On September 20, the Kentucky Supreme Court heard oral arguments in a potential landmark case that could determine how the General Assembly conducts its business.
Depending on its ruling, the state’s highest court could cast aside well-established procedures our legislature, under both Democrat and Republican control, have used for decades. Some observers fear this decision could disrupt the checks and balances between the three branches of our state government.
What’s at stake is whether the Supreme Court can decide for the General Assembly the meaning of “bill’’ and “reading’’ in Section 46 of the Constitution.
Kentucky’s Constitution places the “legislative power’’ in a “House’’ and a “Senate.’’ Additionally, it gives each of these legislative bodies the power to make its own procedural rules. Our Constitution provides broad parameters regarding the introduction of bills and enactment of new laws. Among these are when “bills’’ are filed they must have three “readings’’ before they can be enacted into law.
However, the Constitution does not require additional readings after a bill has been amended, even if the amendments are unrelated to the bill’s original subject. The legislature’s rules clearly state that once a bill is filed it may be amended, and because of this the bill enacted into law may differ considerably from the one originally filed. It is important to note that the constitutions of some states do not allow such procedures, but the Kentucky Constitution contains no such prohibition.
The legislature has for decades utilized an amendment called a “committee substitute’’ to make changes to bills. According to the procedure manual utilized by the Kentucky legislature and forty other states, the language amended into the bill by a “committee substitute’’ is not a new bill, no matter how many changes have been made. This manual informs parliamentarians that it is not necessary to give a substituted bill an additional first and second reading. It also clarifies that any change to a bill title does not require a rereading of the bill a first and second time.
These procedures have been openly utilized by the Kentucky legislature for decades, including during the many years of Democratic Party control in Frankfort. It was through these procedures that important legislation, such as the critical heroin and opioid measure of 2015, was passed. Criticism has only been brought to the forefront recently, most notably through a legal action filed by the Kentucky Attorney General challenging Senate Bill 151 (SB 151). These critiques began after the Republicans became the dominant party of the General Assembly.
SB 151, enacted using the committee substitute processes, is groundbreaking pension reform legislation. Most importantly, this includes a level-dollar funding formula to pay off the state’s $40 billion-plus pension liability over a 30-year period. Kentucky’s pension liability is the worst in the country.
Our Supreme Court has been asked by the Kentucky Attorney General, who is running for governor, to change the way our legislature conducts its business. The Attorney General is demanding that the Court inject its interpretation of “bill” and “reading,” rather than leaving that judgment to the democratically elected members of the General Assembly. These are not questions for the Court; our Constitution left them for the legislative branch to address.
The Court’s decision will determine whether the Commonwealth truly has a separation of powers among its three branches, or whether one branch is “more equal’’ than the other two. The integrity of the Court and parity among our three co-equal branches of government truly hang in the balance.
These high stakes could have a tremendous impact on the state, and consequently the taxpayers of Kentucky. Ruling against the legislature in this case could potentially render void hundreds of statutes passed over the years, including the employer pension contribution relief provided to cities and counties during the 2018 legislative session. Arguably, an adverse ruling could even call into question the Kentucky Education Reform Act (KERA).
KERA, Kentucky’s landmark public education bill, was passed through a series of floor amendments, but not reread three times in each chamber after each substantive amendment. If those acts are void, the ripple effect will be unfathomable.
I hope and trust the Supreme Court rejects the invitation to assert itself into the legislative process, as the Attorney General wants. A better path would be judicial restraint, allowing the Commonwealth to keep intact its sacred, and constitutionally mandated separation of power.
State Senator Joe Bowen, R-Owensboro, represents the 8th District.
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