Vis Lupi Est Grex

A committee of the Senate is not the Senate

The 78th Session senators have now had a few weeks' taste of summer, which means it's time for the Senate to recess until August and leave those poor souls who are in Reno (and who volunteer) to handle the Senate's business.

What usually occurs (at least in every interim period since 2007) is the Senate establishes an interim committee that has the authority to consider legislation within the jurisdiction of the standing committees and report it to the Senate by the time the Senate reconvenes from its break. Below is the model resolution establishing an interim committee (S. Res. 75-29).

Associated Students Statutes at Large Volume 75--Unofficial

When the Senate adopts rules of the Senate at the beginning of a session in the model fashion, readopting this type of resolution is unnecessary (sort of discussed here and here). Anyway, that's sort of off topic.

Enter Sen. Jesus Palma, who has introduced S. Res. 78-25 (thanks for numbering legislation!), scheduled to be considered at today's Senate meeting. The resolution would create an interim committee that is "entrusted with the full power and duties of the Senate," including the authority to pass legislation. That legislation would automatically sunset when the Senate reconvenes following a recess. The resolution is creative, no doubt about that, but it is fatally unconstitutional. Before I get to the constitutional concerns, a couple nitpicky points.

• The legislation says the committee (called the "Summer Session" in the legislation, but let's call a spade a spade) is to have a number of members "not to equal or exceed a majority of the full Senate; but must consist of at least twelve Senators." With a 22-member Senate, a majority is 12. The reason staying below a majority is critical is because generally under the Open Meeting Law, whenever a quorum (defined as majority) of a public body meets, it must be noticed and conducted under the OML.
• Ignoring that this committee would have power to pass legislation, it's exceedingly rare for the presiding officer of the parent body to also chair a committee (a continuing problem for the Oversight Committee) because a presiding officer should maintain the appearance of impartiality; the chair of a committee must advocate for the committee's positions, creating an inherent conflict.

Constitutionally, this "Summer Session" idea is dead on arrival. The ASUN Constitution is explicit about the enactment of legislation. In order for a bill to become law, it must first have "passed the Senate." ASUN Const. art. II, sec. 4(a). While the Senate may have all the legislative power of the Association, ASUN Const. art. II, sec. 1, and have the power to make all laws necessary for ASUN, ASUN Const. art. II, sec. 3(a), that doesn't mean it has the power to rewrite by rule the constitutional process for enacting laws. Sen. Palma's proposed committee would do just that.

The proposed committee also deprives the students of their representation because the full Senate is not considering the legislation before it goes to the President for him to sign or veto. Those senators who are not on the committee will have no vote, and thus the students who those senators represent will be unrepresented.

The proposal also leaves some questions unanswered. Does legislation the committee "passes" have to be presented to the President for approval? If so, what if the President vetoes a bill? Does it go to the committee for an override? What about the constitutional provisions governing veto overrides by the Senate, ASUN Const. art. II, sec. 4(b)-(e)? Does this committee obliterate the President's power to make recess appointments, ASUN Const. art. III, sec. 2(c)? If the committee truly has the "full power" of the Senate, can it expel senators from the Senate under article II, section 2(c) of the ASUN Constitution? And the list goes on. This alone should be sufficient evidence that this "committee with full power" proposal is a bad idea.

Finally, the Senate cannot delegate to a committee the constitutional powers that are explicitly vested in the body as a whole (e.g., enacting legislation, confirming executive appointments, proposing constitutional amendments). To do so would circumvent the exclusive processes laid out in the constitution.

This proposal reminds me of a couple of proposals that were considered during the 74th Senate Session (selected documents here). Assuming this proposal is based on one of those, a critical point that Sen. Palma seems to be unaware is that the previous ASUN constitution did not explicitly dictate how legislation became law; the present one does. That single difference precludes this proposal.

Rarely does the Senate need to take immediate action during the summer. If the need does exist, however, convening a special meeting with distant senators teleconferencing or video-conferencing should not be much of an impediment to achieving quorum.

In short, the model interim committee established during the 75th Session should be adequate, and it carries with it none of the constitutional concerns as does this proposal, since it is a committee of the Senate just like any other. Sen. Palma's proposal is certainly creative, but the constitutional concerns make it unworkable.