If Florida lawmakers pass a budget in an empty chamber, is it a law?

When it’s time to vote, legislators will file into the House and Senate individually to cast their votes and then turn around and leave.
Members of the Florida House bow their heads during the opening prayer, Thursday, March 12, 2020 in Tallahassee. Left to Right are Representatives Mike LaRosa, Bret Raschein, husband of Rep. Holly Raschein, R- Key Largo, and Blaise Ingoglia, R- Spring Hill.
Members of the Florida House bow their heads during the opening prayer, Thursday, March 12, 2020 in Tallahassee. Left to Right are Representatives Mike LaRosa, Bret Raschein, husband of Rep. Holly Raschein, R- Key Largo, and Blaise Ingoglia, R- Spring Hill. [ SCOTT KEELER | TAMPA BAY TIMES ]
Published March 16, 2020

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TALLAHASSEE — Florida legislators scrambled Monday to come up with a safe way to reconvene this week after their decision to leave Tallahassee without finishing the budget put them in a historic bind in the face of the spreading coronavirus outbreak.

If they returned, they risk spreading the coronavirus among the 160 members of the Legislature, including many of them who are over 65, the most vulnerable age group.

If they don’t come back, they don’t finish the budget and can’t authorize the release of funds to provide emergency assistance to deal with the spread of COVID-19, the disease the virus causes.

After concluding that the Florida Constitution requires a majority of legislators in each chamber to be physically present to approve the only bill they are required to pass each legislative session — the budget — they agreed upon an extraordinary set of unprecedented conditions to guide a meeting that will begin at noon on Thursday.

In essence, they will keep the public away, and lawmakers apart.

“It’s going to be: you vote, get in your car, and go home,’’ House Democratic Leader Kionne McGhee told members of his caucus during a teleconference Monday afternoon.

House and Senate leaders will now bar members of the public from the visitors’ galleries. They will encourage members to listen to the proceedings in anterooms outside of the House and Senate chambers to avoid congregating in the closed space. They will submit written questions in advance — to be answered by the Appropriations Committee chairmen to a virtually empty chamber.

When it’s time to vote, legislators will file into the House and Senate individually to cast their votes and then turn around and leave. And when it’s time to leave, they will eschew the traditional ritual of meeting in the fourth floor rotunda after they adjourn, known as sine die, and drop a hanky.

“We have made certain that those members who feel they are higher risk will have excused absences to stay home and, of course they can register their vote after the fact although it won’t count,’’ said House Speaker José Oliva, R-Miami Lakes.

Going into overtime

March 13 was supposed to be the final day of the annual 60-day session but, because they couldn’t resolve their differences on the $93 billion budget, the House and Senate passed a “concurrent resolution” just before midnight to extend the session until Friday.

Budget leaders finalized the budget on Sunday, starting the 72-hour waiting period before a final vote as required by the Constitution, and planned to return Thursday.

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But legislators failed to consider how fraught the return might be after local officials started closing beaches and restaurants and the Centers for Disease Control and Prevention released guidelines restricting gatherings of 10 people or more.

“We have no reported cases in Leon County, but I’m a little concerned about inviting and requiring people to come back to my district given the circumstances,’’ said Rep. Lorann Ausley, a Democrat from Tallahassee on the conference call. “These are extreme circumstances, and we have to be able to take extreme measures.”

Some members asked to be allowed to vote remotely. Others suggested the session be extended until June, when the budget is due and the virus’ spread may have peaked and subsided.

But Oliva and Senate President Bill Galvano decided to push through, pointing to budget authority in the appropriations bills that would unlock money in the 2019-20 year budget that could be steered into meeting the coronavirus response.

“If we don’t come back, the budget dies on the table, and the only constitutional requirement that we have would have been allowed to die,’’ Oliva told the Herald/Times.

“That would send a signal of panic — that legislators cannot come up for a day and perform their constitutional duty at the same time we’re expecting the workers at Publix, and Winn-Dixie and Walmart and the staff at the post office and healthcare workers to come to work.”

The Florida Constitution contemplates an emergency situation but it allows legislators to meet outside the Capitol to finish its business if needed but mandates that legislators meet in person. Galvano, a Bradenton lawyer, said he didn’t want to take any chances trying something new.

“Florida’s Constitution and laws do not contemplate the Legislature conducting votes remotely,’’ Galvano explained to senators in an email on Sunday. “This public health emergency certainly provides reason to explore changes to our laws that may allow such an option in the future; however, as it relates to this vote, in the midst of a pandemic, I am not willing to risk a legal challenge that could prevent our budget from being promptly enacted.”

Galvano also saw problems with coming back later in the year, said Katie Betta, his spokesperson. The Constitution prohibits legislators from extending the session a second time, so they would have had to allow it to expire and then come back in special session, which would have forced them to start over with the time-consuming job of building the budget.

“When you start with a brand new bill you have even more procedural hurdles,’’ Betta said.

Attendance optional

McGhee told Democratic House members the decision to return is completely voluntary.

“If you come, you come,’’ he said. “If you don’t, you don’t and that’s where we are right now.”

Oliva said that while some members have asked to be excused from returning, he has been in contact with members and “we comfortably believe we have a quorum.”

But since passing a budget is the only constitutionally authorized job for legislators, many were torn.

“I just worry about our members who do the right thing, who don’t want to be perceived as not doing the constitutional duty to pass a budget,’’ said Rep. Carlos Guillermo Smith, an Orlando Democrat. “But it just sends such a mixed message to the public which is: ‘Do as I say not as I do.’ ”

Rep. Margaret Good, a Democrat from Sarasota, said she wasn’t worried about getting sick, she was worried about catching the virus, not showing symptoms and then spreading it to elders in her community.

“The only way we can make a difference right now is slowing the spread of this virus and the way you slow the spread is by limiting your social contact,’’ she said. “I’m trying to lead by example.”

Rep. Joe Geller, an Aventura Democrat, said he will not be attending because at age 66, and with three health risk factors, he considers himself vulnerable. But he tried and failed to get House leaders to consider teleconferencing him in to vote long-distance.

“I want to cast a vote,’’ he said.

Rep. Evan Jenne, a Dania Beach Democrat who lives miles from Port Everglades, which has spawned the state’s first cluster of cases, said he hopes precautions are taken when lawmakers arrive.

“Should someone be meeting me at the door with a high-grade mask’’ he asked, “so we don’t’ come up there and spread this further?”

Senate Democratic Leader Audrey Gibson of Jacksonville said she was confident in the decision to come back and was satisfied with the work-arounds the Senate has prepared.

Submitting comments

To decrease the amount of time for debate on the budget, members will be allowed to submit budget statements that would be included in the permanent record of the Senate Journal. At least four members have told her they will stay home, she said.

Oliva and Gibson both conceded they may have to come back later this year for a special session to deal with the economic consequences of the crisis.

“It’s too early to tell, but if you look at the effects on the economy, and the limiting nature of the unprecedented steps that have to be taken in the tourist and hospitality sector ... there is a better than good chance that some adjustment to the budget may be necessary,’’ Oliva said.

“We hope there is still enough time for the economy to rebound, but chances are we’ll be back.”

Gibson added, that “if by some chance this things spreads more and more and we couldn’t get back, there is spending authority” in the 2020-21 budget to give the governor access to the state’s budget reserves, if needed.

Democrats also noted that the budget is a decision that the Democratic caucus doesn’t take a position on but this year it is not likely to get much opposition.

“I respect that everybody is trying to do their best here,’’ said Geller. “There is no bad actor here, except the virus. We’re all doing the best we can to do the people’s work.”

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