Ballot measures in five states would expand legislative powers

Gov. Asa Hutchinson delivers his State of the State address to lawmakers in the House chamber of the state Capitol in Little Rock, Ark., on Tuesday, Jan. 12, 2021. (AP Photo/Andrew Demillo)

Voters in five states will consider ballot measures next month that would expand their legislatures’ power through constitutional amendments.

Measures in Arkansas, Idaho and Kentucky would let lawmakers — who typically meet for only a few months each year — call themselves back to their respective state capitols for special sessions. A Kansas amendment would let lawmakers block state agency regulations they don’t like. And a West Virginia amendment would give lawmakers final say over new Board of Education rules and policies.

Legislators who support the changes say they want to keep lawmakers on equal footing with an executive branch that has grown too powerful. Governors and other opponents of the amendments say the changes aren’t necessary and are fueled by politics.

“I think it truly is a power grab,” Kansas Senate Minority Leader Dinah Sykes (D) said of the ballot measure in her state.

Republicans control the Kansas legislature while Gov. Laura Kelly (D) controls the executive branch. Sykes noted that her GOP colleagues can already override Kelly’s vetoes. “It’s really scary, because as I said, they already have a supermajority,” she said.

The Arkansas, Idaho and Kentucky ballot measures that would change special session rules were prompted in part by the COVID pandemic. Lawmakers in those states spent most of 2020 out of session while their governors led the response to the crisis.

“Particularly in the midst of COVID, we had an executive branch that was continuing an extended emergency and making statutory-related decisions without the input of the general assembly,” said Kentucky Senate President Pro Tempore David Givens (R).

Arkansas, Idaho and Kentucky are among the 14 states where only the governor can reconvene lawmakers after the regular session ends, according to the National Conference of State Legislatures, a nonpartisan organization that advises and advocates for state legislative bodies.

The Kentucky measure, which lawmakers last year voted to put on the ballot, would allow the House speaker and Senate president to together call a special session, which can last no more than 12 days.

Idaho’s measure, also put on the ballot by lawmakers last year, would allow the House speaker and Senate president pro tempore to call a special session if at least 60% of both House and Senate members request one.

Idaho Assistant Majority Leader Jason Monks (R) noted that the other two branches of state government, the governor and state courts, work year-round. “It’s not necessarily a matter of the legislature getting more power,” he said. “It’s more trying to have a level playing field.”

Some governors say lawmakers already have plenty of power and question whether they need to be able to call themselves back into session.

“I do not support this amendment,” Kentucky Gov. Andy Beshear (D) said in a statement to Pluribus News. “It would turn the part-time legislature into a full-time legislature and would further enrich legislators, who already make more for their part-time duties than the average Kentuckian makes working a full-time job.”

Some legislators in the minority are also skeptical. “We just saw it as being used as a tool for grandstanding,” Idaho House Minority Leader Ilana Rubel (D) said.

The Kansas measure has its roots in a longstanding tug-of-war between the executive branch and the legislature that predates COVID.

State regulators occasionally go beyond interpreting a law and veer into changing it, said Kansas Rep. Barbara Wasinger (R), vice-chair of the joint committee on administrative rules and regulations.

Lawmakers can pass new laws to clear up regulatory confusion and the attorney general’s office can strike down illegal rules and regulations. But Wasinger said lawmakers wanted additional oversight.

The constitutional amendment was proposed by Attorney General Derek Schmidt (R), who’s running for governor, and is backed by business groups. It would allow lawmakers to strike down rules and regulations with a majority vote, a power known as a “legislative veto.”

“It’s not going to be a power grab by the legislature,” Wasinger said. “It’s a tool to say, what you’re doing is changing legislation. We don’t like it, and we’re going to take it to the House and the Senate to see if they agree, and you’ll have to revoke it.”

Kansas House Majority Leader Daniel Hawkins (R) said lawmakers hope the amendment will deter regulators from going too far. “It’s a tool that we hope we don’t have to use,” he said.

Twenty-five states allow for some kind of legislative veto oversight, and seven have enshrined it into their state constitution, said Michael Berry, an associate professor of political science at the University of Colorado Denver. He also noted there is some debate over whether legislative vetoes are allowed under the U.S. Constitution.

“From a constitutional perspective, I think there are different understandings of whether these types of legislative oversight encroach too excessively on the powers of the executive branch, or whether they are valid expressions of legislative authority,” he said.

The Kansas measure is opposed by the governor and Democratic lawmakers. “The legislative veto would further complicate the regulatory process and keep help from getting to Kansans efficiently,” Brianna Johnson, Kelly’s communications director, said in a statement to Pluribus News.

Lawmakers who back the ballot measures say they’re not motivated by partisan politics. Republicans control both the legislature and the governor’s mansion in Arkansas, Idaho and West Virginia. In Kansas and Kentucky, Republicans control the legislature and Democrats control the governor’s office.

“The opposition to this is making it sound like it’s nefarious,” Hawkins said. But tension between the legislature and the governor happens regardless of who heads the executive branch, he said.

Givens of Kentucky made the same point and noted that some Democratic lawmakers voted to put the special session amendment on the ballot. “This is not a partisan measure, and I stress that,” he said.

Sykes said she’s not sure the Kansas measure would have made it onto the ballot if there had been a Republican in the governor’s mansion. “I don’t think it would have been,” she said.