This is the fourth of a six-part series on the constitutionality of the state’s “budget guardrails.” Here are Parts One, Two and Three.
The second bedrock rule of legislative procedure violated by the budget guardrails is the “black letter law” that one legislature cannot bind a succeeding legislature. The Connecticut Supreme Court has characterized this rule as “a fundamental principle of majoritarian democracy and legislative sovereignty.”
This “black letter law” of legislative process applies to every Congress, state legislature, and municipal council: one legislature cannot control the exercise of the powers of a succeeding legislature. I label this fundamental tenet “the democracy principle.”
In a November 17, 2015, opinion letter, former Connecticut Attorney General George Jepsen explained (emphasis added):
“Applying these related principles, the Court in Patterson v. Dempsey, 152 Conn. 431 (1965), held that a state statute prohibiting the General Assembly from including general legislation in an appropriations bill did not preclude the later passage of an appropriations bill that included general legislation. The Court emphasized that, as a fundamental principle of the exercise of the legislative power, an earlier legislative enactment cannot bind a subsequent legislature.”
This democracy principle also featured prominently in Attorney General William Tong’s June 7, 2024, opinion letter (emphasis added) to Republican legislative leaders, holding that the General Assembly in 2024 could deviate from pre-2024 budget law because the statutory deviations involved issues not covered by the guardrails.
Calling it a matter of “black letter law,” Tong reiterated that “making and changing laws is the General Assembly’s prerogative under our constitutional system, and a prior legislature’s budgeting process cannot bind this legislature.”
The reason why a current legislature cannot bind a future legislature is based on basic democratic principles and on common sense: Every newly elected legislature possesses the same powers as the previously elected legislature because every election is equal to every other election. A new democratic election places a newly elected legislature on an equal footing with its predecessors and its successors.
In 1995, the Connecticut Supreme Court again declared that this fundamental principle of governance means that “[N]o legislature can impose its will on all future lawmakers by enacting legislation that cannot be altered.”
The purpose of the bond lock
The budget guardrails are constitutionally defective because the bond lock was designed and adopted for the explicit purpose of binding future legislatures. If “imposing its will on all future lawmakers by enacting legislation that cannot be altered” is a prohibited legislative practice, the purpose of the budget guardrails taken as a whole and the bond lock in particular was to impose its restrictions on all future lawmakers.
There is no need to guess about the purpose of the drafters of the bond lock trigger device. They announced their intent during the floor debate when the guardrails were first enacted in 2017. State Sen. John Fonfara, the Senate co-chair of the Finance Committee, said on the Senate floor on October 25, 2017 (emphasis added):
“As has been indicated, there is spending — a spending cap in this package as well as a bonding cap. All of those will be, and here’s the most important point, part of a covenant, a bond covenant, that will bind future Legislatures, bind future Legislatures to adhere to these policies. There will be an option, an opportunity, under extreme circumstances, by a declaration by the Governor and three-fifths of the Legislature to suspend the volatility cap, as an example, but that will — it’s not easy to get the Governor and the three-fifths of the Legislature to do something. So, I believe it will stand the test of time.”
This explicit “binding” purpose of the bond lock covenant was reconfirmed a year later in a November 15, 2018, legal memorandum authored by the law firm of Shipman & Goodwin, the bond counsel for State Treasurer Denise Nappier (emphasis added):
“In other words, while a legislature is generally free to amend or repeal any legislation as it sees fit, requiring that these statutory commitments be made in the form of bond covenants was intended to ensure that the General Assembly could not alter the commitments, once vested, by future legislation.”
Despite making its intentions known, the 2017 General Assembly simply lacked the authority to bind a subsequent legislature from exercising its full constitutional powers to appropriate funds and raise revenues to finance the operations of the state. The 2023 General Assembly likewise exceeded its constitutional authority when it enacted PA 23-1 to bind future legislatures via the bond lock for up to ten additional years.
Will future elections in Connecticut still deliver their democratic promise if a General Assembly elected in 2026 does the same thing the 2017 and 2023 legislatures did– enact a new bond lock requiring legislators elected as far ahead as, say, 2059 to slavishly follow budget limits based on revenue and spending assumptions in guardrails approved in 2027?
The question of the constitutionality of the guardrails is not just an academic exercise about fiscal issues; it speaks to the fundamental legality of the state’s legislative process and to protecting the rule of law in our democratic system of state government.
The 2017 legislative history of the statutory budget guardrails proves indisputably that they were enacted with the intent to bind future legislatures.
Tomorrow: Whether the bond lock is a legal and effective “binding” device.
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.