Legislative leaders: Signed set of conditions for a special session are 'unenforceable'

Mar. 31—CHEYENNE — Efforts by the Wyoming Freedom Caucus to get signatures from fellow lawmakers on a "gentleman's agreement" is considered "unenforceable," and possibly unconstitutional, according to a response from the Legislature's presiding officers.

Senate President Ogden Driskill, R-Devils Tower, and House Speaker Albert Sommers, R-Pinedale, sent a memo to legislators over the weekend in response to the proposed "Gentleman's Agreement" that was submitted Friday evening.

"While we appreciate the intentions behind the proposal, we cannot support the outlined process, even though we voted for these bills," they said in the memo. "Veto letters have nuggets of good information and sometimes those bills could stand more public comment and work. Maybe you end up in the same place, but the public process and the debate are essential."

This memo was obtained by the Wyoming Tribune Eagle from a legislator on Sunday, who wished to remain anonymous.

The "Gentleman's Agreement" outlined several conditions for a special session. The conditions include an expedited consideration of the bills, prohibiting the addition of amendments, limiting the agenda to an agreed list of bills, suspending any public comment or discussion, committing three days to override potential gubernatorial vetoes and agreement to modify the rules to allow for remote participation.

A total of 29 lawmakers signed the agreement — nine from the Senate and 20 from the House of Representatives.

Constitutional concerns

In their response, Sommers and Driskill raised several concerns with the agreement, one being that it was completely baseless in Wyoming statute. To require lawmakers to adhere any kind of voting obligations "undermines" their autonomy, Driskill and Sommers wrote, and raised constitutional concerns.

"Each member is duly elected and has a right to vote according to their conscience," they wrote in the memo. "Signing a pledge abrogating our duties as a legislator is completely unenforceable."

Outside of constitutional concerns, the Legislature's presiding officers said there isn't enough "trust built in these chambers to create any kind of 'Gentleman's Agreement.'" The 29 lawmakers who signed the agreement only represent 31% of the entire legislative body.

"Further, there will be many members who never sign the agreement and will be free to do what they want. Will the body have the fortitude to resist?" the memo stated.

Driskill and Sommers added that rushing the legislative process to pass bills and cut out any opportunity for public comment, "undermines transparency and accountability of our legislative process."

"We worry the process begins to look like what is happening in D.C.," they said in the memo. "In D.C., the bills are all cooked in advance, the votes are known in advance, the amendments, if any, are decided in advance, and the debate is limited by ensuring the bill is filibuster proof. Do we want to turn the Wyoming legislature into D.C. style politics? We don't think so, even if some are trying."

Pandora's box, lack of trust

The idea to ask lawmakers to agree on a set list of bills to debate in the session raised "questions about fairness and transparency." Driskill and Sommers said it was unclear who would decide which bills to debate and whether the list was amendable. The presiding officers doubted the two chambers would come to an agreement and repeated their concern that a special session would "open Pandora's box."

"Do we really think members will stick with the limited list?" they said in the memo. "For example, do we want to open up the budget, because in the last few days we've heard rumblings that some do?"

This was the very case during a special session in 2020, according to the memo. After lawmakers agreed to limit the bills, Sen. Dave Kinskey, R-Sheridan, and former Rep. Richard Tass brought forth a new bill, where parts of it were incorporated into another bill. The legislative leaders warned history is destined to repeat itself.

As for the suggestion to allow lawmakers to attend the special session remotely, Driskill and Sommers said they were against the idea. Even seasoned legislators forget they're on the big screen, they wrote.

Bills unprotected from veto

It is not uncommon to have bills that are unprotected from the governor's veto because they were submitted within the last three days of a session. Dozens of bills are left "unprotected from veto" at the end of a session, Driskill and Sommers wrote.

Last year, during the 2023 general session, 44 bills were submitted to the governor's desk without enough days left in the calendar to override his veto. In 2022, 59 bills shared the same fate. In 2021, 30 bills were submitted without opportunity for a veto override, and in 2020 that number was 103. In 2019, 77 bills were left unprotected. Even some bills during the 2021 and 2020 special sessions were left unprotected.

This year, in the 2024 budget session, 65 bills were submitted to the governor's desk without opportunity for the Legislature to override his vetoes, which is "nothing out of the ordinary." The only way to resolve this issue is to become a full-time legislature, Driskill and Sommers wrote, where lawmakers are in session all the time.

"However, we do not want to see Wyoming lose the best legislative process in the nation," they wrote. "Some have suggested we are abrogating our constitutional duty to protect our bills by not going into a special session. That is just incorrect. In fact, by not supporting a special session we are preserving our constitutional requirement to conduct ordinary business within 60 days over two years."

The current circumstances do not qualify for an emergency special session, they said. Driskill and Sommers reminded members of the body it is important to consider the "jobs, businesses, farms, ranches, medical appointments, elections, and interim work to balance."

"We realize we signed up for this job, and in an emergency we would all drop our lives and come to Cheyenne," they wrote. "However, the current circumstances do not qualify as an emergency. We can discuss and pass these bills in the next general session."

Legislators have until 5 p.m. Sunday to vote on the idea of having a special session. The outcome of the vote is expected to be announced Monday morning.

Let the news come to you

Get any of our free email newsletters — news headlines, sports, arts & entertainment, state legislature, CFD news, and more.

Explore newsletters

Hannah Shields is the Wyoming Tribune Eagle's state government reporter. She can be reached at 307-633-3167 or hshields@wyomingnews.com. You can follow her on X @happyfeet004.