Kennedy Challenges ‘E-Cert’ Use for State Budget

Marcia Chambers PhotoIn the view of State Sen. Ted Kennedy, Jr., Connecticut’s use of an “emergency certification” procedure to deliver the budget as the legislative session ends is creating turmoil for legislators and abusing the budgetary process. It needs to be reformed, he said. .

In an interview, Kennedy said the budget arrives under an emergency certification or “e-cert,” a process that may be invoked when the state faces a natural emergency. Think hurricane clean-up funding, for example.  The use of “e-cert” enables legislative leaders to suspend rules applicable to regular bills, including that the budget be given to legislators 48 hours before they vote. The “e-cert” designation means an immediate vote on a bill is necessary.  Forty-eight hours is not a lot of time, especially with long, complicated budget items, but it is often more than they have now.

Branford’s heir to the Kennedy family political dynasty recently won reelection to a second term in office. As he prepares to return to Hartford in January, the Eagle sat down with him to discuss the issues facing the legislature in 2017.  We asked him his views on the legislative process: What needs to be changed?

Kennedy represents the 12th Senate District, which includes the towns of Branford, Guilford, Madison, North Branford, Killingworth and sections of Durham.  As co-chair of the legislature’s Environment Committee from the time he arrived in Hartford in 2015, he has been front and center in the workings or non-workings of the legislative process.

Changing E-Cert

Kennedy, a health care attorney, said he believes that the e-certification process should not be used for the state budget process. That way legislators will actually have 48 hours to read the budget proposals. “And then you know what will happen?” he said. “There will be questions.”

Kennedy said the e-certification process “is not a good way to do our budget. It is not transparent. People do not know what is going on and what is in the budget because as legislators we are given less than 24 hours to read a document that two years ago was over 700 pages long. And what happens is it is presented to us in the final moments of the legislature. We are then expected to act on it without even having had an opportunity to consider it.”

“The budget is voted on not just on the last day of the session but in the final minutes. Wherever I go people ask me, ‘Why is it that the most important and significant document that you vote on as state legislators, why does that vote come in the final minutes of the final day of the session?’”
Kennedy told the Eagle he looked into that question and found unsatisfactory answers. He explained how the process is supposed to work. 

“If I want to pass a bill out of the Environment Committee, we have a public hearing, and people testify and then we have a committee vote about the bill before it goes to the floor. My bills are unanimous or near unanimous. We discuss and debate it if someone has a concern. Then we have a debate on the House and the Senate floor before we vote. This process does not happen for an ‘e-cert’ bill.”

The Implementer

In addition, the so-called Implementer, which is the second shot at the budget after the formal session ends, uses the e-cert process as a matter of course.

The Connecticut General Assembly’s Legislative Program Review and Investigations Committee, a joint, bipartisan, statutory committee of the General Assembly investigated the budget process and issued a 109- page report in December, 2003. It cites many of the same issues Kennedy is raising now. “There were a series of recommendations made by this committee 13 years ago, including giving legislators more time to review the budget before voting on it,” he said of the report.

In addition, the report describes the Implementer and e-cert issues. It shows, for example, that from 1999 to 2003, the Senate and the House each passed Implementer bills on the same day the e-cert bill was filed. This study recommended Implementers be available a minimum of 72 hours prior to a vote by the first chamber to consider the bill.

Changing the criteria for “e-certing” a bill, in this case, the budget, would require amending the legislature’s joint rules. Absent an amendment to the rules, the Senate could adopt such a requirement in its own rules, as the House has done in the past. These changes could also be accomplished by amending the state constitution (which is much more difficult to do).

The current e-cert system, Kennedy said,  creates enormous uncertainty. Business owners “tell us that what they need is predictability and accountability and stability.” Then they find themselves “blind-sided by the last minute things that wind up in the budget. That is what upsets businesses. All of sudden there is a tax on a car wash or other items get stuffed in. No one sees it coming. There is no hearing. No debate.”

The way it works under an e-cert budget, the power is concentrated with the speaker of the house, the senate president and the governor. They are the ones who emerge from the room with a budget in hand. If a legislator tries to change something in the budget, Kennedy said, he or she is told, “You have to vote it up or down.” What that means, he said, is that “95 percent of the elected representatives are shut out completely from the budget making process.”

The Other Side of Midnight

Kennedy said one way to deal with the crunch at the end of the session that leaves everyone dismayed is to create two separate deadlines, one for the budget and one for all other end-of -session bills. The budget, he suggests, should be passed one week before the session ends.

Then, if other bills come later, they have a far better chance of producing a vote than they do now. Now, many bills that pass in one house die in the other because legislators run out of time before the session ends. Then everyone has to come back next year.  Overall, he said, the legislative process needs to be streamlined. That includes how key committees, like Appropriations and Finance, work or don’t work and whether there are too many overlapping committees to being with.

Kennedy said in the last week or so of the session everyone is trying to get their bills passed. “Some have passed unanimously in the Senate, like a lot of my bills from environment committee have passed unanimously in the Senate and now they are sitting in the House. They are good bills. They have been through various committees. Now because the budget is consuming everything and because the budget has the same deadline as all the other pieces of legislation, the bill doesn’t get called. So what I am suggesting is to create a separate deadline for the session. The budget should be enacted one week before the end of the legislative session,” he said. That way other bills “waiting don’t get jammed up and killed. And for no reason.”

What Kennedy would like to do is “democratize the budget process.” How does that happen, the Eagle asked. “All you have to do is pass a rule that says you cannot use the e-certification process to do the state budget.” He said this so-called emergency that allows for e-cert is “an emergency of our making. It is a yearly emergency, a predictable yearly emergency, one we already know we have in December.”

Taking a Cue from Congress

Kennedy said it is too inefficient to have bills die because the legislature runs out of time when the clock strikes midnight. He said bills that have been approved by one chamber should be allowed to carry over to the next legislative session. That’s how Congress does it. Congress has two years to pass a bill but it has to be done by the same Congress, the same body of elected people who take office at the same time.

He would have bills that pass one chamber but not the other be carried over from say 2017 to 2018, the two years the legislators in the Senate and the House serve. That way the bill does not roll over to an election year with new legislators. “If you pass a bill in one two-year cycle it should carry over to the other or next session as long as the same legislators are involved,” he added. 

“What if we changed that and start right away in the third week of January? Then we would talk about the bills that were left over from the year before. All these bills have had a public hearing, have gone through multiple committees. I had one bill concerning dogs and common interest communities, i.e. condos. The first year it passed the Senate but not the House. The second year it passed the House but not the Senate. This means everyone who testified has to come back, drive up to Hartford, and sit here all day. Soon they will have to come back a third time.”

Overall, Kennedy said, it is up the legislature to do its part “to make the process more efficient,” to rein in the bureaucracy, to streamline the process so that it is functioning, he said.
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posted by: Bradley on December 13, 2016  8:40am

Sen. Kennedy might also want to review the amendment process. Unlike some other states, Connecticut allows any type of amendment, so long as it is tangentially related to the original bill. Committees routinely pass “dummy” bills, for example requiring an agency to conduct a study. These bills often serve as “vehicles” for substantive bills, whose contents may not have received a public hearing.

Similarly, the implementers have grown to gargantuan proportions.  While the Office of Legislative Research produces a plain language summary of the implementer (which itself is often 100 pages long), I doubt that many legislators have the time or energy to get more than a cursory understanding of the bill.