6 - Barriers to Passage

This section discusses the major obstacles to passage of .08 per se as encountered by supporters of the measure in the six states that were used as sites for this project, as reported to project staff.

Governor or Powerful Legislator Opposes the Bill

In all six states studied, there was a promise from the Governor that he would not veto the .08 per se bill if it reached his desk. In states where such an agreement has not been reached with the Governor, this would be considered by the .08 movement to be a major obstacle, as many legislators would not want to fight for passage of a law only to have it vetoed by the state's top executive.

In most states, there was initially a very strong and vocal opposition from either the President of the Senate or the Speaker of the House. Opposition from legislative chamber leaders was seen as a significant obstacle, since it is they who control the legislative agenda of their respective chambers. Typically, the Senate President and the House Speaker also decide which committees will consider the proposed legislation. In most cases, they are also the leaders of the chamber's majority party, and can wield considerable influence on the votes of their political caucuses.

Opposition from the chairperson of the committee that considers DWI bills was also considered to be a great obstacle. In more than one instance, advocates had reason to believe that the state legislature would approve the legislation, should the bill be allowed to pass out of committee. However, in many cases the chairperson's influence over proceedings in the committee was sufficient to keep the bill from the reaching the floor for a general vote.

Opposition from the chamber or committee leaders resulted in numerous unsuccessful attempts year after year to pass .08 per se legislation. Enactment of the measure typically followed an election year that brought some changes in the balance of power within the legislature. In one state, the opposing House Speaker left the legislature to pursue higher office. In another state, a member of the executive branch had to intervene before the Senate President finally permitted the measure to come to a vote on the general floor.

Legislative Tactics

The easiest way for legislators to kill a bill was simply to "put it at the bottom of the pile." Especially during a short legislative session, bills died simply because there was "not enough time" to consider them. This was a frequently employed tactic that saved face for the legislators since they never actually had to vote against the bill. Even when legislators were not strongly opposed to a bill, short sessions forced them to prioritize and turn their attention only to those issues they believed to be the most important. Accordingly, lobbyists for .08 per se believed that one of their greatest challenges was to capture the legislators' attention early on in the session, and persuade them to give priority to DWI issues.

Some legislators attempted to halt the bill's passage by filing amendments that would alter the impact of the law. One legislator filed an amendment to enact the .08 BAC limit for administrative purposes but eliminate per se. In another state, one senator put forward an amendment that would have allowed local governments to exempt their communities from enforcing the new .08 BAC limit. This amendment was approved by the legislature, forcing supporters to draft and vote on a second bill effectively removing this amendment.

In still another state, one legislator proposed to lower the state's illegal BAC limit to zero. When this amendment failed, he filed a second amendment to lower the limit to .05. Our contacts were unanimously in agreement that these were not bona fide proposals on behalf of the legislator, but rather, a last-minute attempt from the opposition to prevent the passage of .08 per se by "scaring" legislators into voting against the measure, because the new limit would be considered by most to be too low.

Finally, legislators delayed consideration of a .08 BAC law by requesting fiscal notes, or other assessments of the financial impact of the legislation. Depending on the timing of these requests, they sometimes served to defeat the measure, if the legislature adjourned before legislative staff could compile the requested information.

Pass It In One Chamber, Kill It In the Other

In more than one state, it was suspected that members of one legislative chamber approved the .08 per se bill because they were extremely confident that the bill would not become law due to the fierce opposition in the other chamber. For example, in one of the states where the House Speaker was a vocal opponent of .08 per se, and had repeatedly prevented the bill's passage in past legislative sessions, the Senate approved the measure, allegedly because they knew the bill would never be approved by the House. It was reported to project staff that, in this manner, senators managed to protect themselves from any media and public outcries, as it was the "other chamber" that defeated the measure.

Obstacles Not Related to the Opposition

It was reported to project staff that the .08 per se movement sometimes faced obstacles such as lack of sufficient preparation, and conflicts in interests between legislators and advocates. For example, a couple of legislators who had worked with one grassroots organization to enact .08 per se legislation, found themselves at odds with the organization because they felt that the group was being inflexible and was threatening them with bad publicity if the legislators did not meet all of their demands. Though only a very small minority of our contacts voiced such complaints, it is important to note the potential for conflict among .08 per se advocates themselves when there is a difference in priorities or opinions.