Current and former state legislators and a former Indiana Supreme Court justice are raising concerns that a law to extend rather than adjourn the 2021 session blurs the separation of powers and could have “dangerous” implications for the future.
The Indiana General Assembly passed House Bill 1372 late in the session with little discussion or opposition, extending the legislative session until Nov. 15. The coronavirus pandemic postponed 2020 census results and the change was necessary in order to vote on election redistricting in the fall, proponents say.
Gov. Eric Holcomb said Friday through a spokesperson that he was “reviewing” HB 1372. He signed the bill on Monday, according to his office.
Now some worry the unusual move could set a precedent for a full-time Legislature, and others wonder about lawmakers fundraising while technically still in session, which is typically not allowed.
The measure is already causing a potential problem for Indiana Secretary of State Holli Sullivan, a Republican who on Monday announced her 2022 election campaign. Sullivan is the Indiana Republican Party’s vice chair and was in her seventh year as a state representative from Evansville when Gov. Eric Holcomb appointed her as secretary of state in March to replace Connie Lawson, who resigned with nearly two years left in her elected term.
The Libertarian Party of Indiana almost immediately accused Sullivan of violating Indiana’s election law prohibiting fundraising during a budget session when she announced her campaign and solicited and accepted campaign contributions on Facebook.
The law also creates other potential problems.
Frank Sullivan, former Indiana Supreme Court justice and professor at Indiana University’s Robert H. McKinney School of Law, said by extending the session now, legislators may find themselves not wanting to give their newfound power back later.
“This principle that used to be sacrosanct has been abandoned, at least in the short run,” Sullivan said. “And it will be interesting to see whether the genie can ever be put back in the bottle or the mercury back in the vial.”
Extending the session
The session has never been extended at the Indiana Statehouse, at least as far as Beverly Gard, a Republican former senator of 24 years from Greenfield, knows.
Gard said that when she was in the Senate, members went into special session a couple of times to finish the budget, but she has never seen anything like this.
“I think it’s a pretty scary precedent to start setting,” Gard said. “If things like this continue into the future, it could lead to a full-time Legislature, and that is certainly not in the best interest of the state of Indiana.”
Since the Indiana Constitution states that the length of the legislative session shall be set by law, the extension is not unconstitutional, says Sullivan. HB 1372 states that the current April 29 deadline will still be in place for future long sessions.
In all other aspects, the legislative session will act as though it is adjourning for the year. HB 1372 still requires Holcomb to sign or veto bills by the usual deadline, most new laws will still go into effect July 1, and legislators will switch to their out-of-session pay rates.
The major concern coming from former legislators is that by finding a way to extend the session legally and constitutionally, it sets a precedent for the Legislature to easily do this again in future years.
During a media availability Thursday, House Speaker Todd Huston, R-Fishers, said he and Senate President Pro Tem Rodric Bray, R-Martinsville, wanted to hear the term “sine die” to adjourn the session more than anyone.
“This will not be a historical precedent because we desperately look forward to hearing those two words in the future,” Huston said.
However, others, including former Democratic Indiana House Speaker John Gregg, who ran against Holcomb for governor in 2016, say it will be too tempting to lawmakers not to use again.
Gregg said that by merely recessing rather than adjourning, it’s setting a precedent for lawmakers to call themselves into session whenever they want.
“They are basically, in my opinion, turning themselves into a full-time Legislature, which I don’t think is something most Hoosiers are aware of or probably support, Democrats or Republicans,” Gregg said.
Keeping the governor in check
Current and previous lawmakers are also concerned that the Republicans in the Legislature want the ability to keep the governor, also a Republican, in check when it comes to making executive decisions, like Holcomb has been doing for more than a year during the pandemic.
Holcomb vetoed HB 1123, allowing the Legislature to call itself back into session during an emergency, but the General Assembly overrode his veto earlier this month, ultimately limiting his powers while boosting the Legislature’s. Holcomb said it violates the separation of powers outlined in the Indiana Constitution because the state’s legislative body would be encroaching on the governor’s powers as head of the executive branch.
Sullivan said that while it doesn’t go against the constitution to extend the legislative session, the legislators wanting to call themselves into session is unconstitutional.
“Our constitution sets forth various boundaries between the relative authority of the executive, legislative and judicial branches, and there are some things that each branch can do, and there are other things that they are prohibited from doing,” Sullivan said.
Gregg agrees that the Legislature calling special sessions is unconstitutional and that if the Legislature is “expanding and growing their powers like this,” they’ll want to assume more of the governor’s role, like approving his appointments—weakening the governor’s position.
“It’s a very dangerous, in my opinion, power grab,” Gregg said. “We have a separation of powers, which has worked really well for the last 170 years under our current constitution. And I don’t think it needs to be changed.”
Rep. Ed DeLaney, D-Indianapolis, said he suggested some version of an extended session so they could avoid the “constitutional fight” over whether they can call themselves for a special session to do the redistricting.
He said the extended session is truly about the Republicans’ control over the governor and how the more “extreme” Republicans want to monitor the way he responds to the pandemic and be able to call themselves back into session “if he somehow offends them.”
“I don’t think we enjoy [the governor’s executive] power, and they decided to smooth it over a little by saying it was only for certain kinds of emergencies. So, that’s the constitutional problem.”
Gregg said it’s all Republicans going after the Republican governor, whereas he hasn’t seen any Democrats support this change in power.
“I’m defending Eric Holcomb. He’s the man who defeated me for governor. I’m defending him,” Gregg said. “I’m a Democrat. I’m defending the governor and the process, against his own party.”
When Holcomb’s veto on HB 1123 was being overridden, the Indiana Black Legislative Caucus defended Gov. Holcomb and his powers.
“It’s one thing to want a seat at the table, but another thing entirely to strip the power of an elected official,” Rep. Robin Shackleford, D-Indianapolis, and chair of the IBLC, said. “This bill was born out of a desire for power, and that kind of behavior works against the interest of the people of Indiana.”
Fundraising during session
Legislators fundraising while in session has raised concern as well. HB 1372 says lawmakers can start fundraising again on April 29, instead of on the usual day when the General Assembly adjourns the session. Some question the ethical implications of taking money from interest groups while lawmakers are still technically in session.
Senate Minority Leader Greg Taylor, D-Indianapolis, said he doesn’t think fundraising will be a problem as long as the Legislature sticks to the single legislation it has planned: redistricting.
“I don’t control the agenda. My caucus is not in the majority,” Taylor said. “But I would be very hesitant to do any legislation that had to do with special interest groups at the same time while we’re fundraising from them.”
Taylor said he is “cautiously optimistic” that his Republican colleagues will not bring up other legislation during the extended recess, and if they do, the Democratic Caucus will not stay quiet.
According to an Associated Press article from earlier this month, Bray wouldn’t rule out the possibility of legislators returning for matters unrelated to redistricting, but Huston said that there was almost no chance of that.
“It would take, I’m sure, Sen. Bray and I would both say, extraordinary, extraordinary, extraordinary, extraordinary, extraordinary circumstances for us to come back prior to redistricting, and it is certainly our hope that we just come back for those days, then that is it,” Huston said.
At the media availability Thursday, Bray said the language in the law is based on budget years and fundraising won’t be a problem as long as the budget is done.
“So, the way we changed this language simply says that once the budget is completed, then that restriction is off,” Bray said Thursday. “And obviously, today, we completed that budget. It’s going to the governor’s desk. We fully expect it will be signed. And so that step will be taken, and so it’s like every other year after that.”
Julia Vaughn, policy director of Common Cause Indiana, a grassroots citizens’ lobbying organization, said it’s important that lawmakers do not fundraise during session.
“Just because the budget’s been adopted, I mean, redistricting is an awfully big deal, too,” Vaughn said. “There could be, certainly, incentives by individuals, in particular people who might be wanting to run for office and perhaps get a district that might be very suitable for them to do so and win.”
DeLaney said the language in the bill allowing lawmakers to fundraise during session is a “bow to reality.”
“Legislators like to campaign and raise funds for their campaign,” DeLaney said. “And so, the majority was not going to put itself in a position where they couldn’t raise money.”
Across the nation
States across the country have been seeing their legislatures trying to cut their governors’ powers since the start of the pandemic last March. According to the National Conference of State Legislatures, or NCSL, lawmakers in over 30 states and the U.S. Virgin Islands introduced bills or resolutions in 2020 to limit governors’ powers or executive spending.
The NCSL said the Mississippi Legislature returned to session early in May 2020 to stop GOP Gov. Tate Reeves from spending federal dollars on his own. And Michigan and Wisconsin legislatures successfully sued their governors over their emergency orders.
Only in 14 states is the governor the only one who can call a special session, according to an AP story in February. But like Indiana, other states are trying to change that.
The Idaho Senate approved a constitutional amendment to allow the Legislature to call itself into special session. The AP story said it concerned some Idaho lawmakers that a special session would not be limited in length, which leads to the possibility of lawmakers making themselves into a full-time Legislature.
With HB 1372 and HB 1123 modifying the legislative session’s procedures, big changes may be coming to the Indiana Statehouse. Whether they are for the best depends on who you ask.
Republicans view these changes as a way to keep Gov. Holcomb from abusing his power while also making themselves part of his executive decisions, but Democrats and some former legislators on both sides of the aisle take this as a power grab by GOP members.
“I think [the public] just wants this Legislature to go home,” Gard said.