measure to the second-round of debate.
Even if supporters ultimately passed the bill, they probably would have been forced to find the 30 votes needed to override the governor's expected veto.
Regardless of Tuesday's outcome, this year's debate showed that the Legislature clearly has moved more toward the center on the death penalty. As recently as 2009, only 13 senators voted in favor of abolishing executions.
Nebraska lawmakers voted to repeal the death penalty in 1979, but they could not overcome a veto by then-Gov. Charles Thone.
For at least another year, Nebraska remains one of 32 states with the death penalty. Three men have been executed since capital punishment was reinstated in 1973, with the last execution carried out in 1997.
Iowa has not had capital punishment for 48 years.
Sen. Ernie Chambers of Omaha made Tuesday's cloture motion to end the filibuster, saying it was the first time he has done so in his 39 years in the Legislature. He introduced and prioritized Legislative Bill 543, which would have replaced lethal injection with life in prison without parole.
Chambers also has been a master of the filibuster and other rules to delay or kill legislation he opposes. He said Tuesday that he will deal with those who prevented a vote on the repeal bill.
“When you give it, you have to be willing to take it,” he said.
He also said all those who are disappointed by Tuesday's outcome need to keep in mind the bill will carry over to the 2014 session, where it will not have to go through a committee hearing before it gets another first-round debate.
Sen. Scott Lautenbaugh of Omaha, who led the filibuster against the repeal bill, said Tuesday he's convinced that several senators who voted to end debate would have voted against the underlying legislation.
So why not let it come to a vote?
“I said up front I would do whatever was necessary to not allow a repeal of the death penalty,” he said.
Veteran lawmakers have said past repeal bills have received an up-or-down vote. This was the first one blocked by a filibuster.
Lautenbaugh disagreed with those who suggest that some bills should not be held up by filibusters because they are so significant they deserve a vote.
“The rules for cloture don't apply just to trivial issues and not the major issues,” he said. “That's a very situational outrage.”
Sen. Bill Kintner of Papillion reflected the view of several senators when he said the nature of the one-house Legislature makes the filibuster an important tool to ensure that some legislation clears a higher standard for passage. Nebraska lawmakers can't pass the buck to the second house or rely on conference committees to hammer out differences.
Sen. Galen Hadley of Kearney, a conservative who supports the repeal of capital punishment, said opinions on whether a filibuster is appropriate often change depending upon a senator's support for the bill in question.
“I truly believe we need the filibuster,” he said. “Sometimes you win, sometimes you don't.”
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