We have created a Constitutional crisis in Kentucky. The Kentucky House of Representatives has adjourned until January 3, unless called into extraordinary session. The Kentucky Senate has adjourned until April 3.
Here's the back story.
Governor Steve Beshear hastily and arrogantly called the General Assembly into Extraordinary Session without agreement between the Senate and the House about how to resolve a $166 million shortfall in the Medicaid budget. That story is covered in the post:
Session's Over, Governor Throws Tantrum
Because of the disagreement, nothing happened in the first five days of the session March 14-18.
On Monday, March 21, the House finally considered HB 1 in Committee and on the House Floor. The House's version differed slightly from the Governor's original request. It borrowed the $166 million from fiscal year 2012 as the governor originally proposed, but it requested him to certify that savings were achieved, and forbid him from cutting education if he failed. This proposal did nothing to reduce the unaffordable baseline, using next year's money to plug this year's hole. Representatives Stan Lee, Jim DeCesare, Joe Fischer and Tom Kerr were the only members of the House to oppose the Governor's proposal.
Today, the Senate replaced this legislation with legislation that required
$101 million in cuts across much of state government. The plans calls for 0.355 percent cuts in the remaining part of the current fiscal year and 1.74 percent in the second year, which begins July 1.
If Beshear can generate $114 million in Medicaid savings, cuts to education would not take place. If those savings could not be documented, then the main funding formula for schools will be cut 0.812 percent and higher education would be cut 1.74 percent. Those cuts would go into effect in January.
The General Assembly would have to vote to rescind the cuts in January if the savings materialized.
The House, unwilling to negotiate, decided to pass the Senate's language and adjourn, allowing the Governor to veto items without the possibility of being overridden. The Senate, however, voted to adjourn until April 6, at which time a veto override can be considered.
Here's why it is a Constitutional Crisis
The General Assembly can not adjourn without the agreement of both Houses. Section 41 of Kentucky's Constitution reads:
Adjournment during session.
Neither House, during the session of the General Assembly, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which it may be sitting.
This passage may pertain specifically to regular sessions, but it does convey the general idea that both houses must agree on adjournment to adjourn.
The section pertaining to special sessions is Section 80 (emphasis added):
Governor may call extraordinary session of General Assembly, adjourn General Assembly.
He may, on extraordinary occasions, convene the General Assembly at the seat of government, or at a different place, if that should have become dangerous from an enemy or from contagious diseases. In case of disagreement between the two Houses with respect to the time of adjournment, he may adjourn them to such time as he shall think proper, not exceeding four months. When he shall convene the General Assembly it shall be by proclamation, stating the subjects to be considered, and no other shall be considered.
In Section 80, the Governor clearly has the power to adjourn the legislature for a period of up to four months in cases of disagreement between the Houses.
Right now, the House of Representatives is adjourned, but the Senate is not. Both sections suggest that the General Assembly is not adjourned because the Houses have not agreed on adjournment. The Governor has the authority to adjourn them temporarily since they do not agree.
Here's why the status of the General Assembly's adjournment is relevant (emphasis added):
Signature of bills by Governor -- Veto -- Passage over veto -- Partial veto.
Every bill which shall have passed the two Houses shall be presented to the Governor. If he approve, he shall sign it; but if not, he shall return it, with his objections, to the House in which it originated, which shall enter the objections in full upon its journal, and proceed to reconsider it. If, after such reconsideration, a majority of all the members elected to that House shall agree to pass the bill, it shall be sent, with the objections, to the other House, by which it shall likewise be considered, and if approved by a majority of all the members elected to that House, it shall be a law; but in such case the votes of both Houses shall be determined by yeas and nays, and the names of the members voting for and against the bill shall be entered upon the journal of each House respectively. If any bill shall not be returned by the Governor within ten days (Sundays excepted) after it shall have been presented to him, it shall be a law in like manner as if he had signed it, unless the General Assembly, by their adjournment, prevent its return, in which case it shall be a law, unless disapproved by him within ten days after the adjournment, in which case his veto message shall be spread upon the register kept by the Secretary of State. The Governor shall have the power to disapprove any part or parts of appropriation bills embracing distinct items, and the part or parts disapproved shall not become a law unless reconsidered and passed, as in case of a bill.
If the General Assembly is in session, a bill becomes law unless the Governor returns the bill "with his objections, to the House in which it originated." If the bill is not returned by the Governor, it shall be law, "unless unless the General Assembly, by their adjournment, prevent its return."
Now, the house of origin for HB1 is the House of Representatives, which has adjourned, thereby preventing the Governor from being able to return his objections to the House. On the other hand, the Senate has not adjourned, preventing the General Assembly from having adjourned, meaning the Governor must submit his objections within ten days.
The premature adjournment of the House has created a paradox which can be most neatly resolved three ways:
1) The Governor uses his authority to adjourn and reconvene the General Assembly, risking the appearance of gaming the system to avoid having his veto overridden; or
2) The Senate caves and adjourns Sine Die on April 6th; or
3) Stumbo returns the House into session and votes on the veto override.
An undisputed part of HB 1 prohibits pay for legislators during the veto period so waiting does not incur additional expense.
Any other resolution is likely to be a lawsuit alleging that the Governor's veto is illegal. I'm not ready to analyze the legal merit of such a lawsuit or what the political ramifications would be for Beshear and Williams.