Make no mistake about it, the reconvening of the 2021 legislative session is a test to see whether the Idaho Legislature can get away with meeting throughout the year, without having to amend the Idaho Constitution. The idea of a full-time Legislature has been a twinkle in the eye of some legislators for years.
At the beginning of the 2021 session, Republican leadership recognized that the Legislature could not call itself back into session after it had wrapped up its business for the year. It admitted as much on Jan. 21, when the House approved a resolution calling for an amendment to our Constitution permitting the Legislature to call itself into special session. The Constitution presently allows only the governor to call a special session.
Both houses later passed SJR 102, which, if approved by the voters in next year’s general election, would authorize the Legislature to go into session upon the call of at least 60 percent of the members of both houses. While a special session called by the governor can only last 20 days, the Legislature would put no such limitation upon its own power under SJR 102.
During House debate on SJR 102, Assistant Majority Leader Jason Monks lamented: “If we’re limited to only being able to function within a short period of time throughout the year, I don’t see how you could even argue that we’re equal” to the other branches of government. He should take it up with the drafters of the Idaho Constitution, who specifically designed it that way. In fact, after arguing whether the Legislature should only meet every two or three years, the Constitutional framers decided on every other year, keeping the option open to change it to every third year if two was too often.
However, as the end of this year’s legislative session approached, House Speaker Scott Bedke came up with the clever idea of ignoring the Constitutional framework and setting a precedent for a year-round Legislature. When all of the legislative work had been completed, the House claimed it was taking a “recess’’ instead of “adjourning.” Just a slight change of words was intended to accomplish what the Constitutional framers thought would take an amendment to the Constitution. No need to let the people’s voice be heard on this issue, as it had been in 1968 when the voters approved an amendment establishing annual legislative sessions. Based on this year’s session, that was a big mistake.
Despite some nonbinding language in the initiative lawsuit that the Legislature decisively lost, the Idaho Supreme Court has never decided whether this self-adoring body can turn itself into a full-time Legislature without the approval of Idaho’s voters. The Legislature has never before in its 130-year history pulled off such a brazen power grab, so there has not been occasion for an authoritative ruling. Basic common sense says that the Legislature cannot seize whatever power it wishes merely by switching the words describing an action, as in the House having “recessed” rather than “adjourned.”
The Committee to Protect and Preserve the Idaho Constitution, which successfully challenged the Legislature’s initiative-killing bill, may step in to protect the Constitution against this latest grab for power. If it is merely political theater to posture for votes, legal action may not be necessary. If the result is the passage of actual legislation, it will undoubtedly be on infirm Constitutional ground and subject to court challenge, including the customary award of attorney fees out of legislative coffers.
Legislative leaders seem to be unclear on what the objectives of the fake session are. What gets talked about is taking action in court against federal vaccine mandates. The state is already challenging them in court. There is no indication of urgency to do something that could not wait for the annual session in January. What it ultimately boils down to is the Legislature trying to set a precedent that it can point to as a reason to justify a full-time Legislature into the future. Those of us who revere the Constitution will not allow that to happen.
Jones is a Vietnam combat veteran who served eight years as Idaho Attorney General (1983-1991) and 12 years as Justice of the Idaho Supreme Court (2005-2017). He is currently a regular contributor to The Hill online news. He blogs at JJCommonTater.