From masked legislators and remote voting, to shorter committee meetings and fewer visitors, the 2021 Kentucky General Assembly will look very different than previous legislative sessions due to COVID-19. House and Senate leaders say they have worked to balance public health guidance with their legislative obligations.
“We are taking it seriously and we are putting forth the best effort we know,” says Senate President Robert Stivers (R-Manchester). “But still, we have a constitutional duty to be there… through March 30.”
Stivers and House Speaker David Osborne (R-Prospect) say lawmakers are required to wear face coverings in chambers, committee rooms, and other public spaces where legislative staff are present. Stivers says masking will help protect members who are at greater risk of the virus due to their age or health conditions.
Thanks to technology purchased with federal CARES Act money, House members can cast real-time floor votes from their Capitol Annex offices. Senate members will still vote in person, but voting periods will be lengthened so senators can come in and out of the chamber to cast their yay or nay.
Members can participate in committees in person or remotely, but those sessions will be limited to one hour to allow time for the rooms to be sanitized before the next meeting. Since the capitol is still closed to most visitors, attendance at committee meetings and chamber galleries will be greatly reduced.
Senate Minority Floor Leader Morgan McGarvey (D-Louisville) applauds the new protocols. He says the measures to limit COVID spread are important since lawmakers come to Frankfort from every part of the state and then return home on weekends.
“We want to keep our members and their families and the people who work in this building safe,” says McGarvey.
Leadership of both parties have received the COVID vaccine. House Minority Floor Leader Joni Jenkins says the bipartisan display was an important signal to Kentuckians that the vaccine is safe.
“It is our shot for getting back to normal – to opening our schools, to opening our businesses, and opening our churches,” says Jenkins. “So I hope that every Kentuckian, when they get the opportunity, will take it.”
The State Budget
Stivers and Osborne say their chambers will institute temporary procedural changes in how bills are considered to help offset any slowdowns caused by the safety protocols. But the leaders still expect fewer bills to be considered this year. That session will be no less busy, though. Osborne says committee meetings will begin immediately, and a Saturday session is possible the first week.
“I think you will see an aggressive agenda throughout the entirety of the session,” says Osborne. “With a 30-day session, having to draft a budget, we have no time to waste.”
A one-year state budget is among those items slated for quick action. Given the massive uncertainties posed by the pandemic, lawmakers in the 2020 General Assembly session opted to pass a one-year budget instead of the normal two-year spending plan. Osborne says he expects lawmakers to hash out the final budget details by early February. Stivers says he hopes to move quickly through the budget process so lawmakers can move on to other bills in the remainder of the short session.
Although the state is expected to end the current fiscal year with a surplus, Stivers says the fiscal outlook is far from rosy. He contends relief money from the federal CARES Acts have propped up the state budget more than people realize. Given the continued economic uncertainties caused by the pandemic, he says lawmakers must be very cautious with spending.
A fiscal priority for both parties is education funding. Osborne says teachers need the tools to help children who have been adversely impacted by the pandemic and by remote learning. He says achievement gaps, especially among impoverished children, are increasing.
“We are seeing a crisis develop in front of us, and to not address it, I think, is unconscionable,” says the House Speaker.
Democrats Jenkins and McGarvey agree. They urge increased funding for extra interventions as well as early childhood education, universal pre-kindergarten, summer school, and child care centers.
Gov. Andy Beshear is also expected to request pay raises for K-12 teachers as well as all public school staff. But Osborne says the current fiscal climate makes those increases “difficult to envision.”
Executive Powers and States of Emergency
Republican lawmakers have criticized many of the COVID-related mandates Gov. Beshear has implemented during the ongoing state of emergency. They are expected to file legislation that would limit a governor’s authority to issue executive orders and declare states of emergency.
“Those emergency powers are very, very important to the successful operation of government,” says Osborne. “That doesn’t mean that they are unlimited.”
Stivers expects bills to update Kentucky Revised Statute 13A to require more clarity in executive orders issued by a governor. Changes to KRS 39A would limit the duration of a state of emergency and the functions over which a governor has authority during an emergency. Stivers says that it is important to distinguish between operational functions of the commonwealth and fundamental rights protected by the state and federal constitutions.
Because Kentucky has a part-time legislature, McGarvey says the state constitution gives governors broad executive powers to conduct state business. A recent Kentucky Supreme Court decision upheld Beshear’s pandemic mandates and his authority to make them.
“If we’re taking powers way from the chief executive to declare an emergency... when we’re not allowed constitutionally to take votes, what mechanism are we putting in place?” says McGarvey.
Jenkins says she’s not opposed to reviewing these statutes. She says KRS 39A has been updated twice since she’s been in Frankfort: after the 9/11 terrorist attacks and during the 2008-2009 fiscal crisis.
“But I think we have to be very, very careful that we’re not reacting or overcorrecting from what folks may have seen as unpopular, but I think necessary choices that the governor made,” says Jenkins.
Stivers says the legislation is not meant to target Gov. Beshear, a Democrat, but rather to address the balance of power between the legislative and executive branches. Given the current partisan climate in the United States, Osborne says that it’s not surprising that these proposals would be construed as partisan. But he says Republican legislative leaders also had issues with how former Gov. Matt Bevin, a Republican, used his executive powers.
Republicans may also propose a constitutional amendment to enable the legislature to call itself into session so it can play a greater role in responding to emergencies. Currently only governors can call special sessions for a specific purpose. Legislatures in 39 states already have some ability to call themselves into session.
In the 2020 General Assembly, Speaker Osborne proposed a bill to keep the current session lengths and adjournment dates but allow lawmakers to reserve some legislative days to use later in that calendar year. The legislature would call itself into session for those days to conduct additional business. Osborne says that would give lawmakers more flexibility to deal with changing situations.
It’s uncertain what bill or bills on the matter will be filed this year. Gov. Beshear says he fears such a move would lead to a full-time legislature. Stivers says that’s not the goal.
“We don’t need a full-time legislature,” says the Senate president. “But I think it would be good for us to have the ability to call ourselves back in.”
McGarvey says “the devil is in the details” about proposals to change how the General Assembly convenes. He says a legislature that could be called to Frankfort at any time could create financial hardship for those lawmakers who depend on their regular jobs to support their families.
“I like the idea, as a legislator, of a little more legislative independence,” says McGarvey, “but it worries me that this defeats a lot of the spirit of a part-time legislature.”
Jenkins says governors need the flexibility to quickly act in a crisis. She contends the General Assembly is meant to deliberate over legislation and is therefore not designed to be nimble in emergency situations.
Other Legislative Issues and Priorities
Lawmakers are expected to revisit several high-profile issues that have bipartisan support but have failed to gain passage in previous sessions.
Louisville Republican Rep. Jason Nemes will again propose legislation to give Kentuckians access to medical marijuana for certain conditions. A similar bill passed the House last year, but then died in the Senate.
“The overwhelming majority of the people in our caucus and in our chamber are tired of making criminals out of sick people,” says Osborne. “We freely prescribe narcotics and opioids to excess every single day with far greater consequences.”
Senate President Stivers says he believes there is medicinal value to tetrahydrocannabinol (THC), one of the compounds found in marijuana. But he contends the current studies that tout the benefits of THC were too short in duration and involved research populations that were too small. He wants the federal government to conduct full-scale research into medical marijuana before the state acts on the issue.
Gov. Beshear also endorses medical marijuana, but he wants it to be taxed to help pay for the administrative and regulatory costs. Beshear says he wouldn’t tax patients, but rather other parts of the production and distribution chain.
Stivers, McGarvey, and Osborne all say medical marijuana should not be taxed since the state has a prohibition against taxing medicines.
“It’s past time for medical marijuana in Kentucky,” says McGarvey. “I’m less convinced on the tax question of it, though. I don’t think we should view medical marijuana itself as a revenue producer for the state.”
In addition to a new bill from Nemes, McGarvey says Senate Democrats may file their own medical marijuana legislation.
Sports betting is also expected to resurface this year. Rep. Adam Koenig (R-Erlanger) has championed legislation for several years to allow wagering on sporting events. Those bills have enjoyed wide bipartisan support but have failed to gain passage. Jenkins says she expects another sports betting bill with Democratic cosponsors to be filed this year.
But Stivers and Osborne say that they are more likely to pursue legislation to make historic horse racing games legal. A Kentucky Supreme Court ruling in September said the slot machine-like games that allow people to bet on the outcomes of previously run horse races are illegal under state law, which only allows for pari-mutuel wagering.
Three gaming centers around the commonwealth had been using the historical games. Since that infrastructure already exists and had been generating tax revenue for the state, Stivers and Osborne say historical racing should take precedence over legislation to allow general sports betting. Osborne says the Supreme Court decision provides clear guidance on what lawmakers need to do to make historic racing legal.
Another first-week priority for Republicans is to pass liability protections for Kentucky businesses, schools, churches, and non-profit organizations. Osborne says these entities need protection from frivolous lawsuits involving the potential spread of the coronavirus. Stivers says without this protection even more businesses will close, which will further damage state revenues and Kentucky’s economy. McGarvey says he knows of no lawsuits filed in the state over COVID liability. He says he wants to see further justification for such protections.
House Democrats are backing reforms to how Kentuckians vote. Based on the success of temporary measures implemented in the 2020 primary and general election, Jenkins says they want to make early voting and no-excuse absentee voting made permanent.
Osborne says he does think there will be changes to voting procedures, but he says Rep. Kevin Bratcher (R-Louisville) is consulting with the Kentucky Secretary of State and county clerks to determine the best options to pursue. Bratcher is the chair of the House Elections, Constitutional Amendments, and Intergovernmental Affairs Committee.