As of August 18, 2023, a review of the circumstances regarding Bill
Lee’s proclamation for a special legislative session and some of the
response of legislators to that proclamation forms a basis for
conservatives to be concerned about the potential for misdirection and
lack of openness in the process to materially change public policy in
Tennessee. It also keeps alive concerns that the Legislature will
consider Red Flag law proposals (which Governor Lee refers to as
“temporary mental health orders of protection”) as well as a spectrum of
other potential gun control proposals.
The first consideration
arises from Governor Lee’s statements and conduct. As early as April
2023, Governor Lee was stating publicly that he was calling a special
session for
gun reform.
But that is just the reported public statements of Governor Lee’s
support for gun control in Tennessee. Whatever was occurring between
Governor Lee and Legislators (including
several Democrats
such as Senator Heidi Campbell) remains open to speculation since very
few reports have been released of Lee’s full gun control agenda, at
least until August 8, 2023.
On August 8, 2023, Governor Lee
issued at practically the last minute his proclamation for the long
announced August 21, 2023, special legislative session. That
proclamation makes
clear that Governor Lee has disregarded the Tennessee Constitution’s
provisions for a special session. Governor Lee’s proclamation included
18 extremely broad and general categories that he wanted to be addressed
in the special session.
But was that proclamation
constitutionally appropriate? No. Article III, Section 9 of the
Tennessee Constitution gives the governor the discretion to call a
special session but there are important limits on that authority. These
limits exist to make clear that special sessions are not to be used as a
means of conducting a session on broad expanses of topics and in the
absence of extreme or extraordinary situations. The state constitution
provides “Section 9. He may,
on extraordinary occasions, convene the General Assembly by proclamation, in which he
shall state specifically the purposes for which they are to convene;
but they shall enter on no legislative business except that for which
they were specifically called together.” (emphasis added)
Governor
Lee’s proposed special session, which comes more than 4 months after he
initially called for a gun control session and just about 5 months
prior to the Legislature’s regular session in January 2024, fails on the
constitutional conditions precedent. It is neither “extraordinary” nor
to address a “specific” purpose.
Governor Lee made clear he
wanted to call the special session to pass gun control legislation – at
least that is what he said publicly. Ostensibly, the extraordinary
occasion was as a response to the Covenant School murders. But, is that
really an extraordinary occasion constitutionally? Clearly no. The
Covenant School murders were March 27, 2023, which was at the time in
the middle of the 2023 regular legislative session. When Governor Lee
announced on April 11, 2023, that he wanted the Legislature to pass a
law that is categorically known as a Red Flag law, he apparently
expedited the Legislature to enact his proposal at that time. However,
the Legislature expressed no interest and instead moved toward
adjournment rather than to “walk the plank” on the path of gun control
that Governor Lee was demanding. Certainly, Legislators could have filed
or amended existing bills during the 2023 regular session if the
Legislature wanted to address gun control as the Governor was demanding
but it refused. After being rebuffed, Governor Lee retaliated by
threatening that he would call the legislators to a special session on
gun control. There is nothing to indicate that any of the 18 broad
issues in the Governor’s special session proclamation are based on
“extraordinary circumstances” that could not be addressed in the
upcoming regular session in January 2024.
Another constitutional
requirement for a special session is that the proclamation must state
specifically the purposes for the extraordinary legislative session.
Governor Lee’s proclamation fails that constitutional limit. He has
chosen to list 18 categories of topics and many of those are essentially
open ended categories like “mental health,” “school safety plans or
policies,” “mass violence,” “stalking” or court reform. As evidenced by
the broad topics in some of the
filed special session legislation
such as making it a hate crime to target individuals or entities that
provide abortion or gender affirming medical procedures (see, e.g.,
bills proposed by Rep. A. Davis), there is really no limit on the scope
of the potential legislation that is going to come up in the special
session.
The fact is that the lack of a constitutional
justification for a special session – at least as Governor Lee has
called it – is beyond rational dispute.
Another problem that should cause concern with conservatives is that already
47 House bills
have been filed, 6 Senate bills have been filed, 16 House Joint
Resolutions, 9 Senate Joint Resolutions and 8 additional House
resolutions have been filed. That is just the tip of the Titanic’s
iceberg at this point. Potentially 100 to 200 proposed bills could be
filed just for the special session. Obviously, the fact that so many
diverse bill and resolutions topics are being submitted is conclusive
that the Governor’s proclamation was not for a “specific” purpose. He
has done nothing more than make a call for a general legislative session
to focus on gun reform and other topics that he apparently contends
falls under the even broader and less specific descriptor of “public
safety.”
In addition, it is also necessary to consider another
problem that is self-evident when reviewing the bills and resolutions
that have been introduced on the eve of the special session (more are
coming!). This problem is the deception of caption bills which can be
used intentionally for misdirection and confusion of the public. The
history of legislative shenanigans in Tennessee teaches those who are
concerned openness in the crafting of public policy that even the bills
that have been filed may have nothing to do with what is actually
intended by the legislative sponsors (or with respect to “administration
bills” the Governor’s true agenda). The problem arises because some
legislators have used the practice of “caption bills” to file a bill
which contains a bill body that portends to do something harmless or in
another area of the law while the bill’s sponsor has the actual intent
or objective to amend the bill so that it does something entirely
different and frequently more dangerous. To be fair, sometimes “caption
bills” are filed with good intent as a placeholder while more complete
language is being prepared or negotiated, but in other instances where
there is little or no continuity between the original bill’s language
and the final amendment the specter of public deceit is revealed.
Since it is well established that some legislators are skilled at
using this practice involving misdirection and concealment, we, “the
People,” must be concerned when reading any of the initial bills that
have been proposed as of August 18 for the Special Session as to whether
the true intent of those bills are as presently reflected in the bodies
of those bills. We must look not only at the language of the body of
the bills, but we must also read the “caption” which appears in the
upper right corner on the first page of each bill to see if that caption
is narrowly limited to the existing body of the bill or whether it
opens up large areas of the statutes which exceed the scope of the
bill’s initial language. Because of a history of deception, we must
examine how many of what might appear to be good or even harmless
proposals could quickly morph into the Governor’s proposed Red Flag law
or some other gun control proposal? It is hard to know but it can be
said with certainty that the use of and the risks of the “caption bill”
gambit is extremely concerning due to the short time period involved and
the lack of transparency offered.
At this point, it should be
clear that the proclamation for the special session is constitutionally
suspect. The breadth of bills and resolutions being proposed as neither
narrow or focused to address a time sensitive “extraordinary” event.
Consequently, the only constitutionally acceptable response is for the
Legislature to defer everything to the regular session that starts in a
few short months. If we put a value on and truly adhere to the
constitutional construct for how public policy is to be made, we cannot
and should not make exceptions in this special session even if a bill is
proposed that would find favor with Second Amendment advocates such as
actually enacting real constitutional carry.
It is our obligation to instruct our Legislators, in accordance with
the Tennessee Constitution, Article I, Section 23, that they must
immediately adjourn from the Governor’s defective proclamation for a
special session. Further, we should admonish them that it is neither
wise nor consistent with conservative principles that call for fiscal
stewardship by government officials to use and thereby waste the
Peoples’ money on a special session that is neither the solution to an
extraordinary crisis nor limited to a specific and narrow purpose.
