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.
Note: As of 10:00AM on August 18, 2023, these are the bills and (some) of the resolutions that have been filed for the Special Session. It is notable that in a normal regular session, we would only track 50 to perhaps 80 bills of interest. Here, as of Monday, August 21, 2023, there are already 102 bills proposed and more are suspected.
UPDATED AS OF 4:40pm on August 21, 2023
Sorry, comments are closed for this post.