Yesterday there was a pretty significant uproar among watchers of the Louisiana legislature over the Senate passage of SB 29, the bill by Senate President Page Cortez which actually makes things worse, rather than better, with respect to the outsize powers given to the governor during a public health emergency.
In case you’ve missed our previous discussions about this bill, essentially what it does is to give the governor 30 days after declaring a public health emergency to act as a dictator, and then after those 30 days are up he has to consult with a committee of 10 legislators drawn from the House Speaker and Senate President and their favorites – the President and Speaker, their pro-tem seconds, the chairs of the Health and Welfare Committees in both houses, the appropriations chairs in both houses and a House and Senate member picked by the Speaker and President, respectively.
That committee the governor has to consult with has no power to end the governor’s emergency decree. As one legislator said, “it’s a seat at the table, but it’s the kiddie table.”
That part of the bill is unsatisfactory really only because it’s a waste of effort, not that the committee in and of itself does damage. Edwards says he hates it because it would create emergency management by committee – but we’ll get to more of that in a minute.
What’s worst about the bill is that while current law allows for an emergency to be halted by a petition of a majority in either house, SB 29 requires that petition to have a majority in both houses.
The thing to recognize is that the mandates and restrictions Edwards has imposed per his declaration of an emergency are not the normal course of business or governance. In any other respect but an emergency those are patently, grossly and abysmally unconstitutional. They are extraordinary, draconian measures. And for them to be acceptable in a free society at all there had better be a full-on threat to the lives and health of the population to justify them.
We would argue that COVID-19 never rose to that level of threat and we would wholeheartedly agree with Attorney General Jeff Landry’s assessment that Edwards’ lockdown was unconstitutional even within the realm of his declared emergency. That said, if we’re to agree that those measures would be necessary during a public health emergency then it should go almost without saying that the emergency in question had better be agreed on by all three bodies of elected policymakers. You’d better have not only the governor but a majority of both the Senate AND the House in agreement that conditions on the ground justify those measures, and if you don’t have all three it is only proper that one of the two houses of the legislature could dissolve it through a petition registering dissent.
The mentality which holds that the Senate shouldn’t have to be bound by the whims of the House where a petition reopening the state is concerned is therefore wholly misguided. This isn’t about whether the legislature has to be in full agreement to act – that isn’t what’s important. What’s important is the rights of the citizenry, and if there isn’t full agreement on the necessity to infringe on those rights then there damned well ought not be the power to do so.
So SB 29 is a terrible, terrible bill.
And yet it passed on the floor of the Senate yesterday with – get this – a unanimous vote.
Even Karen Carter Peterson, the zany and bizarre New Orleans Democrat who until recently was the chair of the Louisiana Democrat Party, got up and spoke for the bill. Remember, this is the bill John Bel Edwards said was lousy because it put the state’s emergency management in the hands of a committee and that’s no way to run things.
For Peterson and all the Democrats to get on board with that bill is not some repudiation of John Bel Edwards. If Edwards asked them to vote no, they would have voted no.
Edwards wants this bill. He wants it because it gives him more power in cases of emergency, not less. The bill makes it all but impossible to rescind a governor’s emergency declaration. He might have put out there that he doesn’t like the bill, but he would consider it a miracle if this was the bill that made it to his desk during the current special session.
So why didn’t the Senate’s conservatives stand up and stop the bill?
We talked to a couple of them yesterday after the vote. What they told us was they voted to move the bill so there would be an instrument moving through the process in time for it to pass and go to Edwards’ desk well in advance of 10 days before the end of the legislative session on Oct. 27. Why does that matter? Because 10 days is Edwards’ timeline to either sign or veto a bill that goes to his desk. And if he vetoes the bill and the legislature is still in session, they can take up a vote for an override.
So something has to go to his desk by Oct. 17, or maybe a little before then.
We were told that most of those senators don’t really care about the substance of the bill at this point because they expect the House to amend SB 29 to make it a lot tougher, and they expect to be perfectly willing to support the bill in its amended form when it comes back from the House.
So what’s going to happen in the House?
Well, as this is being written SB 29 is being heard in the House & Governmental Affairs Committee. It’s been amended to eliminate a requirement that the Chief Justice of the Supreme Court be brought into the deliberations, along with a few minor others.
It’s expected that HGA will pass the bill out onto the floor, likely with no other serious amendments.
And then the bill will go to the House floor either tomorrow or Monday. Any real amendments to the bill will then have to come on the House floor.
We’re told those amendments will happen, and that Cortez’ bill will likely be amended to look a bit more like Rep. Mark Wright’s HB 4, which sets up a 30-day period for a declared public health emergency, after which the legislature must consent for it to continue. Wright’s bill passed out of HGA onto the floor earlier today, which brought exultations from some on the conservative side. The Pelican Institute’s Daniel Erspamer, for example…
“Balancing executive power in Louisiana’s emergency declarations process has become one of the most consequential issues facing our state over the last several months. Under current law, Louisiana’s emergency powers lack the important checks and balances that are the bedrock of our American system and exist throughout all other levels of government. We must remember that emergency powers, particularly during a pandemic like the one we currently face, have an impact on the lives, livelihoods, and freedoms of our fellow citizens.
“It is encouraging to see our legislature working to foster a system that favors collaboration with other elected officials over unilateral power. By adding these much-needed checks and balances to Louisiana’s emergency powers, we can be more responsive to the needs of the individuals, entrepreneurs, and families across our state.”
But in the event the House actually does put teeth into SB 29 and passes a further amended version, the question is whether the House version of the bill can pass in the Senate.
It probably can. But even with the amendments that have already been brought this bill is going to a conference committee. And given that on the Senate side, the conferees would include Cortez and bill co-author Patrick McMath, along with Democrat Gary Smith as the committee chair of Senate Jucidiary B, where the bill came from, it’s very likely that the current posture of the bill would be what came out of the conference report.
That’s what’s so concerning, and why it looks increasingly like this special session will produce absolutely nothing to reopen Louisiana in the short term. And without a reopening this session is nothing but Failure Theater, as it’s appeared to be to date.