After a very busy first week of the 2021 General Assembly session, which saw the Republican-controlled legislature pass several priority measures on gubernatorial powers and on abortion, lawmakers will turn their focus now to the state budget. The COVID-19 pandemic has put legislators in the unusual position of passing a one-year spending plan during the short, 30-day session.
Lawmakers opted to pass a single-year budget during the 2020 session just as the pandemic hit. Senate President Pro Tempore David Givens (R-Greensburg) says the state has weathered the disruption better than expected, thanks to strong revenues and billions of dollars in relief from the federal CARES Acts.
“We potentially are faced with the opportunity to put a lot of money into a Budget Reserve Trust Fund for uncertainty that may lie ahead, invest some of those funds in the places in government that we feel are most beneficial to the citizens of the commonwealth, and at the same time trying to continue to fund these pension systems,” says Givens. “We have a lot of work to do and a short time to do it in.”
The House passed its version of a $12 billion continuation budget on Monday. House Speaker Pro Tempore David Meade (R-Stanford) says the Senate is expected to approve its own version of the spending plan this week. That will send the budgets to a conference committee, which Meade says will work during the break period so that lawmakers will have a final budget to review when they return in February.
Tempering Executive Powers
The legislature gave final approval to three bills on Saturday meant to address various gubernatorial powers. House Bill 1 is a response to Gov. Andy Beshear’s pandemic-related orders effecting businesses, schools, and churches in the commonwealth. The legislation says that those and other entities can reopen now if they comply with guidance from the U.S. Centers for Disease Control and Prevention or from the Kentucky governor’s office, whichever is less restrictive.
Meade and Givens say HB 1 will strike a better balance between protecting the economy and preserving public health. They say Republicans gave Beshear, a Democrat, latitude during the early days of the pandemic to protect Kentuckians from the virus.
“We had a lot of frustration, though, over the course of the summer and especially into the fall and winter as it seems that the balance tipped in ways that damaged our economy.” says Givens. “It damaged the emotional well-being of a lot of our citizens.”
Meade contends Beshear and others have positioned pandemic response as a choice between only two options: opening the economy or saving lives.
“I believe that the majority of Kentuckians fall right there in the middle of that,” says Meade. “They believe that we can open up this economy, keep it running, while safely protecting the lives and the health of the folks of this state.”
Democrats argue HB 1 will hamstring the governor’s ability to quickly address pandemic issues that may be specific to Kentucky. Senate Minority Caucus Chair Reggie Thomas (D-Lexington) also says the measure gives too much control over public health concerns here to an outside entity not accountable to Kentucky voters. Plus, he says, if either the CDC or the governor’s office fail to issue orders on a particular health concern, then the less restrictive guidance for people to follow would be no guidance at all.
“Businesses, churches, schools can do whatever they want to do,” says Thomas. “That leads us to the wild, wild west, where people can go and do anything they want in a time of a pandemic where we’ve got to have some kind of control.”
Lawmakers passed another check on executive authority with House Bill 5, which strips a governor of powers to reorganize state boards and commissions. Republicans argue that governors of both parties have abused this privilege by stacking boards with their own people.
“This has been used 446 times by the previous five [governors],” says Meade, “Government can not operate in an efficient manner with that much turnover, and that’s really what this is about.”
Thomas says this is another example of the legislature seeking to dictate how the executive branch operates. He says governors need flexibility, especially in times of crisis.
“The governor is given a lot of boards and commissions that he has to manage,” says Thomas. “He should be able to do that... without our oversight.”
Legislative Sessions, Super-Circuit Court
The Republican supermajorities in the legislature seek to exercise their political muscle on two other bills still under consideration by lawmakers.
House Bill 4 proposes a constitutional amendment that would remove the traditional ending dates for legislative sessions, March 30 in odd-numbered years and April 15 in even-numbered years. Under the amendment lawmakers would still have the same number of constitutionally mandated working days (30 in odd-numbered years, 60 in even-numbered years), but legislators would have the option to reserve some of their working days for use later within that same calendar year.
Another provision of the measure would allow lawmakers to call themselves into session for up to 10 additional working days if three-fifths of the members in both chambers agree to the move. Under the proposal, governors would retain their existing right to call lawmakers into special session.
House Minority Whip Angie Hatton (D-Whitesburg) says that it is inappropriate for lawmakers to call themselves into session since they would benefit financially from the move. She says General Assembly sessions cost taxpayers about $65,000 a day.
“If we were able to call ourselves into special session, it’s basically a backdoor pay raise for legislators,” says Hatton. “It is clearly not constitutional. It’s an overreach.”
Democratic critics say the measure will also lead to Kentucky having a full-time legislature. Meade disagrees, saying this proposal will make it easier for lawmakers to work their other jobs instead of having to be in Frankfort for weeks at a time.
“To be able to possibly spread this out throughout the year, I think would be even more beneficial for those part-time legislators and would be even more attractive to getting quality people into these positions,” says Meade.
Legislators in 39 states have some ability to call themselves into session. Kentucky Republicans say this would give the General Assembly greater voice in ongoing crises like the pandemic, the flexibility to help address an emergency that may arise, or the option to wait to act on legislation until they have more information.
Although he is leery of giving legislators the ability to call themselves to Frankfort, Thomas says he supports the idea of more working days. If lawmakers exercise that power, Thomas says they should be prepared to pass legislation that justifies their presence.
“I am in favor of amending the constitution... and looking at how we can be able to come back responsibly and continue to do the people’s work,” says Thomas. “We need to have a winter and a summer session… Our work should not just stop in April and March.”
Givens says a bipartisan group of legislators is working on a committee substitute to address concerns about the bill. For example, he says there are questions about how lawmakers would actually call themselves to Frankfort, and whether bills could roll over from one part of a legislative session to another.
Looking to the judicial branch, Republican lawmakers are sponsoring legislation that would create three regional courts to hear constitutional challenges to state statutes, executive orders and regulations.
“We’ve long had some frustration in the legislative body about the court of venue being Franklin Circuit and potentially that not being representative of the voices of the entire commonwealth,” says Givens.
Hatton says lawmakers of both parties have expressed “sour grapes” over the rulings out of Franklin Circuit Court, but she says judges who are elected to those seats are experienced at handling such cases.
“Franklin Circuit is very rarely overturned,” says Hatton. “Those judges have a great deal of expertise,” says Hatton.
In addition to questions about the constitutionality of House Bill 3, Hatton says forcing cases into one of the so-called “super-circuit courts” would cause unnecessary delays in the legal process.
Chief Justice John Minton testified against the bill in committee last week. Givens says he expects a different version of HB 3 to emerge later in the session that avoids “telling a co-equal branch of government what they must do.”
On Monday, the House formed a special committee to consider a petition submitted by four Kentuckians calling for the impeachment of Gov. Beshear over his pandemic-related restrictions.
Hatton, who was named a member of that committee, says the panel is comprised of four Republican and three Democratic representatives. She says while the state constitution requires the House to form a committee to consider such petitions, it doesn’t say lawmakers must act on them.
Meade says the committee chair, Rep. Jason Nemes (R-Louisville) has not yet set a date for the group to meet, but Meade says they should be able to work during the interim break. He says impeachment inquiries against a constitutional officer have been launched only four times in Kentucky history, and only one action resulted in a conviction. (State Treasurer James Tate, who served from 1867–1888, was convicted in absentia for stealing about $250,000 from the state treasury.)
While people may disagree with Beshear’s mandates, Senators Givens and Thomas both say the governor has done nothing to warrant impeachment.
Lawmakers are also reacting to FBI warnings about threats to state capitols in the wake of last week’s storming of the U.S. capitol in Washington. On Saturday while Kentucky legislators were in session, a small group of people, some carrying weapons, protested on the capitol grounds in Frankfort.
Givens, Thomas, Meade, and Hatton all say they did not feel threatened that group. But Hatton says some legislative staff did feel threatened. Givens says Sen. Danny Carroll (R-Paducah), who is a former police officer, is coordinating with representatives from the legislative, judicial, and executive branches on capitol security concerns. He says those talks could result in legislation being filed later this session to create a safe space at the capitol complex for peaceful protests.
Meade says Kentucky State Police and capitol security will do what’s needed to protect lives and property at the capitol. He says he believes Kentuckians are kind and loving people who won’t resort to violence.
“There’s a lot of distrust right now that they feel, and it’s important that they voice that,” says Meade. “But when it becomes degrading or it becomes violence, at that point it’s gone too far.”
Givens says he supports peaceful protests but strongly opposes rioting and rhetoric that incites violence. Thomas says the nature of the protest depends on the message protestors want to send.
“Our constitution protects peaceful protests,” says Thomas. “But... when you’re carrying assault style weapons that are quite visible and you have your hand over them, that’s a different message than locking arms and singing spiritual song… When you do that, you’re sending messages of threats, you’re sending messages of intimidation.”