Nick Krieger (@nckrieger):
In general, an act of the Michigan Legislature takes effect 90 days after the final adjournment of the legislative session at which it was passed. But Article 4, section 27 of the Michigan Constitution of 1963 provides that the Legislature “may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house.” The original meaning of this provision is simple enough: If two-thirds of the members elected to and serving in both the Michigan House of Representatives and Michigan Senate vote in favor of a bill, that bill can take effect immediately upon being signed by the governor.
In recent years, however, Michigan’s legislative majority has drastically and unconstitutionally altered the way in which this provision was intended to operate. Today, the House and Senate routinely engage in the fiction that even when a bill has passed by a bare majority only, it can still be given immediate effect by way of a sham, second vote that is held subsequent to the bill’s passage.
Each house of the Legislature has adopted an internal rule providing that after a bill is passed, even if by a bare majority only, there may be a second, separate vote to give the bill immediate effect. Most members do not actually take part in these separate immediate-effect votes. Indeed, the immediate-effect votes are announced as a mere formality; in every case, it is declared within seconds of the announcement of the vote that two-thirds of the members have voted for immediate effect. Most people with whom I’ve spoken cannot recall a single immediate-effect vote in either chamber during which two-thirds of the members actually voted. Nevertheless, in each case the House or Senate automatically enters in its Journal that two-thirds of the members have voted to give the bill immediate effect—whether it’s true or not. Everyone knows it’s a sham. And it happens all the time.
With one vacant seat, there are currently 109 members elected to and serving in the Michigan House of Representatives. Two-thirds, or 73 members of the House, must therefore concur in order to give a bill immediate effect. Let’s examine two pending bills, both of which have been given immediate effect by the Michigan House of Representatives this month:
Following a marathon session during the early morning hours of May 6, 2016, the Michigan House passed several bills designed to reorganize the Detroit Public Schools. The main bill in the package, HB 5384, passed on a vote of 57-51 (one member was excused). Despite the fact that HB 5384 passed the House with only 57 votes, it is recorded in the Journal of the Michigan House of Representatives that two-thirds of the members elected and serving (in other words, at least 73 members) voted to give the bill immediate effect.
More recently, on Wednesday, the Michigan House passed SB 776, a bill to establish a strict 180-day window for the collection of signatures on initiative and constitutional-amendment petitions. The bill passed the Michigan House by a vote of 57-52. In spite of the fact that SB 776 passed with only 57 votes, it is recorded in the Journal of the House of Representatives that two-thirds of the members elected and serving (in other words, at least 73 members) voted to give the bill immediate effect.
What do you think? Does it seem likely that although only 57 members voted in favor of each bill, at least 73 members decided to give each bill immediate effect? In each case, this would mean that at least 16 representatives who voted against the bill also voted in support of immediate effect. To believe such a thing would be to abandon all logic.
As absurd as it may be, this the new normal for Lansing. As long as any bill has passed by a bare majority, the leadership can give it immediate effect by falsely recording in the Journal that the bill secured the constitutionally necessary two-thirds support during the subsequent immediate-effect vote. The practice violates the plain language of the state constitution. It also permits a small group of legislative leaders—those who control what is written in the Journal—to usurp an extraordinary power that the people who ratified the Michigan Constitution intended to reserve for the supermajority. Until this immediate-effect farce is put to an end, and the constitutional language is enforced as written, our Legislature (or at least our legislative majority) will remain a joke.
So far, no court has been willing to enforce the language of Article 4, section 27. In fact, one panel of the Michigan Court of Appeals (consisting of one judge appointed by Governor Rick Snyder and two judges appointed by former Governor John Engler) has amazingly ruled that whatever is written in the House or Senate Journal is conclusive, even if it is directly contradicted by evidence of the actual vote taken on the House or Senate floor. So I ask: Why bother keeping a journal of legislative proceedings at all if the leadership can fill it up with falsehoods and pass them off as unassailable facts?
It is undisputed that both HB 5384 and SB 776 garnered only 57 votes in the Michigan House. Yet we are expected to accept the ridiculous proposition that two-thirds of the members voted to give each bill immediate effect. Maybe they use a different kind of arithmetic in Lansing. But according to my calculations, 57 is not two-thirds of 109.
Members of the majority party love to talk about the importance of constitutional originalism. They claim that the members of their party believe in applying the constitution as written. They assert that constitutional language is a fixed constant that does not change over time. But like so many other cheap, self-serving aphorisms, these principles are only honored when they happen to be convenient. Michigan’s legislative majority has completely eviscerated the original meaning of Article 4, section 27, bastardizing the constitutionally established immediate-effect process for partisan political gain. They must be so proud of their loyalty to the constitution’s original meaning.