When Idaho legislators arrived at the Capitol in January to start the 2021 session, many of them were hopping mad at Governor Brad Little for exercising his constitutional power to respond to the pandemic. They were bound and determined to snatch powers from the governor and take those powers unto themselves.
One particular bone in the legislative craw was that Little had called an extraordinary session of the Legislature last August, but did not allow for consideration of things some legislators wanted to address in the session. The Idaho Constitution says only the Governor can call an extraordinary session, the session cannot exceed 20 days and the Legislature cannot consider matters not specified by the governor.
So Jan. 21, the House passed a resolution to amend the State Constitution to authorize the Legislature to call itself into session. Both houses later agreed on SJR 102, which will be on the election ballot next year.
As the legislative session slogged along, somebody came up with a bright idea of how lawmakers could retain the ability to legislate throughout the year — just never adjourn. This may seem like end run around the Idaho Constitution. It most assuredly is.
During the drafting of our Constitution in 1889, the convention delegates decided the Legislature should hold a session every other year. They spoke of sessions lasting 40 to 60 days. There was no drop-dead date, but the Constitution provided pay of $5 per day with a $300 maximum — a 60-day limit. They clearly expected that sessions would last no longer than 60 days.
In 1968, the people changed the Constitution to provide for annual legislative sessions. In recent years, legislative sessions have averaged about 90 days. In the entire history of Idaho, there has never been a serious contention that the Legislature could stay in session the entire year, that is until this year.
On May 12, the House introduced the year-long Legislature, passing House Resolution 4, purporting to go into recess while retaining the ability to reconvene until New Year’s Eve. The pertinent provision of the Constitution says “neither house shall, without the concurrence of the other, adjourn for more than three days.” It does not use the word “recess.” The Senate, rather than going along, decided that same day to adjourn for the year. If the Senate does not change its position in three days, I believe the entire Legislature will be considered, as a matter of law, to have adjourned for the year.
If the Legislature has had the option to stay in session full-time since statehood, why has it never before exercised this extraordinary power? If the Legislature can stay in session as long as it pleases, the governor’s constitutional power to call a special session would be meaningless. If one house of the Legislature can force the other to stay in perpetual session, the proposed constitutional amendment to allow the Legislature to call itself into special session is clearly unneeded and should be voted down next year.
The Legislature is yearning to become a full-time, year-round operation. It spent tens of millions of dollars building super-nice underground quarters in the Capitol several years ago. It wanted to appropriate $2 million more this year to build palatial offices in space it snatched from the State Treasurer. It very much wants to accumulate, consolidate and extend its power, as has been so clearly demonstrated throughout this dysfunctional session, which may be the first of many sessions without end if the House persists with its end run around the Idaho Constitution.
Jones is a former Idaho attorney general and a former Idaho Supreme Court chief justice. His previous columns can be found at JJCommonTater.com