Let's Meet in the Middle: Constitutional Challenges and Policy Problems with Iowa's Open Meetings Law, with Suggestions for Improvement

• Author: Luke J. Cole
• Position: J.D. Candidate, The University of Iowa College of Law, 2019; B.S., University of Wyoming, 2015
• Pages: 2055-2091

2055

Let’s Meet in the Middle:

Constitutional Challenges and Policy

Problems with Iowa’s Open Meetings Law,

with Suggestions for Improvement

Luke J. Cole*

ABSTRACT: The right to free expression is not diminished after a person

takes the oath of office and becomes an elected official. Yet a close examination

of Iowa’s open meetings law (Chapter 21 of the Iowa Code) reveals that the

law suffers serious First Amendment deficiencies. Because the law limits the

manner in which various officials may communicate with their colleagues, it

likely constitutes a content-based restriction on speech. Even under a more

lenient content-neutral analysis, the open meetings law fails to provide ample

alternative channels of communication for officials to carry on general

discussions of policy with their colleagues. Policy problems compound the law’s

constitutional flaws, including its potential to prevent agencies from working

effectively, its tendency to discourage, rather than encourage, participation in

local government, and its uneven application across agencies within state

government. Proposed legislative improvements include defining “deliberation”

in the law, opening more channels of communication between elected officials,

and eliminating fines for unintentional violations of the law. Judicial

improvements include adopting a more flexible approach for assessing

violations of the law.

I.INTRODUCTION ........................................................................... 2056

II. THE HISTORY OF CHAPTER 21, AN OVERVIEW OF ITS

PROVISIONS, AND A BRIEF REVIEW OF FREE SPEECH LAW ........... 2058

A.OPEN MEETINGS LAWS COME TO IOWA................................... 2059

*

J.D. Candidate, The University of Iowa College of Law, 2019; B.S., University of

Wyoming, 2015. Thanks to Professor Chris Liebig for inspiring me to write on this topic, and for

his years of service to the people of Johnson County. Thanks to Jim and Janine Cole, Bernadette

Nelson, Ryan Shellady, and Dr. Daisy Wang. Additional, immense gratitude is owed to Logan

Eliasen and Paden Hanson for their help as Note and Comment Editors, to Ellen Reynolds and

Kenzie Kuhn for their technical work, and to the entire staff of Volume 104 for bringing this

Note to life. Powder River, Let ‘er Buck.

2056 IOWA LAW REVIEW [Vol. 104:2055

B.THE STRUCTURE AND SCOPE OF IOWA CODE CHAPTER 21 ....... 2060

C.ELECTED OFFICIALS AND FREEDOM OF SPEECH ........................ 2064

1.How Does Freedom of Speech Apply to Elected

Officials? ....................................................................... 2064

2.Content-Based and Content-Neutral Laws ................ 2066

3.Some Additional Complications: Speaker-

Based Restrictions and the Secondary-Effects

Justification for Content-Based Restrictions ............. 2068

III.CONSTITUTIONAL AND POLICY ISSUES WITH CHAPTER 21 .......... 2069

A.OPEN MEETINGS LAWS AS CONTENT-BASED RESTRICTIONS

ON SPEECH AFTER ASGEIRSSON V. ABBOTT AND REED V.

TOWN OF GILBERT .............................................................. 2070

B.THE SECONDARY-EFFECTS TEST, ASGEIRSSON, AND IOWA

CHAPTER 21 ......................................................................... 2073

C.APPLYING INTERMEDIATE SCRUTINY TO CHAPTER 21 ............. 2076

D.THE POLICY DOWNSIDES OF CHAPTER 21, WITH

ILLUSTRATIVE EXAMPLES ....................................................... 2080

1.Frustration of Agency Functions ................................ 2080

2.Impact on Citizens’ Willingness to Serve in

Elected Office .............................................................. 2082

3.Uneven Application Across State Government ......... 2083

IV.A MORE RATIONAL WAY FORWARD: LEGISLATIVE AND

JUDICIAL REMEDIES FOR CHAPTER 21’S CONSTITUTIONAL

AND POLICY PROBLEMS ............................................................... 2085

A.POSSIBLE LEGISLATIVE SOLUTIONS ......................................... 2085

B.POSSIBLE JUDICIAL SOLUTIONS ............................................... 2089

V.CONCLUSION .............................................................................. 2091

I. INTRODUCTION

The news magazine The Week has a feature called “Boring but Important,”

which covers issues the average news consumer likely finds dull but whose

impact on the wider world merits public attention.1 One might also

appropriately apply the “Boring but Important” label to local government

meetings in Iowa. A city council, school board, or drain commission meeting

is unlikely to excite anyone. But these local governments serve essential

1. See, e.g., The Week Staff, Boring but Important, WEEK (Nov. 21, 2007),

https://theweek.com/articles/518938/boring-but-important (covering the resignation of a

White House terrorism advisor and a downward revision of estimates of global AIDS ca ses).

2019] IOWA’S OPEN MEETINGS LAW 2057

functions, not least of which is administering budgets that can reach into the

hundreds of millions of dollars.2

Given the importance of the mundane exercise of local government, it is

not surprising that these entities are subject to all manner of regulation. These

regulations include a requirement that meetings of governmental bodies be

open to the media and the general public.3 But what is the basis of this

openness requirement, and how can it operate optimally to best serve the

people it is designed to benefit?

The Framers of the Constitution contemplated the importance of open

government, at least by implication, by enumerating freedom of the press in

the First Amendment.4 A free press can operate only to the extent it has

knowledge, or access to knowledge, of the government’s secrets.5 Nearly 200

years after independence, a sweeping, nationwide effort to enact “Sunshine

Laws” began in response to a public desire for greater access to government

secrets.6 Sunshine Laws mandate that most government meetings and records

be open to the public, thereby allowing citizens to access and scrutinize the

actions of elected officials and public servants.7 This push arrived in Iowa in

1967.8

As with any novel exercise in lawmaking, Iowa’s open meetings statute

did not satisfy all parties.9 Despite its worthwhile goals, the law continues to

operate in some flawed ways that demand legislative and judicial attention.

This Note discusses some of these flaws, both legal and political, and offers

possible solutions for improving the law in a more fair and legal manner.

2. See, e.g., CITY OF DAVENPORT, IOWA, FY 2018: OPERATING & CAPITAL IMPROVEMENT

BUDGET 3 (2018), http://cityofdavenportiowa.hosted.civiclive.com/UserFiles/Servers/Server_

6481372/File/Departments/Finance/Budget/FY%202018%20Operating%20&%20Capital%

20Budget.pdf (showing the city of Davenport has a total budget for fiscal year 2018 of more than

$208 million).

3. See IOWA CODE § 21.3 (2018).

4. See Note, Open Meeting Statutes: The Press Fights for the “Right to Know,” 75 HARV. L. REV.

1199, 1204 (1962) [hereinafter Open Meeting Statutes]; see also U.S. CONST. amend. I (“Congress

shall make no law . . . abridging the freedom . . . of the press . . . .”).

5. Steve Stepanek, The Logic of Experience: A Historical Study of the Iowa Open Meetings Law, 60

DRAKE L. REV. 497, 507 (2012) (noting that, while the right to freedom of the press logically

implies a consequent right of access, few courts have seriously accepted this reasoning).

6. See JASON ROSS ARNOLD, SECRECY IN THE SUNSHINE ERA: THE PROMI SE AND FAILURES OF

U.S. OPEN GOVERNMENT LAWS 2–4 (2014) (detailing in brief the history of open government laws

at the federal level, including the Freedom of Information Act and the Government in the

Sunshine Act).

7. John F. O’Connor & Michael J. Baratz, Some Assembly Required: The Application of State

Open Meeting Laws to Email Correspondence, 12 GEO. MASON L. REV. 719, 719–20 (2004).

8. Stepanek, supra note 5, at 518; see infra Section II.A.

9. See Note, The Iowa Open Meetings Act: A Lesson in Legislative Ineffectiveness, 62 IOWA L. REV.

1108, 1109–10 (1977) (lamenting, inter alia, that the Iowa open meetings law a s it was then

formulated did not encourage the public to enforce their right to attend governemntal meetings).