This is Part Two of a six-part series on the constitutionality of the state’s “budget guardrails.” Here is Part One.
Imagine you have arrived at your seat for the seventh and deciding game of the World Series expecting to enjoy the game being played by the official rules that have governed baseball for the past 100 years.
Instead, the managers announce that both teams unanimously voted before the game to discard the old rule book and agreed to play by new “competition guardrails” because the games played in the past 50 years were too boring for the TV audience.
What are the new rules? The game will last 18 innings. Pitchers have to throw underhanded. Teams will use softballs instead of hardballs. Every batter gets a “supermajority” plate count of 10 strikes and 20 balls. The new rules will be in place for the next ten years unless the players vote to end them after five years.
Best of all, every fan who purchases a seat receives a “ticket lock” that contains a covenant promising the purchaser an opportunity to object to the home plate umpire’s calls of balls and strikes.
Play ball?
The statutory budget guardrails adopted in 2017 and re-adopted in 2023 eviscerated the budget-making process used for decades by the General Assembly in much the same way as our bogus teams propose ripping to shreds the traditional rules of major league baseball.
The legislature did so by requiring that a three-fifths vote of the state House and Senate is needed to revise a budget law instead of the normal majority vote; by enabling a so-called bond covenant to bind future legislatures; by altering the balance between the executive and legislative branches due to the requirement for an emergency declaration from the governor before a waiver is validated; and by purporting to delegate its budget-making legislative power to private bond purchasers via the bond lock.
In the hypothetical game, was any of that radical change in baseball rules approved by the rule-making authority of baseball? No.
Likewise, was any of the radical change in the real-life legislative budget procedure authorized by the rule-making authority of the General Assembly, known as the state constitution? No.
Were either set of rules changes valid? No.
Three elements of Constitutional analysis
The first critical analysis of constitutionality always starts with an examination of the text of the constitution: Is there any provision in the state constitution that either explicitly or by implication authorizes the General Assembly to enact such drastic rule changes by means of the statutory guardrails?
The stark reality is there is no such constitutional clause. The General Assembly has never been authorized to enact these changes as part of the statutory lawmaking process.
A small exception may be a clause in the 1992 constitutional amendment adopting the Spending Cap affecting budget surpluses that requires a three-fifths supermajority vote, but that section plays only a minor role in the guardrails package.
A second critical inquiry should review the legislative history of the adoption of the guardrails to determine whether and how the constitutionality was explained and justified during the floor debates. But a review of the transcript of the October 25, 2017, floor debate in the State Senate and the October 26, 2017, floor debate in the State House reveals that in neither of the debates was the constitutional status of the guardrails even mentioned, much less justified.
The same lack of any mention, reference or justification occurred during the floor debates in the House and Senate in January 2023 during enactment of Public Act 23-1, the guardrail re-adoption statute.
The only passing reference to constitutional issues came at the opening of the House floor debate in 2017 during House Speaker Joe Aresimowicz’s description of the unusual parliamentary situation.
He said:
“Within the budget that we take up today, there is a section regarding the constitutional spending cap — something that was on the ballot in the early ’90s and the voters overwhelmingly approved. Article III, Section 18, Subsection B of the Connecticut Constitution states that the enactment or amendment of such definitions to the spending cap shall require a vote of three-fifths of the members of each House of the General Assembly. What this means is that in order to enact the constitutional spending cap within this budget bill, it must pass by a three-fifths or 91 total members in the House. However, it is important to note that the budget bill itself only requires a simple majority. So please bear that in mind…” [Oct. 26, 2017, Speaker Aresimowicz, emphasis added.]
The speaker’s remarks highlighted the potential for confusion over the constitutional status of the guardrails. In part, this may have arisen from the unconventional make-up of the 2017-18 budget draft legislation. The same bill combined the constitutionally-mandated spending cap definitions requiring a three-fifths vote for approval along with the statutory guardrail “caps” provisions requiring only a majority vote for approval (and not based on any prior constitutional amendment).
Was it proper legislative form to combine both types of votes in one bill? The action was never challenged on the floor of either the House or Senate.
Thus, not all budget “caps” in the 2017 law were created equal. The three Spending Cap definitions had quasi-constitutional status, but the seven statutory caps, including the bond lock, had status only as ordinary statutes. The statutory guardrails were simple statutes and not part of the Spending Cap constitutional amendment.
A third critical inquiry for constitutional review usually examines how other states have interpreted their bond locks. What authority is relied upon in sister states to grant covenants to private bond holders promising that the legislative body will refrain from exercising sovereign state budget powers for up to ten years? The experiences of other states surely should shed light on how best to construe the constitutionality of our bond lock.
But such an inquiry would be fruitless. No other state has used the nuclear trigger of a bond lock-type covenant to bind future legislatures or to delegate state budgeting powers to private bond holders or to impose supermajority vote standards.
The Connecticut package of budget guardrails is unique. There is no precedent for it in our state or in any other state. They are not authorized by the text or the structure of our constitution. When the guardrails were adopted in 2017 and readopted in 2023, there was never any reference to a constitutional justification mentioned during the hours of floor debate in either the Senate or House when the guardrails were adopted or readopted.
In the absence of any direct or implied observable constitutional justification, it becomes necessary in this analysis to “deconstruct” the guardrails from a holistic constitutional perspective by breaking down the unprecedented legislative process into its component parts.
Tomorrow: How the voting procedures mandated by the guardrails violate the state constitution.
Alex Knopp served in the General Assembly from 1987 to 2001 and was Mayor of Norwalk from 2001 until 2005. He co-taught the Legislative Advocacy Clinic at Yale Law School and is a member of the CT Law Tribune Editorial Board. He can be reached at alex.knopp20@gmail.com.