Why Should Delaware Care?
Legislators passed a bill strengthening official misconduct laws in the wake of a conviction of a former state auditor, but a conservative lawmaker is also questioning what is covered in a new discrimination provision.
On Wednesday, Delaware lawmakers’ consideration of Senate Bill 203 to fix an error in a law passed last year provoked lingering concerns from a Republican member that the statute could be used to target certain conservative speech.
Last year, the General Assembly passed a bill that laid out new guidelines and penalties for a broad range of potential misconduct that could be carried out by state officials. The legislation included a prohibition on government officials discriminating against a person’s race, sexual orientation or gender identity, among other characteristics.
According to the statute, violating that section of law could bring a class G felony charge, the lowest felony crime level that carries a maximum prison sentence of up to two years.
While many believed last year’s bill came in response to the 2022 criminal trial of Delaware’s Democratic state auditor, some Republicans feared at the time that the anti-discrimination provision could be used to target them.
Those concerns were reignited during a hearing of the Senate Judiciary Committee Wednesday when State Sen. Bryant Richardson (R-Seaford) questioned whether a bill he intends to introduce this month – which would ban public funding for gender transition surgeries for minors – could be deemed illegal discrimination under the misconduct law.
“I don’t know if that would be considered intending to discriminate or practice discrimination,” he said.
During the hearing, Richardson also asked colleagues for examples of violating the intention to discriminate provision of the law.
The question sparked impatience from the committee chair, State Sen. Kyle Evans Gay (D-Brandywine Hundred), who said such inquiries had already been “asked and answered many times on the floor and in committee” last year, when legislators had considered the updated misconduct legislation.
Nevertheless, the bill’s sponsor, State Sen. Sarah McBride (D-Wilmington), addressed the questions, stressing that there are “Constitutional protections for speech and debate on this floor.”
Those protections were also cited by the Delaware Department of Justice last year in a legal opinion issued as part of the legislative process, she said.
McBride further said it was neither the intent, spirit, or effect of last year’s bill to “in any way criminalize political disagreements that occur within, perhaps, a local council or county council.”
Finally, McBride noted that the current legislation before the committee will not change the official misconduct law in any substantive way. Instead, it is intended to clean up inconsistent language that had been mistakenly left in the text of last year’s legislation.
Following the hearing Wednesday, McBride said in an email that she was confused why “resolved legal questions” were brought up during a hearing for a bill intended to clean up an administrative error in the law.
I “am forced to wonder if his concern is an admission that the legislation he proposes is intended to discriminate,” she said.
When reached for comment, Richardson said he asked the questions because he “wanted to receive a renewed assurance on the legislative record that future bills would not become targets of a criminal investigation.”
“I think it’s an important point to make sure that we are able to bring forth legislation that we strongly believe in,” he said.
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