By Senator Adrienne Southworth Guest columnist
October 17, 2022
The question I have repeatedly gotten this month has been, what about Amendment 1? This year, two constitutional amendments are on your ballot. The lesser known is Constitutional Amendment 1, regarding legislative session dates. I voted no on putting this wording on your ballot, and the more I research, the more solidly I oppose this measure today. Although it appears long, Amendment 1 actually changes only two things: 1) removes the deadline to finish the legislative session, and 2) allows the Senate President and Speaker of the House to call special sessions like the governor currently can. The constitution currently ends the legislative session by March 30 in odd-numbered years and April 15 in even-numbered years. This deadline creates a sense of urgency for important issues, and controls against constant law changes. We all know Congress can pass things in the dark of night on Christmas Eve. In Kentucky that is not possible, YET. Amendment 1 would allow that to change. For example, this year SB 88 was introduced to allow bills to continue through December 31. The popularly cited reason for removing the deadline for the legislature to finish its business is the covid shutdowns. The talking point goes like this: the legislature was not in session and could not do anything to help covid. Let’s rehearse the facts: March 6, 2020, the Governor declared an emergency order, and shut things down entirely around March 16. The legislature was in session until April 15. The legislative schedule lightened, but came back in full force by April 1 to pass covid relief and allow the expanded mail-in election process, among other things. The legislature officially missed seven days total in 2020, was still in session one month after the shutdowns started, and even was running during the Easter Sunday police citations. Were any bills passed to reduce the Governor’s reach at that time? No. The real problem was discussed in the summer of 2020. We passed SB 1 in 2021 to trim the enormous delegations of power we provide the governor. SB 1 was not perfect, but it and the subsequent Supreme Court decision prove that the legislature already has the power to set these emergency boundaries on the governor. Amendment 1 does nothing about the governor’s emergency powers. If the goal was the legislature making decisions in long-standing emergencies instead of the governor, then we could pass more bills about time limits, reasons he can make orders, or what defines an emergency. But we cannot use an outdated example from 2020 to support a constitutional amendment in 2022, because the laws have already changed since. The second part of Amendment 1 duplicates but also expands power. The President of the Senate and Speaker of the House could jointly call special sessions in addition to the governor. Again, this is popularly characterized as a way to address unforeseen emergencies. Oddly, nowhere is “emergency” in Amendment 1. Kentucky used to not have legislative sessions every year. In 2000, we amended the constitution by adding the odd-year 30-day session to consolidate the numerous spontaneous special sessions into one organized time. Since then, we have still had 15 special sessions. Why add more people who can call spontaneous sessions at whim? Promises by office-holders to not abuse extreme power fail to guarantee current or future practice. In fall 2021, when the Governor called for a covid emergency session, someone decided that it was also an emergency to approve over $400 million of funding to jump start mystery battery plants statewide. In 2022, the governor called an emergency session to move funds faster to the eastern Kentucky flood area. Among memorials for those who lost their lives in flood and rescue efforts, some decided it was appropriate to call resolutions celebrating NASA and the moon landing. With zero parameters on a reason to call a special session, it is concerning that leaders of a single branch would have no multi-branch checks and balances inherent in most of our American system. As we saw at Christmastime 2018, a governor can call a session but the legislature adjourn without passing anything. Another talking point I have heard is that most other states already allow this and Kentucky is just behind. The facts disagree. Everyone should recall December 2020, when other states circulated petitions to call special sessions relating to certification of their presidential electors. Why was that? Legislatures were not in session, and their leaders were not able to simply call a session for any reason at any time. Only five states allow leaders to call their own sessions currently: Connecticut, Delaware, Florida, Illinois, and Ohio. At least 32 other states require a petition and two-thirds or three-fourths of legislative member support to call the session. Maine is particularly interesting, which requires percentages of each party from each chamber. The most important thing I do when approving language for your ballot is to ensure that the final wording of any new constitution is going to be constitution-quality for years, decades, and perhaps centuries to come. We must ensure that what the people want the constitution to say is what it actually says. The part-time legislature has been considered ideal. Removing constitutional limits allows concentrated power. One thing most people do not know is that I could be paid every day, all year long, if the president approved it. Of course, I don’t request that, nor does he approve everything, but this is an example of compounding concentrations of power. The same person who can pay unlimited non-session days could also call session days for votes, even without 97% of the other senators’ input. I have also percent observed that once bills are on the agenda and amendments are disallowed, implicit force can make things pass that otherwise do not enjoy the overwhelming consensus we all imagine should emanate from a statewide legislature. The key reason I voted no and will vote no again this November on Amendment 1 is that I do not support power grabs. When the voters only get an up-or-down vote on the entire package, it is too late to iron out problems. The legislature should get this balanced before asking the people to vote. If you were able to vote on the whole legislature calling a session, like most other states, this would be a different article. The three-fourths members petition process is not the same, and sessions do not need to stay open all year if we can be called back in for emergencies that pop up. Amendment 1 has no fancy website. Kentucky’s constitution depends on informing yourself. If you want any clarifications on what I have shared, I am always paying attention to my email Adrienne.Southworth@lrc.ky.gov. As a reminder, vote on November 8!
State Senator Adrienne Southworth
Kentucky State Senator
District 7
Room 253
502-564-8100 ext. 51684