20200416 Special Session

While the overriding issue in the virtual Utah legislative special session is money -- changing budgets and deadlines because of the coronavirus’s impact on state operations, there are a few political issues as well to be dealt with over the next few days.

One sensitive one is HB3005, which UtahPolicy.com has detailed previously.

The bill, sponsored by the GOP majority leaders in both the House and Senate, would require the governor -- in this case Republican Gary Herbert -- to consult with, and advise, the four partisan leaders of both the House and Senate 48 hours before he issues a formal emergency executive order in the case of a pandemic or disease.

Four GOP House members actually voted against the bill, with Rep. Merrill Nelson, R-Grantsville, saying it “may” violate the separation of powers -- “unduly” hampering a governor’s powers in the case of an emergency, where a governor must act more nimbly than the 104-member Legislature.

But House sponsor, Majority Leader Francis Gibson, R-Mapleton, said he couldn’t “disagree more” with Nelson’s analysis.

Herbert declined to comment on the bill two days ago during a daily coronavirus briefing, saying he hadn’t read it yet. However, on Thursday, Herbert's office expressed some misgivings about the bill.

"We have concerns with elements of the bill and its impact on executive branch operations," they said in a statement.

The House GOP caucus held an online meeting Wednesday night, and Nelson said he couldn’t speak against the bill then because he had not read it yet.

Nelson said the Utah Constitution gives the governor, and the executive branch, “inherent” authority to take emergency actions. And in fact, there is already a law saying the governor, on any emergency orders, not just for diseases, must tell lawmakers what he’s doing and why, within 24 hours of such action.

And that is good enough, said Nelson.

But Gibson said some of the orders Herbert has issued over the last several weeks, came with just 15 minutes notice to legislative leaders -- like himself.

The governor can and should do better, said Gibson. And his bill is aimed to fix that.

There is no order than Herbert has issued, said Gibson, that couldn’t have waited two days -- time for legislators to talk to their own legal counsel, to other legislators, and to folks off Capitol Hill to get their response. Maybe more eyes looking at a critical disease-fighting issue could make the order better, Gibson said.

While he has not ordered a shutdown -- several local government officials have for Salt Lake City and County -- Herbert’s actions have been criticized by several conservative groups or local officeholders.

And while praising what the governor has done overall, in his opening remarks, House Speaker Brad Wilson, R-Kaysville, said he expects Utah government to start opening up the economy on May 1 -- something Herbert has not yet announced. And he may not, extending his Stay Safe, Stay Home voluntary social distancing recommendation.

“I’m not going to say anything bad about the governor because I think he’s been doing a great job,” said Wilson during his post-session media availability. “He’s got a really hard job. We’re just talking about identifying ways to make the process better. That’s what this bill is about.”

Rep. Kim Coleman, R-West Jordan, who is running for the 4th U.S. House District this year, said a number of her constituents are asking her where Herbert even gets the authority to make some of the orders he has issued -- hinting he’s gone too far.

As of Thursday afternoon, the bill was on hold in the Senate as lawmakers were working out some changes with the governor’s office.

Lawmakers also tackled how to kickstart Utah’s economy, which is crumbling amid the lockdown from the coronavirus pandemic.

The Senate approved SB3004 from sponsor Sen. Dan Hemmert, R-Orem. The bill creates a commission to advise Gov. Herbert on the state’s response to the COVID-19 outbreak. The commission is tasked with coming up with a plan to set risk levels for businesses and Utahns in order to get the state’s economy running again.

The commission would only serve an advisory role. The governor has the option of accepting the commission’s recommendations, modifying them or rejecting them. If they’re rejected, the governor must explain why he is not implementing them.

“We’re trying to find a balance between public health and the economy,” said Hemmert. “I think it’s time to start working toward reopening the economy.”

Any recommendation implemented by the governor would supersede any local orders, but the governor would have the authority to make exemptions, and those could be targeted geographically if one area of the state is ready to move quicker economically than another.

Gov. Herbert previously created the Coronavirus Economic Response Task Force in the early days of the coronavirus pandemic. Hemmert explained in a text message to UtahPolicy.com that the new commission is an effort to have the executive and legislative branches work more closely on how to get the state’s economy moving again.

The commission’s first recommendations would be due next week, with Gov. Herbert being required to accept or reject them by the end of the month.

Hemmert said that the timeline seems aggressive, but any decision will be made with caution.

“The commission has just been tasked to come up with a plan to move us from our current risk level to a slightly lower risk level. They come up with a plan and the governor gets to adopt it or explain why he doesn’t. I don’t think it’s unwise to put timelines on when to get the economy going again because it’s up to the governor to ultimately implement that,” said Hemmert.

On another political issue, Thursday lawmakers passed HB3006, which for June’s primary election only, says most of the balloting will be by mail-in voting, with counties which so chose setting up same-day, drive-by voting, as well.

Two glitches still to be worked out: Some of the counties don’t have the money now to have a return ballot postage paid.

Sponsor Rep. Jefferson Moss, R-Saratoga Springs, said the U.S. Post Office will deliver all mail-in ballots regardless of whether it has a stamp on it or not -- and they try to bill the county clerk for the postage.

Moss said there is $300,000 already in the Utah Elections Office budget to help pay the cost of mail-in voting, and he hopes federal coronavirus funds will pay for postage, if belatedly.

Also, independent voters -- who aren’t registered in any political party -- will be contacted and asked if they want to vote in the Democratic Party primary without joining that party, or if they want to join the Republican Party and vote in that primary.

But there won’t be in-person party registration on Election Day this year -- if you want to register in a party you must do that at least 11 days before the June primary.

The Senate gave final approval to the bill on Thursday afternoon.

The Senate also approved SB3002, which modifies the state’s “right to try” law, allowing medical practitioners to treat coronavirus patients with experimental drugs, removing the fear of a civil lawsuit so long as the drug is administered in “good faith.”

“This law allows for investigational medications for treating patients,” said Senate Majority Leader Evan Vickers, R-Cedar City, who sponsored the bill. He mentioned the anti-viral drug Remdesivir, which is being used to treat coronavirus in certain cases.