Republican state legislators – with perhaps some Democrats tagging along – will be looking in early 2018 to take power from the executive branch of government.
Specifically, watch for constitutional amendments coming that, among other things, would give the 104 part-time legislators the power to call themselves into a special session, under certain circumstances.
And watch for new laws or amendments that detail the Attorney General’s responsibilities in terms of the legislative branch of government.
In addition, expect lawmakers – the Democrats may well agree on this one – to pass laws detailing how special elections are run in the state.
All this stems, ultimately, from GOP Gov. Gary Herbert refusing to call a special session this spring or summer to let the Legislature decide how a special election was run to replace former-U.S. House Rep. Jason Chaffetz.
Herbert pointed to the U.S. Constitution, which says a state’s governor will call (and presumably run) a special election in cases of House vacancies.
But GOP and Democratic legislative leaders asked Herbert to call a special session – which he along can do – so lawmakers could set the Chaffetz replacement rules.
He declined.
In an open GOP House caucus last week, House Majority Leader Brad Wilson, R-Kaysville, said Speaker Greg Hughes has given he and Assistant Majority Whip John Knotwell, R-Herriman, the assignment of coordinating all related legislative powers bills for January’s upcoming 2018 general session.
Wilson has already filed two bill requests on constitutional legislative powers.
If amendments to the state Constitution are needed – like giving lawmakers the power to call themselves into a special session – they must pass the 75-member House and 29-member Senate by two-thirds majorities (50 and 20, respectively).
Amendments go directly to a public ratification vote in the next general election – 2018 in this case.
The governor has no official say in amendments – he can’t veto them. Although Herbert can use his bully pulpit arguing against voter approval.
The Constitution currently says only the governor can call lawmakers into special session; only he can set the agenda.
Any bill passed, of course, goes to the governor. He can veto it – with the Legislature overriding that veto with two-thirds majorities in each house.
As you may recall, Herbert declined to call the Legislature into a special session to deal with how the Chaffetz special election would be run.
Instead, Herbert and Lt. Gov. Spencer Cox adopted a SB54-like process, where candidates could collect 7,000 3rdDistrict voter signatures to make the Aug. 15 primary, or could go to the party delegate convention, or both.
Hughes, R-Draper, and his GOP caucus were especially displeased.
With all the Senate and House Democrats agreeing, Hughes ran a public campaign criticizing Herbert, asking him to call the SS.
When Herbert refused, Hughes and Senate President Wayne Niederhauser, R-Sandy, formally asked GOP Attorney General Sean Reyes to give an opinion on whether Herbert had such a power to conduct the special election by himself.
Reyes reportedly wrote such an opinion, but at the insistence of Herbert – citing attorney-client privilege — refused to release it to Hughes and Niederhauser. (Reyes’ office turned down a UtahPolicy GRAMA request for the opinion.)
That left the legislative leaders angry at Reyes, saying he could have given legal advice to two branches of government at the same time – as he has in the past.
So, you see three different legislative powers issues stemming from one incident:
- Lawmakers changing the Constitution to call themselves into special session.
- Lawmakers changing the law and/or Constitution to tell the AG that he represents the legislative branch if government, should lawmakers seek his legal advice.
- Lawmakers changing the law and/or Constitution to clearly say they and they alone get to decide how elections are handled in Utah, special or not.
There could be other tidbits of separation of powers delineations in addition to those three listed above.
Wilson and Knotwell will oversee a concerted, and coordinated, effort on the bills/amendments that leadership will back in January.
That way should some other, more wacky, separation of powers ideas pop up in the House – which is always a possibility – leaders can refuse to back those while still keeping the GOP caucus focused on the serious ones they want passed.
While this all will be cloaked in the high-brow language of the Founding Fathers’ checks and balances, separation of powers, count on at least some of it falling into personal politics between the lame-duck Herbert and GOP legislators who have been finding fault with the governor over a number of issues in recent years – and certain incumbents looking to run for governor in 2020.
What could legislators do to Utah’s executive branch of government?
Stay tuned.
