This is Part Three of a six-part series on the constitutionality of the state’s Budget guardrails. Here are Parts One and Two.
The first bedrock rule of legislative procedure violated by the budget guardrails is the majority vote rule. It mandates that the normal or default standard for enacting legislation is a majority vote of both Connecticut House and Senate unless a different standard is clearly expressed in the Connecticut Constitution.
In contrast to the majority vote rule, the statutory guardrails are designed to require a three-fifths vote of the state House and Senate (as well as an “emergency” declaration from the governor) to unlock, waive or revise the guardrail restrictions.
Does any constitutional authority exist to require such a supermajority three-fifths vote instead of the default procedure of a majority vote to approve of law-making activity by the General Assembly?
The Connecticut Constitution requires supermajority votes in special enumerated circumstances: overriding a governor’s veto; approval of amendments to the constitution in one session; approval of a redistricting plan; Senate conviction of an executive or judicial officer following an impeachment by the House.
But the Connecticut Constitution does not authorize the General Assembly to deny a majority of the House and Senate the right to amend budget laws– except for the limited circumstance of the constitutional state spending cap.
The legislative power of the state is vested in the General Assembly by article Third of the Connecticut Constitution. “[A]ny bill passed by any regular or special session” must be presented to the governor. It also requires in article Fourth that a legislative override of a gubernatorial veto of a bill requires each house to approve “by at least a two-thirds vote of the members of each house of the general assembly….”
By requiring a supermajority two-thirds vote to override a veto, the Connecticut Constitution by implication requires only a majority vote to pass legislation. This has been the unanimous legal holding of many court cases and attorney general legal opinions. As stated clearly by Attorney General George Jepsen in a November 17, 2015 opinion letter (emphasis added): “…[U]nder our state constitution and democratic system of government, absent a specific constitutional provision to the contrary, the power to pass legislation is exercised by a simple majority vote.”
The majority vote rule is also enshrined in Mason’s Legislative Manual, which is adopted each year as part of the session rules by both the House and Senate. According to Mason’s Sec. 512(6): “A deliberative body, whether a state legislature, city council, or administrative board, cannot by its own act or rule require two-thirds vote to take any action where the constitution or controlling authority requires only a majority vote.”
This universal rule means that even if the legislature were to pass a guardrail bill that on its face requires a three-fifths vote for passage of a budget “waiver,” nonetheless under Mason’s Sec. 512(8), “[a]n action requiring a [three-fifths] vote for passage can be repealed by a majority vote…”
The guardrails require supermajority votes
In violation of the majority vote rule, the budget guardrail statutes are riddled with supermajority three-fifths vote requirements. Based on summaries provided by the Office of Legislative Research:
- The “revenue cap” prohibits the legislature from authorizing General Fund and Special Transportation Fund appropriations in any fiscal year that exceed 98.75% of the estimated revenues “unless…three-fifths of the members of each house vote to exceed the percentage…”
- The “volatility cap” requires the state treasurer to transfer to the Rainy Day Fund certain revenues in excess of $3.78 billion (adjusted annually) but “[t]he legislature may amend the threshold amount, by a vote of three-fifths of the members of each house …”
- Most importantly, the “bond lock” mandates that “the treasurer must include a pledge to bondholders that the state will not enact any laws …that change the state’s obligation to comply with [the guardrails] unless…at least three-fifths of the members of each house approve the change…”
The only way to require that the General Assembly depart from the majority vote rule and replace it with a supermajority vote is by amending the state constitution. The spending cap ratified by the voters in 1992 did in fact amend the Constitution to require a three-fifths vote to exceed defined spending limits.
But the General Assembly never acquired that authority via a constitutional amendment in 2017 nor in 2023 and it did not possess such authority on its own. Even though the 2023 General Assembly passed the guardrails unanimously, that vote did not carry the same weight as a constitutional amendment because it was never proposed as such nor ratified by the electorate in a general election as required by amendment procedure.
The bond lock “escape option”
Some advocates might concede that instead of repealing or holding the bond lock unconstitutional, the better remedy is to utilize the “escape option” procedures written into the bond lock law. It enables the General Assembly to waive any legal consequences of violating the covenant, at least for the then-current fiscal year, by following the “escape” procedures of a three-fifths vote and emergency declaration.
But the irony of the bond lock “escape option” is that it also is ineffective as a parliamentary device because it too requires a supermajority three-fifths legislative vote that was never authorized by a constitutional amendment. Exercising this escape clause may be a utilitarian defensive tactic against a bond holder lawsuit, but it does not confer any actual legal validity on the bond lock nor does it cure any violation of the majority vote rule in any of the guardrail statutes.
This analysis shows that the budget guardrails were designed to block future legislatures from amending these budget laws by majority votes. But did the 2017 or 2023 General Assemblies have the authority to bind future legislatures?
Tomorrow I address this important issue.
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.