To Avoid A Constitutional Problem, The Legislature Should Vote On Union Contracts

Last year I wrote at length about a state legislative process that allows collective bargaining agreements (CBAs) with state employees to become law without legislators actually voting to approve the agreements. Under the “deemed approved” process, a CBA is presented to the legislature for consideration. If the legislature does not reject the CBA in thirty days, it becomes law.

I explained that the deemed approved process is inconsistent with the state constitution, which provides that a legal proposal, like a bill, only becomes “law” when a majority of the members of both houses of the legislature vote to approve the bill and the governor signs it. I also explained that the deemed approved process is an example of bad governance because it allows our elected representatives to avoid voting on the record and taking responsibility for one of the most important aspects of state government.

Naturally, I was quite pleased to see that a bill was introduced at the very beginning of the new legislative session that would have required members of the legislature to vote on CBAs. That is how our representative democracy is supposed to work. Unfortunately, the bill was rejected on a party-line vote. There is talk, however, that it may be reconsidered later in the session.

I hope the bill is reconsidered, and I hope it passes, because I think there may be a serious constitutional problem if it doesn’t pass. The problem is that the state constitution places limits on the legislature’s ability to delegate its lawmaking authority to another branch of government. This is known as the “nondelegation doctrine.”

Some law professors spend their lives studying the doctrine. The Connecticut Supreme Court provided this explanation of the doctrine in State v. Stoddard, 126 Conn. 623 (1940):

The Constitution of this state provides for the separation of the governmental functions into three basic departments, legislative, executive and judicial, and it is inherent in this separation, since the law-making function is vested exclusively in the legislative department, that the Legislature cannot delegate the law-making power to any other department or agency. In the establishment of three distinct departments of government the Constitution, by necessary implication, prescribes those limitations and imposes those duties which are essential to the independence of each and to the performance by each of the powers of which it is made the depositary. . . . Although our Constitution contains no specific limitations, relevant to the present inquiry, upon the exercise of legislative power “the limitations . . . are no less real, and perhaps more effective, than if phrased in specific terms.”

. . .

A Legislature, in creating a law complete in itself and designed to accomplish a particular purpose, may expressly authorize an administrative agency to fill up the details by prescribing rules and regulations for the operation and enforcement of the law. In order to render admissible such delegation of legislative power, however, it is necessary that the statute declare a legislative policy, establish primary standards for carrying it out, or lay down an intelligible principle to which the administrative officer or body must conform, with a proper regard for the protection of the public interests and with such degree of certainty as the nature of the case permits, and enjoin a procedure under which, by appeal or otherwise, both public interests and private rights shall have due consideration. . . . If the Legislature fails to prescribe with reasonable clarity the limits of the power delegated or if those limits are too broad, its attempt to delegate is a nullity.  (Emphasis supplied.)

Given the nondelegation doctrine, the question is whether the State Employees Relations Act (SERA), the 1977 law that authorized collective bargaining in Connecticut, is a lawful or unlawful delegation of power to the executive branch to the extent that it provides for the deemed approval of CBAs.  To my knowledge, no Connecticut court has addressed this question. I do not know how the Supreme Court would resolve the question if presented with it. But I do think it is a serious question. I also think it would be better for the legislature to render the constitutional question moot by adopting legislation that requires an affirmative vote on CBAs than to leave the issue to the courts.

I intend to cogitate and write more on this issue in the future. Meanwhile, I am interested in readers’ thoughts. Please comment!

UPDATE (1/11/17): Yesterday I spoke with WDRC’s Dan Lovallo about these issues.

7 thoughts on “To Avoid A Constitutional Problem, The Legislature Should Vote On Union Contracts

  1. The legislative responsibility-ducking is enraging.

    For me the archetype is the US House which years ago tasked a commission with reviewing congressional compensation and provided that the commission’s recommendations would become law unless disapproved by the House by a date certain.

    The commission recommended hefty raises. The House let the deadline pass without disapproval, so the raises took effect. A few hours later, the House took a meaningless vote overwhelmingly disapproving the raises, so the Congresspersons could all take the raises and also say they voted against them.

    Please pass the barf bag.

    “Democracy is the theory that the people get the government they deserve, good and hard.” –H.L. Mencken

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  2. Hey Dan,

    Great article as always.

    I see no reason why the legislature should not vote on it. If representatives favor the proposed deal with labor unions, let them vote Yea.

    I can’t imagine what is wrong with a Legislator going on record saying they support or don’t support something?

    Do any other states have a similar process for labor agreements?

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  3. If failure to formally consider any CBA is a de facto ratification, doesn’t the legislature “act” regardless of a vote? It seems the majority party effectively prevents an officially recorded tally that later may be attached to individual legislators – or a political party at-large – pro or con.

    This story centers on the lower chamber. Can such a measure originate in the Senate? If so, are the prospects of such better there, and would it be incumbent on the House to act in that case?

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    • Either chamber can reject an award or agreement, so what one chamber does really doesn’t impact the other. If, for example, the Senate rejected an agreement, it wouldn’t matter if the House voted or not since the approval of both chambers is necessary. In my many years working for the state, it was always a great disappointment when legislators refused to do their job and vote on an agreement or award. This was not a common practice in the early days of collective bargaining, but unfortunately became not only a common practice but the usual one in my later days in state service and since I left state service. These agreements are among the very most important bills affecting the fiscal policy of the state (generally other than the actual budget bills and implementers themselves in most sessions), so to have people who are elected to serve the people refuse to do their job and vote on them is beyond reprehensible. No one who refuses to do the job they have been elected to do deserves anyone’s vote. People can have legitimate differences on whether an agreement or award should be approved, and should be willing to evaluate both sides when determining whether to vote for a legislator who has either supported or opposed such agreement or award. But there is no decision to be made on a legislator who won’t even cast a vote. They don’t deserve the job they are in and should be replaced by someone who is willing to stand up and do the job they have been elected to do.

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  4. I’m not very familiar with the passages quoted here, but as a private citizen, here is my letter submitted to the editor of the Courant this week, and cc to the 3 “swing” democrats: The January 6, 2017 Courant article where Republicans sought to require votes on union contracts that was stopped by calls for bipartisanship from the Democrats was disgusting! What responsible person would allow ANY state contract to automatically take effect without review and a vote, whether or not the state is facing deficits? The state is facing deficits because the LAWMAKERS DID ALLOW CONTRACTS TO TAKE EFFECT WITHOUT A VOTE SO STATE CONTRACTORS (IN THIS CASE, THE UNIONS) WOULD HAVE NO REASON NOT TO CONTINUE TO VOTE FOR THE LAWMAKER’S CANDIDACYS. It is not right nor fair to us that our elected officials essentially write “blank checks” for anything! I’m tired of seeing the Book of Lists with UCONN having pages of the highest salaries in the state, and the State of Connecticut being the state’s largest employer at almost 49,900 employees (Yale Health System is next at only 19,000). Tax deductions from our paychecks “earn income” for the state to write these “blank checks”. A call for unity in this case, means a call for the legislature to go on bilking Connecticut citizens. SHAME, SHAME, DOUBLE SHAME-TIME TO CHANGE LEGISLATIVE NAMES!

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