Our Opinion: Do expanded subpoena powers breach separation?

Our Opinion: Do expanded subpoena powers breach separation?

February 4th, 2011 in News

Does a proposed expansion of legislative subpoena powers breach the traditional separation of powers?

The three branches of government - executive, legislative and judicial - are delineated in Missouri's Constitution so "no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others ... "

We fear the Legislature's proposal to give itself the power to subpoena papers and documents may cross that line when the targets of such a subpoena are in the executive or judicial branches.

The Legislature's Joint Committee on Legislative Research already has the power to subpoena the documents, but a bill passed by the Senate on Monday would give the authority to all standing committees of both the House and Senate, as long as the Senate president pro tem or the House speaker signed off on the subpoena.

Senate President Pro Tem Rob Mayer, R-Dexter, sponsored the bill, and told colleagues the measure gives the committees "the tools required, I believe, to make more meaningful and substantive investigations into state government - which would help you to identify inefficiencies and obtain information that, I believe, otherwise would go undetected."

And he doesn't think the power would be used often.

In fact, the last time the Senate subpoenaed records was in the early 1990s, when then-state Sen. Jay Nixon demanded copies of State Surplus Properties records because of an ongoing scandal in the agency.

But, Mayer reminded lawmakers, members of the House budget committees just eight years ago wanted to force Gov. Bob Holden's administration to be more specific about which programs it wanted as top priorities during another tight-budget time - even while some acknowledged that former Gov. John Ashcroft had refused similar demands more than a decade earlier.

If lawmakers are concerned about criminal issues, they have the attorney general and local prosecutors to help with their quests.

If they want official government records, the Open Meetings/Open Records law already gives them the same access as the general public.

But, should the Legislature be able to demand that the governor or others in the executive branch - or the Supreme Court or other judges - turn over documents that are not part of the official public record?

We think Mayer's proposal may go too far toward allowing the Legislature to invade others' turf, even under the guise of open government.

Lawmakers should think long and hard about plowing this ground without constitutional authority to do so.