Gehrke: Constitutional Amendment C is both petty payback and a worthwhile balancing of powers

Francisco Kjolseth | The Salt Lake Tribune The Salt Lake Tribune staff portraits. Robert Gehrke.

Journey with me back to a simpler time — a scrappy prosecutor named Robert Mueller was just hired to probe Russian election meddling, the song “Despacito” was the summer’s annoying earworm, and Rep. Jason Chaffetz decided to throw everyone a curve, quitting just four months into his term.

As you’ll recall, the law was unclear about how to pick Chaffetz’s replacement, since legislators had failed to fix it a few months earlier. So, in mid-2017, there was a showdown between legislators, who wanted to let the more stridently conservative Republican delegates pick the next congressman, and Gov. Gary Herbert, who thought voters should decide.

Legislative leaders tried to force the governor to call a special session to create a process to choose the House member, but Herbert refused, arguing that since the Legislature had punted on the issue, he had the authority to do it on his own.

Lawmakers fumed and even threatened to sue the governor. Herbert was right to stick to his guns and, in the end, voters chose Rep. John Curtis by a wide margin over the delegates' preferred choice, former state Rep. Chris Herrod.

But the feud didn’t end there. In the aftermath, House Majority Leader Brad Wilson, R-Kaysville, reached for a sledgehammer, proposing a revision to Utah’s Constitution that would allow two-thirds of the Legislature to vote itself into a special session. It’s called Amendment C on your ballots.

The idea on its face looked like petty political payback, a finger in the eye of the governor and a blatant power grab.

And, indeed, it’s probably all of those things, and then some.

The Salt Lake Tribune editorial board — which doesn’t ask me for my opinion (*cough* Mia Love *cough*) — blasted the proposed amendment, calling it “a pernicious idea that is designed to upset a constitutional balance of power that has been working rather well in Utah for more than a century.”

So here’s where I tell you to make sure to vote it down, right?

Plot twist!

The amendment, whatever its motivations, raises legitimate issues regarding the balance of power: Should one official, elected statewide, be given the ability to prevent action by two-thirds of the branch that arguably is (or at least should be) more directly representative of the will of the people?

We’ve kind of already answered that question. We give the governor veto power as a tool — or weapon — to stop legislation he doesn’t like. But to balance that power, we also give the Legislature the ability to override the governor’s veto if it can get two-thirds support.

Special sessions called by the governor in collaboration with legislators are fairly rare. Veto override sessions are even more infrequent. As it’s written, Amendment C only lets the Legislature invoke its new power in emergencies — natural disasters or financial crises. So the likelihood that the Legislature would actually call such a session seems remote.

But here’s the thing: The fact that the Legislature even has a veto-override option means the governor doesn’t hold all the cards and actually has to negotiate on the tough issues.

And what happens down the road if the Legislature needs to investigate allegations of corruption? When the House launched its investigation into former Attorney General John Swallow, Herbert called a special session for that and other topics, and the Legislature created a committee to conduct the probe.

But what happens if it is the governor who is accused of wrongdoing? The House could convene formal impeachment proceedings on its own, but would have no other investigative options short of that.

Those are some of the reasons 35 state legislatures have the authority to call themselves into special session with varying bars they have to clear first — in some states it’s as easy as the House speaker and Senate president agreeing, while some states require as many as three-fourths of the Legislature to agree to the session.

Herbert, understandably, doesn’t like the amendment. It does, after all, tilt the balance of power. Earlier this month, his former campaign manager, Marty Carpenter, created Utahns for Balanced Government, and the governor dumped $55,000 to bankroll opposition to Amendment C.

The amendment could open the door to legislative creep (mission creep, not creepy legislators) and move the state from having a part-time Legislature toward a full-time body.

To be sure, there are some perfectly legitimate arguments against giving the Legislature more power. The most compelling is that these guys can barely be trusted with the power they have now, and with the overwhelming Republican supermajorities in both chambers, there’s no telling what two-thirds of the lawmakers might be willing to get behind.

So far, those arguments seem to be winning the day. A recent poll by The Tribune and the Hinckley Institute of Politics found just 39 percent of registered voters supporting the change.

The lack of support probably boils down to a mistrust of the Legislature. And that’s fine and justifiable. But regardless of what prompted this push for change, the amendment does have some merit and deserves voters’ careful consideration.