Nick Krieger (@nckrieger):
Yesterday afternoon, Lieutenant Governor Brian Calley cast tie-breaking votes on House Bills 4615 and 4616 in the Michigan Senate. These bills would raise the gasoline and diesel fuel taxes to help pay for road repairs. They now return to the Michigan House of Representatives for its concurrence.
Article 5, Section 25 of the Michigan Constitution of 1963 provides that "[t]he lieutenant governor shall be president of the senate, but shall have no vote, unless they be equally divided." But it wasn't always that way, and it wasn't always clear exactly what this provision meant.
Under the Michigan Constitution of 1850, the Lieutenant Governor served as president of the senate, but was only permitted to cast a tie-breaking vote when the senate was sitting as a committee of the whole. (Interestingly, under the Constitution of 1850 the Lieutenant Governor was also permitted to participate in debate in the committee of the whole.)
During the legislative session of 1906-1907, the Michigan Senate became bitterly divided; the Lieutenant Governor, a partisan official, naturally sided with one party over the other. Hence, at the Constitutional Convention of 1907-1908 certain delegates from the opposite political party recommended narrowing the Lieutenant Governor's powers even further. They put forward new constitutional language, which provided merely that "[t]he lieutenant governor shall be president of the senate, but shall have no vote." During the debate on this proposed constitutional change, Delegate Alfred Milnes commented:
"If we are to pass the proposal as it now stands, you have taken from the office of the Lieutenant Governor practically all of the power that he has in the government of the great state of Michigan. . . . [W]hat in the name of heaven is left for the Lieutenant Governor to do except to wait and pray that the Governor may die. . . . Rather than pass the proposal as it now stands, I should like to see the whole proposal stricken out, so that we shall have no Lieutenant Governor at all. . . . [S]imply because a part of the senate did not agree with the Lieutenant Governor during the last session of the legislature is no reason in my judgment why he should be shorn of all power and all dignity, and left with nothing in the world to do except, as I said before, to wait and pray that the Governor might die, and then possibly, if you pass another proposal that is here, he can draw a thousand dollar salary for doing nothing." [1 Proceedings & Debates, Constitutional Convention of the State of Michigan, 1907-1908 (January 2, 1908), p 491 (emphasis added).]
Despite Delegate Milnes's remarks, the proposal was adopted and ultimately became Article 6, Section 19 of the Michigan Constitution of 1908. From 1908 until 1964, Michigan's Lieutenant Governor had no vote at all, even when there was a tie in the committee of the whole.
As noted above, the Michigan Constitution of 1963 (our current state constitution) now provides that "[t]he lieutenant governor shall be president of the senate, but shall have no vote, unless they be equally divided." Const 1963, art 5, sec 25. But until 1978, it wasn't clear whether this provision actually gave the Lieutenant Governor power to break a tie on final passage of a bill through the Michigan Senate.
On November 30, 1978, Governor William Milliken signed enrolled House Bill 4407 (Public Act 426 of 1978), which increased the gasoline and diesel fuel taxes effective January 1, 1979. The bill had passed the Michigan House of Representatives earlier that fall by a vote of 57 to 50. However, when the bill reached the Michigan Senate and was placed on final passage, 19 senators voted yes and 19 senators voted no. Lieutenant Governor James Damman was called upon to cast a tie-breaking affirmative vote, and the bill was declared adopted.
Opponents of the bill questioned the legitimacy of the Lieutenant Governor's vote, noting that although the Michigan Constitution appeared to give him the power to break ties, it also provided that “[n]o bill shall become a law without the concurrence of a majority of the members elected to and serving in each house.” Const 1963, art 4, sec 26 (emphasis added). They argued that these two provisions were in conflict with each other and that the Lieutenant Governor's authority should therefore be interpreted only as a power to break ties in the committee of the whole (as it was under the Constitution of 1850)--not to break ties on the final passage of bills in the full senate. In light of the controversy, Governor Milliken asked the Michigan Supreme Court for an advisory opinion on the constitutionality of Act 426, and specifically the Lieutenant Governor's vote.
In In re Advisory Opinion on Constitutionality of 1978 PA 426, 403 Mich 631; 272 NW2d 495 (1978), a majority of the Michigan Supreme Court determined that the Lieutenant Governor did, indeed, have the constitutional power to break a tie vote on final passage of a bill. The Court held that the Lieutenant Governor's general tie-breaking power under the Michigan Constitution of 1963 was broader than the more limited committee-of-the-whole power that had existed under the earlier Constitution of 1850. Therefore the Court noted that Act 426, raising the gasoline and diesel fuel taxes, had been constitutionally enacted.
To borrow from Yogi Berra, Brian Calley's tie-breaking votes on House Bills 4615 and 4616 were like déjà vu all over again. I wonder how many people remember that it took a decision of the Michigan Supreme Court to secure the Lieutenant Governor's right to break a tie on an unpopular gas-tax bill.