Major conservative groups backed by some of the Republican Party’s wealthiest donors appear to be helping fuel a massive GOP state legislative push to limit the emergency executive powers governors across the country have wielded in an effort to combat the nation’s COVID-19 crisis.
For months, Republican legislators in several states have pushed bills to limit such powers, which have been used to implement restrictions on businesses, restaurants and public gatherings, as well as measures meant to slow the spread of the virus that has killed more than 450,000 Americans.
The legislative efforts have intensified over the first few weeks of 2021 as lawmakers in many states ― particularly those with part-time legislatures that ended their sessions in the earliest stages of the pandemic last year ― have returned to state capitals vowing to rein in governors they believe have overstepped their bounds. Lawmakers in more than two dozen states have now introduced bills to curb executive powers to declare or extend states of emergencies, which all 50 states have done during the public health crisis.
Many of the bills proceeding in those states and others appear to be based at least partially on model legislation proposed by the American Legislative Exchange Council, an organization of thousands of state legislators and deep-pocketed corporate interests that has for years helped push conservative policy priorities on the state level, a HuffPost analysis of the bills found.
Republicans in states including Kentucky and Pennsylvania, both of which have already passed legislation to curb the executive powers of their Democratic governors, have insisted that they have pursued such measures to help constituents who are angry over business closures and other mandates. But the similarities in the bills going forward in various states and ALEC’s own proposal are the latest suggestion that supposedly fervent opposition to COVID-19 restrictions and the governors who have implemented them is an organized effort to create the guise of grassroots anger and help justify the passage of conservative legislative proposals nationwide.
For much of the coronavirus pandemic, a majority of Americans have supported restrictions like mask mandates and business closures, and especially in its early months, governors who took more aggressive approaches to the virus and the measures implemented to stop it earned higher marks from the public than lawmakers who were more lax. Lawmakers from both parties benefited: Kentucky Gov. Andy Beshear, a Democrat, and Ohio Gov. Mike DeWine, a Republican, both saw their approval ratings jump because of their handling of the outbreak.
But ALEC, as the organization is known, nevertheless began targeting governors’ pandemic powers as early as last summer, when it first drafted its model bill as then-President Donald Trump and other GOP lawmakers were fuming over pandemic-related restrictions.
Since then, Republican lawmakers in at least nine states ― Arizona, Idaho, Kentucky, Montana, North Dakota, Pennsylvania, Utah, Virginia and Washington ― have introduced legislation that appears to be modeled on ALEC’s proposal. In some cases, the legislation uses language that is almost verbatim to ALEC’s model bill.
Fights between governors and legislatures have touched off political power struggles across the nation at a time when a holiday surge in infections and deaths appears to be waning and the availability of multiple vaccines has provided the first real glint of hope that the end of the pandemic may be in sight. Despite improving signs, public health experts still warn that the recent progress is fragile and that the death toll could grow substantially in the coming months if restrictions are eased too soon.
“It appears that we’re just getting ahead of the disease for the first time,” said Dr. Georges Benjamin, executive director of the American Public Health Association. “The biggest mistake policymakers can make is changing the policy before we’ve won the war. Pulling up and retreating when you have the enemy on the run would be a bad, bad strategy. At the end of the day, what they’re doing is setting up a situation where more people will die.”
Substantially Similar Language
Disaster declarations were the first major weapon governors deployed against the pandemic, and April marked the first time in American history that all 50 states had simultaneously declared a state of emergency. That status gave governors broader powers to implement restrictions, and in most states, they have been maintained or repeatedly extended throughout the pandemic. As a result, governors’ ability to maintain that status has become the main focus of conservative lawmakers nationwide.
In all nine states HuffPost analyzed, bills have adopted a major proposal from ALEC’s draft legislation: A specific time limit on states of emergency declared by governors alone. ALEC’s model suggests that limit should be 30 days, after which governors would have to seek legislative approval to extend an emergency declaration.
The bills Kentucky Republicans passed last month adopt that timeline, as do legislative proposals in Arizona, Idaho and Utah. Bills introduced in Washington and Virginia, where they are unlikely to proceed in Democratic legislatures, seek to limit emergency declarations to 30 days as well. Kentucky Gov. Andy Beshear, a Democrat, blocked two bills Republican passed to limit his powers in January, but the GOP legislature overrode his vetoes this week, drawing a lawsuit from Beshear in response.
Pennsylvania’s bill is even more restrictive, limiting emergency declarations to 21 days, while proposals in Montana and North Dakota place 60-day limitations on executive authority to declare an emergency.
The bills almost universally adopt another ALEC proposal meant to keep governors from working their way around the new restrictions: a provision that prevents governors from issuing new orders that are “substantially similar to the one that expired” unless legislatures approve them. The bills that have advanced in Kentucky and Pennsylvania adopt that language almost exactly, as do proposed bills in Montana, Arizona and Washington.
“The Governor shall not declare a new emergency or continue to implement any of the powers enumerated in this chapter based upon the same or substantially similar facts and circumstances as the original declaration or implementation without the prior approval of the General Assembly,” Kentucky Senate Bill 1 reads.
Pennsylvania’s Senate Bill 2, which could pass the state legislature this month, says that “the Governor may not issue a new disaster emergency declaration based upon the same or substantially similar facts and circumstances without the passage of a concurrent resolution of the General Assembly expressly approving the new disaster emergency declaration.”
Legislative proposals in Idaho, North Dakota and Utah include similar provisions written in slightly different language.
An ALEC spokesperson did not respond to a request for comment or answer questions about whether it had worked with legislators to develop and implement legislation targeting executive powers.
ALEC has not shied away from its longstanding efforts to advance conservative legislative proposals through similar processes during the pandemic: Last May, it began circulating model legislation that would protect businesses from any liabilities related to the pandemic, mirroring the effort by Senate Majority Leader Mitch McConnell (R-Ky.) on the federal level.
By then, ALEC had joined FreedomWorks, Tea Party Patriots and other conservative groups in forming the Save Our Country Coalition, which aimed “to educate and inform elected officials and policymakers at all levels of government in an effort to bring about a quick, safe and responsible reopening of US society.” Led by Arthur Laffer, an archconservative economist, and former Club for Growth leader Stephen Moore, the group was among the loudest champions of lifting COVID-19 restrictions to “immediately reopen the economy.”
The coalition, however, signaled its primary intent in the announcement of its founding: It wanted to weaponize concerns about the national debt, “limited government” and “fiscal responsibility” to push an agenda that would ultimately “incentivize the rapid rebuilding of our economy through proven formulas: tax cuts, deregulation, and lawsuit reform.” It would do it by pushing Americans across the country to “get in touch with elected officials at all levels of government,” FreedomWorks President Adam Brandon said in a statement at the time.
The coalition also helped foment protests against such restrictions outside state capitols across the country, The New York Times reported in April, and the staff at FreedomWorks, in particular, focused almost entirely on pushing the effort. The demonstrations did not reflect public opinion, but they helped provide cover for Republican lawmakers who were seeking to challenge and roll back pandemic measures.
Save Our Country was, in essence, Tea Party 2.0: Pandemic Edition ― a push to advance business-friendly conservative priorities by pretending they reflected the major concerns of the crisis-stricken masses. Early in the pandemic, Laffer and Moore revived conservative tropes about government assistance making people lazy to argue against Congress’s initial economic assistance package.
GOP legislatures in North Carolina, Wisconsin, Michigan and Kansas began pushing to limit executive emergency powers almost as soon as the pandemic began. And over the summer, ALEC appears to have begun pushing the effort to other states. In a July draft statement of principles, it declared that “open-ended declarations of emergency” had “undercut legislative authority” and “led to gubernatorial overreach that has exacted a significant economic cost to individuals and commerce,” arguments that quickly became talking points for Republicans across the states.
That month, ALEC also hosted a panel discussion on “outdated emergency management,” the Center for Media and Democracy reported. Mississippi House Speaker Phillip Gunn, ALEC’s national chairman at the time, led a talk that included legislative leaders from Wisconsin, Utah, Arizona and South Dakota.
Whether ALEC led the effort or drew inspiration from ongoing fights isn’t clear: The same week it posted its draft legislation, Pennsylvania’s Republican legislature passed its first bill to limit Gov. Tom Wolf’s (D) pandemic powers. (In order to protect from Wolf’s eventual veto, the GOP proposed the legislation as an amendment to the state constitution, which would require that it pass in two consecutive legislative sessions and then win a ballot referendum.)
But the effort spread quickly after that. Kentucky lawmakers ramped up their rhetoric about limiting Beshear’s powers in July after Republican Attorney General Daniel Cameron sued to invalidate the governor’s mask mandate. In the Bluegrass State, FreedomWorks had also been pushing the idea that Beshear had gone too far in implementing COVID-19 restrictions for months.
The earliest attempts to limit gubernatorial powers felt distinctly partisan, especially to the governors involved: Most were Democrats in states where the GOP held majority control of the state legislature. When Kentucky Republicans finally launched their legislative effort to strip Beshear’s powers in January, the chairman of the state’s Democratic Party blasted them for engaging in “petty partisan attacks” and objecting to “lifesaving recommendations and actions because they have no other agenda than to fight this governor.”
Pulling The Party Right
But not long after ALEC drafted its model bill, GOP lawmakers began hinting that they’d go after governors from their own party, too.
Utah Senate President Stuart Adams, who participated in the July ALEC panel and is now the group’s chairman, suggested in October that his legislature would consider limiting Republican Gov. Gary Herbert’s powers, and Utah Republicans are currently considering such legislation. (Herbert’s term ended last month.)
Republican governors in Arizona, Ohio, North Dakota, Idaho, Montana and other states have also found themselves facing challenges to their executive powers. In Gunn’s Mississippi, Republicans voted to strip GOP Gov. Tate Reeves of his authority to spend nearly $2 billion in pandemic aid from Congress.
Republican governors who’ve refused to fully buy into conservative conspiracies around the 2020 election and the pandemic may even face primary challenges the next time they run, suggesting that ALEC and other conservative groups have once again helped spark an intra-party race to the right, all while they potentially exacerbate a public health crisis.
“Republican divisions go beyond wild conspiracy theories and primary politics,” said David Turner, a spokesperson for the Democratic Governors Association, which has pushed back against GOP efforts to target its elected executives. “Now, it’s affecting the ability of governors to protect the lives of their constituents. If you wanted evidence the GOP base is living on an entirely different planet, it couldn’t be clearer than this.”
Republicans, however, continue to insist that this is a fight to protect the power of the legislatures they control: Emergency powers, GOP lawmakers in Pennsylvania and Kentucky have told HuffPost, were never intended to be wielded for crises that last this long. They have argued that no single lawmaker should have this much power and that they are trying to ensure legislatures maintain a voice in the process.
Governors from both parties are “using their executive powers to levels that have never been done before,” said Pennsylvania state Senate President Pro Tem Jake Corman (R). “Obviously this pandemic has taught us a lot, and it really isn’t about the pandemic itself. It’s about separation of powers and should the executive have this much authority and power for this extended period of time.”
Like his party mates in Kentucky, Corman argued that the GOP’s efforts to limit executive powers in Pennsylvania were meant to foster more communication with legislators.
But health experts like Benjamin are skeptical that most governors have wielded their authority improperly and are fearful that hasty attempts to limit emergency powers now will worsen both this crisis and the next one. Instead, he suggested that legislatures and governors wait until after the pandemic is fully over to reassess how those powers were used and whether they should be altered.
“It is their right to review this,” Benjamin said. “But they ought not do it without a real thoughtful review of the pros and cons, and not do it because... they’re mad at a particular governor or mayor because they shut down the economy.”
“This is not the last disease outbreak we’re going to have,” he said. “The more you weaken the authority of public health officials to do this kind of stuff, the more they weaken the ability to govern, and to protect the public.”
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