Bob Bernick’s notebook: A losing battle

GOP Gov. Gary Herbert is in a separation of powers fight with the Republican-controlled Legislature.

He hasn’t lost many of these confrontations over the last nine years.

But he may lose this one.

Herbert vetoed only two bills out of the 500 or so passed by the 2018 Legislature – the governor’s job of signing, vetoing, or allowing a bill to become law without his signature finishing this past week.

The two bills are HB198 and SB171.

But lawmakers also passed a Utah constitutional amendment, HJR18. Because constitutional amendments must pass the House and Senate by two-thirds supermajorities – the same numbers as a veto override requires – it would make no sense to have the governor have veto power over them – they already have the override votes.

So amendments go from the Legislature directly to the ballot, for voters to decide.

HB198, by Rep. Merrill Nelson, R-Grantsville, requires the attorney general to give the Legislature a legal opinion, if leaders ask for one.

It stems from the long-running battle between Herbert and GOP leaders over the governor’s refusal to allow AG Sean Reyes to give lawmakers an opinion last year over how the governor conducted a special 3rd District U.S. House election.

SB171, by Senate Majority Whip Stuart Adams, R-Layton, would allow the Legislature to officially enter a lawsuit when a law they passed is challenged in court.

HJR18, by House Majority Leader Brad Wilson, R-Kaysville, would allow legislative leaders to call lawmakers into a special session, under certain circumstances.

Currently, only the governor can call a special session; only he sets the agenda.

That, again, stems from Herbert’s refusal to call a special session last spring to allow lawmakers to decide the 3rd District special election process.

If GOP lawmakers had been allowed to set the 3rd District election rules, likely today we would have arch-conservative Chris Herrod, a former House member, sitting in the U.S. House seat ultimately won by former Provo Mayor John Curtis.

In any case, with two years left in his final term, Herbert is stretching himself a bit.

In years gone by, if Herbert had a disagreement over a bill with the Legislature, he would veto or sign the measure and then announce he was calling a special session later in the year to resolve the issue amicably.

No such offer was coming from Herbert this time.

He clearly believes – and polling by’s Dan Jones & Associates shows – that he was correct in setting up an SB54-like process to replace former Rep. Jason Chaffetz when he resigned last year.

And Herbert stands by his claim that the attorney general is the lawyer for all of Utah state government – especially for the executive branch.

Thus the two bill vetoes, and Herbert’s continued opposition to a constitutional change that would allow lawmakers to call themselves into special session over the objection of the governor.

If my numbers are correct, the governor will have to change the minds of 13 House members or four senators to stop a veto override of HB198.

He’ll have to change the minds of 12 House members or two senators to stop a veto override of SB171.

Those are the bare minimums.

Thirteen House members and 6 senators missed the final votes on HB198, so if any of them are in favor of the vetoed bill, then Herbert’s chances dwindle accordingly.

Likewise, six House members and three senators missed the final votes on SB171. If any of those vote for an override, Herbert’s chances fall accordingly.

Now, Herbert has a lot of friends in both the House and Senate. And historically, Republican governors haven’t had much of a problem twisting a few lawmakers’ arms and getting his or her vetoes upheld.

But those were almost always on a bill or line-item budget vetoes that stood alone – and were not part of a larger fight over legislative powers vs. the executive.

This time around it’s a question of the Legislature standing up for its own powers; its own standing as one of three branches of government.

And although rarely used, when you look at the law-making and budget powers of the Legislature vs. the governor, the lawmakers have the final say in these matters – or the voters when it comes to constitutional changes.

Unless Herbert can work out a deal whereby he calls lawmakers into a special session this year for a compromise over HB198 or SB171, I’m now guessing he loses both vetoes in an override session this spring.

And whether Herbert has the political chops to stop HJR18 with voters via his bully pulpit this October and November remains to be seen.