The Iowa Senate has taken the first step toward preventing a repeat of last spring’s controversy over whether Kim Reynolds would have the authority to name a new lieutenant governor following Terry Branstad’s resignation.
With broad bipartisan support, senators approved on March 7 a constitutional amendment designed to give future generations “a clear and explicit understanding of the line of succession for Iowa’s governors.”
HOW THE IOWA CONSTITUTION WOULD CHANGE
Attorney General Tom Miller determined last May that if a governor resigns or dies in office, the lieutenant governor assumes not only the duties but also the title of governor.
At the same time, Miller found that the Iowa Constitution does not confer the authority to appoint a new lieutenant governor under those circumstances. Citing precedent and case law, the attorney general argued that the lieutenant governor’s office is not considered vacant when that person exercises the governor’s powers. He also pointed to language indicating the framers did not want an unelected person to be next in line for the state’s highest office. Miller said at the time that while he supported the idea of a new governor being able to name a lieutenant governor, establishing that process would require a constitutional amendment.
Reynolds and her Republican allies relentlessly and unfairly attacked Miller’s exhaustively researched opinion. But the new governor opted not to provoke a constitutional crisis by defying the attorney general. She formally acknowledged that Adam Gregg would “operate” but not hold the office of lieutenant governor and would have no place in the line of succession. Ever since, she and everyone else in her administration have pretended Gregg is actually the lieutenant governor.
Earlier this year, the Senate State Government Committee introduced a study bill that would alter Article IV, Section 17 of the Iowa Constitution. The one-paragraph bill stipulated that if a governor becomes permanently unable to serve, “the lieutenant governor shall assume the office of the governor for the residue of the term” and “shall appoint a lieutenant governor who shall have the duties provided in section 18 of this article and who shall in turn be eligible to act as governor or to assume the office of the governor as provided in this section.”
After his committee approved the legislation along party lines, State Government Committee Chair Roby Smith prepared an extensive amendment to Senate Joint Resolution 2006. The new language altered four sections of Article IV to clarify that:
• If a governor-elect dies before being inaugurated or becomes permanently unable to serve as governor, the lieutenant governor-elect “shall become governor upon inauguration, to the exclusion of any other office, for the residue of the term.”
The current wording of Section 17 states that “the powers and duties shall devolve to the nominee for lieutenant governor.” Miller’s reading of that and other passages led him to conclude, “upon a governor’s resignation, the lieutenant governor will hold both the offices of Governor and Lieutenant Governor.”
• “The governor shall have the power to fill a vacancy in the office of lieutenant governor by appointment.”
Decrying Miller’s opinion last May, Republicans noted that legislators had unanimously approved a 2009 law stating, “An appointment by the governor to fill a vacancy in the office of lieutenant governor shall be for the balance of the unexpired term.”
In Miller’s reading, that law gave a governor the authority to replace a lieutenant governor who became unable to serve (for instance, if Reynolds had died or resigned while Branstad was governor). But the current wording of Article IV, Section 19 spells out a line of succession if the governor’s office is vacant and the lieutenant governor cannot perform the governor’s duties. In those circumstances, the governor’s powers would devolve to the president of the Iowa Senate, with the Iowa House speaker next in line. An ordinary law cannot supersede the constitution.
• “If the governor dies, resigns, is removed or impeached prior to acquittal or conviction, or is otherwise unable to serve, the lieutenant governor shall become governor, to the exclusion of any other office.”
The current wording states that under such circumstances, the Iowa governor’s powers “shall devolve upon the Lieutenant Governor.” The proposed amendment is comparable to the 25th Amendment to the U.S. Constitution, which replaced a passage saying the president’s powers “shall devolve on the Vice President” with one specifying, “the Vice President shall become President.”
The phrase “to the exclusion of any other office” underscores that lawmakers do not intend one person to hold the two highest positions in the executive branch.
• “If the governor and lieutenant governor are simultaneously unable to serve, the president of the senate shall become governor, followed by the speaker of the house if the president of the senate is unable or unwilling to serve, each succeeding, to the exclusion of the powers and duties of any other office.”
Article IV, Section 19 now states that if the governor’s office is vacant and the lieutenant governor becomes “incapable of performing the duties pertaining to the office of governor, the president of the senate shall act as governor until the vacancy is filled or the disability removed,” with those powers devolving to the Iowa House speaker if the Senate president is unable to serve. The new language specifies that lawmakers want a governor to be able to appoint a lieutenant governor with a place in the line of succession. Legislative leaders would assume those powers only if some event incapacitates both top executive branch officials at the same time.
HIGHLIGHTS FROM THE SENATE DEBATE
Smith began the March 7 floor debate by explaining that this constitutional amendment would meet a “specific and clear need.” It would allow future generations “to have a clear and explicit understanding of the line of succession for Iowa’s governors, so that there never is any question as [to] who holds the statewide office, who succeeds to it, and what happens in the event the unexpected occurs.” (His opening remarks start at 5:14:45 in this video.)
Democratic State Senator Tony Bisignano offered an amendment to Smith’s amendment, which would make the governor’s newly-appointed lieutenant governor “subject to confirmation by a two-thirds vote of all the members of the general assembly.” Most gubernatorial appointees must be confirmed by a two-thirds vote in the Iowa Senate. Bisignano argued that representatives of Iowa citizens should be able to weigh in on a nominee who would be next in line for the state’s highest office.
Smith opposed Bisignano’s amendment on the grounds that Senate confirmation is not required for other statewide officials appointed to fill a vacancy. (Just this week, Reynolds named Mike Naig to serve on Bill Northey’s term as secretary of agriculture.)
After senators rejected Bisignano’s amendment, Democratic Senator Tod Bowman asked to defer consideration of SJR 2006 while a different amendment was drafted.
When senators returned to considering the constitutional change (at 6:01:00), Bowman offered new language. The 25th Amendment to the U.S. Constitution states, “Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.” To align with that principle, Bowman’s proposal would make a newly-appointed lieutenant governor “subject to confirmation by a simple majority vote of the members of each house of the general assembly.”
He said his amendment was “not designed to be a partisan issue” and speculated that Gregg would easily be confirmed under those rules. Bowman added that several states outline a similar process, giving people “a voice in who could potentially be their governor.”
Speaking in opposition, Smith repeated some of the points he made against Bisignano’s proposal. He argued that just as the House is able to choose their speaker and the Senate is able to choose their president, the executive branch should be able to choose the governor’s successor.
Senators rejected Bowman’s amendment mostly along party lines, except that Republican Tim Kaupcian joined the 20 Democrats and independent Senator David Johnson to support confirmation for a new lieutenant governor. Johnson takes a strong interest in this debate, having requested the formal opinion from Miller on Reynolds’ authority to name a new lieutenant governor.
In his closing remarks, Smith noted that even without any confirmation process, the people of Iowa will have “the final say” on this proposal, because all constitutional amendments must be approved on a general election ballot. He thanked GOP Senator Waylon Brown and Bisignano, who served on the subcommittee. He also thanked staff from the governor’s office and Attorney General’s office, as well as Pete McRoberts, who “spent an untimely amount of hours with me on this.” (An attorney and former aide to Governor Chet Culver, McRoberts disagreed with Miller’s reading of the constitution.)
On final passage, senators approved SJR 2006 by 45 votes to 4. Democrats Bowman, Rob Hogg, Wally Horn, and Matt McCoy opposed the amendment, and Republican Rick Bertrand was absent.
Changing the Iowa Constitution is a lengthy process. Before this amendment can take effect, the Iowa House would have to approve it this year. Then both chambers of the next elected legislature would have to pass it again in either 2019 or 2020. Finally, the amendment would appear on the November 2020 ballot for consideration by Iowa voters.
I’m glad Republicans now tacitly admit they need to amend the constitution to provide for the outcome they desire next time an Iowa governor can’t finish his or her term. Reynolds and other GOP leaders owe Miller an apology for accusing him of partisan political motives without any justification.