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Most of us probably don’t spend a lot of time thinking about how the state pays for roads. But in 2011, it was the subject of a bitter standoff between the Legislature and Gov. Gary Herbert, one that proved to be a major inflection point in the balance of power at the Capitol.
Utah lawmakers wanted more money for building and maintaining roads, so they set aside a portion of the state sales tax directly to that end. Herbert thought earmarks were bad budget policy. If legislators want to spend money on roads rather than social services or employee pay raises, they should vote to do that.
Herbert vetoed the bill and legislators convened a special session and voted to override his veto — just the third time in 20 years it had happened.
Enjoying the rush of power, they did it again. Next, they voted to override Herbert’s veto of a bill to get rid of the state’s four-day workweek, because they could.
It wasn’t immediately apparent, but the Legislature had evolved. Gone were the days when they were there to fall in line with the governor’s agenda and rubber-stamp his budget.
Rapid turnover of members, weak leaders and intraparty factions that had limited leadership’s power gave way to a new body — more unified, more assertive and largely unbound by the normal checks on government.
In short, the Legislature has created its own vortex of political might.
As it begins its 2022 session, the Legislature is more powerful than at any point in Utah history — putting them in near-complete control over everything from which taxes get cut to how the state responds to COVID-19 all the way down to whether you can be required to have a lawn in front of your house.
They have become the colossus of Capitol Hill.
The ‘weakling’ in state government
It has been an evolution decades in the making, says Rod Decker, who covered Utah government for 50 years and recently wrote “Utah Politics: The Elephant in the Room.”
“The Legislature used to be the weakling in state government. They didn’t amount to much before 1947. They’d meet for 60 days every other year and then they vanished.”
In the ensuing decades, the Legislature hired its own attorney, expanded the length of legislative sessions, began doing work in interim meetings between sessions, beefed up its budget staffing and started to exercise more oversight over executive agencies.
And lawmakers began serving longer, Decker said, giving them an institutional knowledge that translated into policy bravado in relation to their work with Utah’s governor.
“They think, we’ve been around a lot longer than this new guy. We understand state government as well as anybody, especially the governor,” he said. “So where it used to be the governor was professional and they were amateurs, where [the governor] had staff and they didn’t, now they have a staff, they last longer and they have a higher opinion of their own opinion.”
In 1994, after churning through five speakers in 10 years, Rep. Mel Brown was chosen to lead the body, based on a promise that he would serve two terms and strengthen the House’s hand when it came to dealing with then-Gov. Mike Leavitt.
Brown’s tenure ushered in a new age of strong speakers — Greg Curtis, Dave Clark, Becky Lockhart, Greg Hughes and now Brad Wilson. When paired with comparably strong leaders in the Senate, they have unified their caucuses and presided over a quarter-century expanded of power, often at the expense of governors who stood in the way.
Bite by bite: eating the governor’s power
This new, stronger, more professional and more assertive Legislature has, over time, revamped critical parts of the legislative process, significantly weakening the governor’s leverage.
Gov. Olene Walker’s top priority for the 2004 session was $30 million for her beloved early childhood reading program. When the Legislature refused to fund it, Walker threatened to veto the entire state budget, crashing an entire session of budget work.
The Legislature caved, scraping together the money Walker wanted, but it learned a lesson.
From then on, the Legislature would pass a base budget in the first week of the session, enough to fund state offices at the existing levels. If a future governor wanted to threaten a veto at the end of the session, so be it. The state would continue to function. Walker played hardball and won, but lawmakers ensured they couldn’t be held hostage again.
The other major structural change came after another showdown with Herbert — this one over the method for filling the U.S. House seat vacated by Rep. Jason Chaffetz in 2017. The law, at the time, was vague, but rather than calling the Legislature into a special session to clarify the process, Herbert took it on himself to lay out the special election to replace Chaffetz.
Legislators were furious and threatened to sue the governor. They didn’t follow through with the lawsuit, but they did approve a constitutional amendment — later ratified by voters — allowing them to call themselves into special session in case of an emergency without the input of the governor.
“I didn’t think we should have that power,” former Sen. Lyle Hillyard, who served for four decades in the Legislature, told me last week.. “As legislators we should come in, do our work and go home. … I think it was a dangerous thing to do and I think it gives the legislature — even if they don’t call themselves into special session, it gives them the threat. It gives them the leverage.”
Having removed the budgetary nuclear option and, more importantly, being able to convene a special session without the governor’s blessing, gives lawmakers broad discretion to act on their priorities, without having to kowtow to the state’s chief executive.
The one-party state
Utah Democrats were euphoric. They had pulled off an improbable victory in Utah House elections, flipping 18 seats to control the chamber and, by a whisker-thin margin, turned enough seats to take a one-seat majority in the Utah Senate — in addition to having Democrat Cal Rampton as governor.
That was 1974, in the aftermath of the Watergate scandal and, if Democrats knew then what they know now, they might have bottled that spirit.
Control would be short-lived. Republicans took back the House two years later and in 1978 regained control of the Senate. By 1984, when Ronald Reagan and Republicans made massive gains across the country, Utah Democrats found themselves in the political wilderness.
That’s not to say they haven’t ever mattered. Frank Pignanelli was elected to the Legislature in 1986 and at the time Democrats were chipping away at the Republican dominance — certainly not a majority, but enough that they could deliver a bloc of votes to Bangerter in those instances where he found himself at odds with the Republican Legislature.
Since then, however, the Democrats’ numbers in the body have been whittled away. The party currently holds just 17 of the 75 House seats and six of the 29 Senate seats — too few to be a meaningful check on the Republican majority. Today’s governors don’t have another side to turn to when they can’t get enough votes from the GOP.
It’s not just that the numbers of Democrats have waned.
Brown, the BYU political scientist, has been tracking “ideology scores” of the Legislature since 2007 and a clear trend has developed. In 2007, most of the lawmakers landed in the middle third of the rankings. Over time, there were fewer in the middle and more clustered to the edges, indicating that the body is more homogenous. A unified caucus is easier to keep in line, strengthening the voice of legislative leadership.
“Given the way one-party dominance works in Utah it is strengthening the Legislature, because it is leading to a coherent leadership that can speak for an entire party,” Brown said.
It’s not just the absence of an opposing party, but the extent to which leaders can keep their caucus marching in lockstep that adds power to their voice and gives them the ability to set and execute an agenda with impunity.
The national landscape
Utah is not alone in having one-party dominance.
After the 2018 election, the same party controlled both chambers in every state except Minnesota, the first time that happened since 1914 (Nebraska’s Legislature is nonpartisan), and the same holds true today, according to data from the National Conference of State Legislatures.
As a result, the minority parties are frequently left grappling for ways to assert whatever power they can.
“[Democrats] put up some smoke and mirrors to put up the appearance of including us … [but] because we’re in the minority, they don’t need our votes,” Oregon House Minority Leader Vikki Breese-Iverson said in an interview.
In 2020, Republican lawmakers in Oregon boycotted a vote on contentious cap-and-trade legislation. Last year they did the same thing in an attempt to block COVID-19 policies and to fight new redistricting. And to slow the process down, they refused to waive a rule requiring every bill to be read aloud before it’s voted on. Democratic leaders had computers reading bills 12 hours a day to meet the requirement.
“If the process includes not showing up to take a vote, if the process includes slowing down the amount you can get through a floor session … they’re all tools that are there for us to use to try to slow down and try to make sure we’re at least trying to force some conversations in the middle,” Breese-Iverson said.
In Colorado, computers were used to speed-read bills until the Supreme Court ruled it didn’t meet the reading requirement. And last summer, Texas Democrats left the state in an attempt to kill a package of bills they said would make it harder to vote. Warrants were issued for their arrest and the deadlock was only broken after three lawmakers returned, enough to constitute a quorum and pass the bills.
Power to the people?
“All political power is inherent in the people.”
That bold, definitive declaration in Article I, Section 2 of the Utah Constitution suggests ultimately accountability to the citizens will be a check on legislative power. And for a time they were.
Over the course of the past three decades, voters have tried more than 20 times to gather signatures and push a measure onto the ballot. More often than not the measures failed, but not always.
In 1976 there was a successful initiative to prohibit the mandatory fluoridation of drinking water. In the mid-1980s and early 1990s, tax protesters, led by Merrill Cook, repeatedly managed to get initiatives on the ballot to cut various taxes — failing each time they managed to get the issue before voters. An initiative to legalize betting on horse racing in 1992 and a term limits initiative in 1994 also failed.
But to stem the tide of meddlesome voter initiatives, the Legislature changed the process in 1998, requiring proponents to collect signatures proportionately across the state, making it considerably harder to get an initiative on the ballot. But not impossible.
In the 2007 session, the Legislature passed a sweeping school voucher bill despised by the Utah Education Association. The union quickly gathered enough signatures to put the repeal measure on the ballot that year, and 62% of Utahns voted that year to repeal the program.
Facing a pair of voter initiative pushes in 2010, lawmakers set up yet another obstacle, giving opponents to initiative drives an opportunity to convince petition signers to remove their name. Both of the initiatives that year fell short of the ballot.
Despite the new rules, three citizen initiatives passed in 2018 — legalizing medical marijuana, expanding Medicaid coverage for low-income Utahns and creating an independent redistricting commission.
Even then, the Legislature flexed its muscle to rewrite all three measures and, in the case of the redistricting commission, the Legislature adopted its own maps, ignoring the commission’s work.
Cox, in signing the maps into law, said he had concerns about the process, but declined to use his veto, saying it was up to voters to hold their elected officials accountable when they’re up for reelection.
That is easier said than done.
Consider this: Since the political boundaries were redrawn in 2011, there have been 448 state legislative races — 375 House seats and 73 Senate seats. Just 25 of those House contests were decided by a margin of 5% or less (six came in the 2020 election). Not a single Senate seat has fallen within that margin.
Put another way, nearly 95% of legislative races — Republican and Democrat — are safe seats. No peril of losing means no real measure of accountability for legislators at the ballot box.
From hydroxychloroquine to zoning
From micromanaging cities to dictating school curriculum, the areas where the Legislature has asserted its authority are almost limitless.
Early in the pandemic, Herbert issued orders on masks and limiting crowd sizes. Upset, the Legislature passed legislation ending mask mandates in April and significantly restricting the governor’s emergency powers forever.
“We exercised those [powers] in 2020 when we had to do some immediate things and it worked well,” Herbert said in an interview. “But the longer it went on there were those who said, ‘He’s got too much power and we need to trim his wings and take power back to the legislative body.”
“There are those kinds of conflicts and those kind of lines that get blurred a little bit. I don’t think it’s new,” he said.
Ignoring input from state health officials, legislators freelanced their own COVID policies. Senate President Stuart Adams pushed hydroxychloroquine (which is ineffective) and advocated for monoclonal antibodies (which are effective but in short supply). They mandated that schools be open for in-person classes and Speaker Wilson threatened to punish Salt Lake City teachers if they didn’t comply. Further, lawmakers have prohibited employers from requiring employees to be vaccinated and are poised to bar businesses from doing the same for patrons.
But this is just one example where the Legislature has exercised its expansive power.
In 2018, the Legislature created the Inland Port, spanning nearly a third of Salt Lake City’s land area, despite the fierce opposition from the city, claiming for the state any tax revenue the port might generate, in the process.
The port plan was patterned loosely on earlier development authorities that supplant local governments with boards created by the Legislature. The first was established near Hill Air Force Base and now include developments like a ski resort and sprawling hotel near Jordanelle Reservoir.
At the local level, the Legislature has told cities in recent years how to regulate mother-in-law apartments, imposed restrictions on enforcement of outlaw AirBNBs, and required local governments to permit 5G towers in certain areas — among a litany of others.
“Over the last 20 years, we have seen more and more legislation that interferes with the traditional role of local governments in a variety of categories,” said Cameron Diehl, executive director of the Utah League of Cities and Towns. “We’re seeing big growth-related challenges that really do require state and local leaders to work together, so the trick is to find the appropriate balance … to find solutions to these big problems.”
The seat of all power
As the Legislature opens its 2022 session, it gathers as a body that has gone from a backwater of amateurs to a behemoth.
Herbert sees this shifting power dynamic as inherent in our system of government.
“It’s healthy and it’s just the nature of the beast that we have this tug-o-war about who’s in charge. … Some of that tension is just naturally born into that desire to run and execute our offices as we see fit,” he said. “I don’t think it’s new. I think the pendulum swings back forth.”
For years, though that pendulum has been swinging primarily, if not exclusively, in one direction.
Perhaps Cox will provide a counter, but to do so, he will likely have to use his veto power — which has been exercised less and less in recent years.
Going back to 1998, Gov. Leavitt and his successor, Gov. Walker, used the power most frequently, nixing about 17 out of every 1,000 bills that reach their desk. Herbert vetoed 5.5 of every 1,000 bills.
“I’m not here to brag, like some governors around that country do, that I’ve vetoed 50 bills,” Herbert said. “I’m here to get good policy.”
Cox, promised in his first State of the State address to veto more bills than his predecessors, calling it “part of the gloriously messy and inspired process,” but ended up rejecting four of the 502 pieces of legislation that made it to his desk, declining to veto the bill stripping him of pandemic power and the controversial legislative maps he said gave him concern.
Adam Brown, a political science professor at Brigham Young University, said that to maintain a balance of power, one side has to be willing to keep the other in check, even if it means using the blunt instrument of the veto.
“The Legislature is stronger when the governor either supports more of what they do or chooses not to engage in the battles with them,” Brown said.
State Sen. Curt Bramble, a senator since 2001, questioned if it’s even taking power if the governor doesn’t bother to push back.
“How can the Legislature be labeled as shifting the balance of power when the tools in the [governor’s] toolbox or the arrows in the quiver aren’t being used?” he asked.
The governor does have other tools at his disposal, among them using the bully pulpit and rallying public support, something Cox has been known to do.
“I have a lot of confidence in Gov. Cox. He speaks his mind a lot more than some of his predecessors have,” said former House Speaker Greg Curtis. “I don’t think you’ll see public fights like vetoes and overrides, but I think as he sits down, he can be pretty forceful with the legislative leadership, if he chooses to.”
This content was originally published here.