Senate Bill 106 Is Legislative Tyranny in Action

Marc Stier |

MEMO – December 15, 2021


To: Members of the General Assembly, editorial board writers, and other interested parties
From: Marc Stier, Director, PA Budget and Policy Center
Re: SB 106


Overview: SB 106 Is Legislative Tyranny in Action

SB 106 was originally a constitutional amendment to change how the lieutenant governor of the state is elected. We supported that amendment and the bill.

However, yesterday SB 106 was amended to include a number of other proposed constitutional amendments. Leaving aside the content of the amendment we object to them being placed into one piece of legislation that does not give the members of the General Assembly the ability to consider these very important proposals one by one.

Even worse, SB 106 now contains four constitutional amendments that threaten to change the Pennsylvania Constitution in ways that do violence to the fundamental principles of American government. They would

  • establish new Voter ID requirements that would potentially disenfranchise tens of thousands of Pennsylvanians.
  • destroy the separation of powers and checks and balances by allowing the General Assembly to reject regulations made by the governor by a bare majority vote, rather than by a two-thirds vote as currently required by the Constitution, and by limiting the effect of executive orders and proclamations to 21 days without approval of the General Assembly. These provisions shift an enormous amount of power from the executive branch to the legislative branch in ways that directly and profoundly upset the design of the Pennsylvania Constitution, which is based on the design of the U.S. Constitution.
  • require that the auditor general conduct an audit of each election. This proposal not only perpetuates the “Big Lie” about the 2020 election but would create a division within the executive branch that could be exploited to overturn the will of the voters in future elections, including the presidential election in 2024.

These destructive proposals and a terrible process that in one day packed them all in a legislative grab bag of constitutional atrocities, has all the hallmarks of the legislative tyranny that the founders consistently warned against in the Federalist Papers. It is driven not by calm reason but by passionate, unreasoned, and dishonest objections to both the outcome of the 2020 election and to Governor Wolf’s regulations and executive orders that saved tens of thousands of lives.

And these destructive amendments are being put forward by a majority party in the current General Assembly that has absolutely no moral authority to claim that it better represents the people of the state than a governor who was twice elected by all Pennsylvanians. For two decades, the majority party has been elected under highly gerrymandered districts that it has drawn to keep itself in power—even against the will of the people.

If the amendments in SB 106 are ever added to the Pennsylvania Constitution we will look back at the day it passed the House of Representatives as the day that representative democracy began to die in our commonwealth.

The Voter ID amendment is both restrictive and troublingly vague.

The amendment requires voters to present a “valid government-issued identification” to vote in person and “proof of a valid government-issued identification” to vote as an absentee or by mail.

The lack of clarity in these provisions would inevitably lead to protracted litigation and chaos at polling places. To begin with, it is unclear what “valid” means in this context. If a voter shows up at the polling place with a driver’s license that expired a week before Election Day, will they be permitted to cast a ballot? If a voter shows up at the polls with an ID that shows their old address will they be permitted to vote?

It is also unclear what counts as “government-issued identification.” Will cards for public benefits be considered government-issued identification? Will student IDs issued by public universities be considered government-issued identification? Is a social security card considered government-issued identification? Will a letter addressed to a voter from a government entity be considered government-issued identification?

The Limitation of the Governor’s Veto Power and Executive Order Amendments — an Attack on the Fundamental Principles of American Government

We discuss these two amendments together because they raise the same profound constitutional issues. Indeed, it is hard to think of any constitutional proposals that so directly and radically break with the wisdom of those who created the Constitution of the United States, whose work inspired the constitutions of our fifty states. While the constitution of every state is somewhat unique, every one of them enshrines the principle of the separation of powers and the checks and balances in the institutions of government they create. These amendments directly attack those principles.

The separation of powers doctrine requires that each branch of government—in Pennsylvania, the governor, the General Assembly, and the courts—be delegated one of the three main powers of government: executive, legislative, and judicial. The checks and balances doctrine gives each branch of government a share in the power delegated to the other two branches so that it can provide a check on decisions by the other branches and intrusions on the separation of powers itself.

Central to the executive power is the responsibility to issue or to implement executive orders and regulations as allowed by the laws passed by the General Assembly and signed by the governor. Indeed, the very term “executive power” tells us that the governor is granted the authority to execute and implement the laws of the Commonwealth by issuing orders and regulations.

However, in keeping with checks and balances, the regulatory review process in Pennsylvania has given the General Assembly—as well as the Independent Regulatory Review Commission (IRRC) and the attorney general—the ability to provide some check on actions taken by the governor or his subordinates. After the mandatory procedures for public comment are followed and the IRRC gives a final review of the regulation it may be disapproved by the committees in the House and Senate and then by the full House and Senate through a concurrent resolution. If both the House and Senate pass the concurrent resolution, the governor can then veto it. And then under the Pennsylvania Constitution, the House and Senate can override the governor’s veto by a two-thirds vote of each legislative body.

One of the constitutional amendments would let the General Assembly override any regulation proposed by the governor or the administration with just a bare majority of votes in the House and Senate. (It would allow the legislature to disapprove of regulation through a concurrent resolution that would no longer require the governor’s approval.)

The second of these constitutional amendments would limit the effect of an executive order or proclamation by the governor or an executive agency to 21 days unless extended “in whole or part” by concurrent resolution of the General Assembly.

These proposals are a direct and blatant attack on the principle that the governor has the primary responsibility for carrying out the executive power and thus on one of the fundamental principles that have animated American constitutions since 1789. Regulations, executive orders, and proclamations issued by the governor or executive agencies are not the exercise of some monarchical prerogative power outside the law. Rather, they are actions of the branch of government that is given the power to act by the laws passed by the General Assembly. Once it gives the governor the power to issue executive orders, proclamations, and regulations under the law, the General Assembly can have only minimal authority to review what the governor has done with that lawful power without overstepping its bounds. Some check on the actions taken by the governor is justifiable, provided that this review is limited such as by requiring a two-thirds majority in each house of the General Assembly. But if the General Assembly arrogates to itself the right to review and reject every exercise of executive power by simple majority vote, it has overstepped its bounds and become the holder of both the legislative and executive powers. And that is a clear violation of the fundamental principles of the separation of powers.

There are some very good reasons for giving the governor the largest share of the executive power. To be fair, regulations must apply to everyone. To be effective, regulations must be made consistent with one another. To be efficient, they must look to the long-term benefit of the Commonwealth. To be sensible, they must be based on technical expertise. The governor—as the official who is elected by every Pennsylvanian and tasked with both carrying out the laws passed by the General Assembly and proposing new laws— is the one who is most likely to focus on the good of every region of the state, who is ultimately responsible for ensuring that laws are implemented consistently across all areas of public policy, and who is focused on the long-term good of the state as a whole, relying on the technical expertise of his subordinates in formulating regulations. Legislators, by design, focus first on their district and then on the good of the state as a whole.

It is appropriate that an overwhelming majority of both the House and Senate can override regulations, executive orders, or proclamations. That is only likely to happen when the governor or his appointees have made an egregious error or have badly misread the sentiments of the state.

To give the General Assembly—a body, that like all legislatures, is often fractured by divisions, motivated by short-term political passion, and often inconstant and short-sighted in its actions—the ability to reject regulations by majority vote is another thing entirely. It creates the temptation for a legislative body to act in ways that undermine the long-term good of our state.

In attacking the separation of powers, these proposed constitutional amendments reject a central insight of the country’s founders: legislators, as well as executives, can act badly. The proposal re-enacts the history that led to the adoption of the separation of powers by the Founding Fathers, which they designed to ensure that the legislative excesses of the Pennsylvania General Assembly in the 1790s would not carry over to a national government. They recognized that as a legislative body, the General Assembly is always likely to be the strongest branch of government and the one most tempted to overstep its bounds because it controls the government’s purse strings and writes laws that only the governor can execute and the Supreme Court can interpret. That is why the Founders adopted a form of government with both the separation of powers and the checks and balances and then created a strong presidency and Supreme Court to check the Congress. The Constitution of Pennsylvania was later revised to adopt the same model.

The justification offered by Speaker Cutler for these amendments is a tendentious and uninformed reading of that history. He rails against so-called “abuses” of executive power in Pennsylvania as if he were complaining about the actions of an unelected monarch. But whoever is governor is elected by all the people of the state. And because a significantly greater number of Pennsylvanians vote in gubernatorial elections than legislative ones, the governor has a far more legitimate claim to represent the people of Pennsylvania than members of the General Assembly. These legislators are elected in small districts in elections where turnout is low and in which local issues and the power of incumbency tend to be more important than a thorough consideration of statewide issues.

Moreover, the majority party in the current General Assembly has absolutely no moral authority to claim that it better represents the people of the state than the governor. For two decades it has been elected under highly gerrymandered districts that it’s drawn to keep itself in power—even against the will of the people.

That the legislative majority in the current General Assembly does not, in fact, represent the will of the people is supported by opinion polls that have consistently shown that a majority of Pennsylvanians support actions taken by Governor Wolf—such as temporary business closures and mask mandates—made to protect state residents and visitors from COVID-19. When Republicans say that the General Assembly is standing up to a governor whose actions are rejected by the people of Pennsylvania, they are mistaken. Those actions may be rejected by the extremists who vote in Republican primaries in the gerrymandered legislative districts of Pennsylvania. But that minority does not speak for the state as a whole.

Constitutional amendments should not be proposed without serious consideration of the principles that undergird our government or the long-term negative consequences of the amendment. (And it’s hard to believe that a political party that hopes to win a future gubernatorial election in this state would propose such a radical restriction of the governor’s power.) That the General Assembly would even consider an amendment that breaks so thoroughly with our constitutional principles, traditions, and good sense reinforces the Founders’ wisdom in anticipating that legislatures would act rashly in response to strong passions within the public or demagoguery in their own ranks.

That the speaker of the House of Representatives puts forward a proposal that so radically breaks with our constitutional provision shows exactly why the proposal should be rejected.

The Audit Amendment

A final amendment in SB 106 requires that the auditor general conduct an audit of each election. This perpetuates the “Big Lie” that the 2020 election was not conducted fairly and that the result is illegitimate. In addition, it creates the potential to create a division within the executive branch that could be exploited to overturn the will of the voters in future elections, including the election of the president in 2024.

This amendment is especially troubling when one remembers that:

  • more than 60 members—including leadership—called on our congressional delegation to object to the seating of our state’s presidential electors;
  • some members of this legislature even aided the criminals attempting to commit a failed insurrection at our nation’s capital on January 6th; and
  • the sham review taking place called for by Senate Republicans  continues to erode trust in our democratic system of government.

Imagine what would have happened if a Republican auditor in 2020 had listened to Donald Trump’s entreaties and began a fraudulent audit that added to the voice of the members of the General Assembly, who raised dishonest objections to the election result and even went so far as to ask Congress to reject the votes of the electors chosen by the people of Pennsylvania. Those  General Assembly members’ claims were widely derided not only because they offered no evidence but because they had been rejected by both federal and state courts. If, however, they could waive a fraudulent report from the auditor general, their claims might have had greater force and could have helped create what, in effect, would be a coup that left Donald Trump in the presidency

The Practice of Using Constitutional Amendments to Attain Legislative Goals

Finally we want to point out that many of the proposals in SB 106  should be offered as legislation, not as constitutional amendments. A constitution is a sacred document that sets the framework for a regime by setting out the fundamental rights of the people and the institutions and structure of a government. It addresses basic issues about which our ideas generally change slowly over time and as a result of long experience. That is why the process of amending constitutions is often so difficult, as it is in Pennsylvania. Constitutional changes should not be made in response to transient concerns of the moment. They should not be made lightly or to deal with an immediate and transient problem. And they should not be made on policy questions where there is a great deal of disagreement and some likelihood that the voters or their representatives may change their minds in response to new experiences under rapidly changing circumstances.

In Pennsylvania, as in many other states, the manner of conducting our election is a matter of serious concern, and there have been many changes here and elsewhere in recent years in response to new social circumstances, new technology, and, of course, the COVID-19 pandemic. There are intense passions about the 2020 election, generated by former president Donald Trump’s false claims and many of his supporters, that this presidential election was somehow illegitimate even though courts dismissed more than 50 lawsuits of alleged electoral fraud and irregularities presented by Trump and allies.

It would be utterly irresponsible to make rash changes in our constitution in response to the passions created by these falsehoods. And even if that were not the context in which this and other amendments are being put forward, we are all reevaluating recent elections from many perspectives and are likely to learn more about alternatives and best practices in the next few elections. Thus, this is the worst possible time to be enshrining policy choices in our constitution on which voters and their representatives may soon come to different conclusions.

We should also be wary of using constitutional amendments to skirt the current structure of government and the separation of power and checks and balance built into it. That the General Assembly and the governor cannot reach an agreement does not mean that either should try to bypass the other’s constitutional responsibility in the policy-making process. At times, we have challenged governors and presidents when they sought to inflate their executive power to avoid the need for legislation to attain some public purpose. We are equally concerned about the practice of the General Assembly seeking to legislate through constitutional amendments to avoid the governor’s veto pen.

There are potential areas of agreement between the governor and the General Assembly on many of the issues that are the subject of the proposed constitutional amendments. The attempt to skirt the legislative process is not only wrong in itself but it is also discouraging the General Assembly from finding common ground with the governor.