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Idaho's longest-ever legislative session notches some big accomplishments, plus missed opportunities

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BOISE — This year’s Idaho legislative session, the longest in state history, was marked by dissension and bitter debates over hot-button issues, yet it yielded some startlingly major accomplishments — including the biggest transportation infrastructure investment in state history — along with a slew of missed opportunities.

“Despite a lot of noise, distractions, and of course the unfortunate, unprecedented duration of this year’s legislative session, we were able to act on the issues that matter most in the day-to-day lives of the people we serve,” Gov. Brad Little said in a May 19 statement.

House Minority Leader Ilana Rubel, D-Boise, had a much different take.

“Never has it been more clear that there is a total disconnect between the agenda of the Republican politicians running this Statehouse and the majority of Idahoans, regardless of their party,” she said. “Idahoans value education, and they wanted meaningful property tax help. And that is the opposite of what GOP leadership delivered this session.”

Supermajority Republican lawmakers spent much of the record 122-day session rehashing splits with GOP Gov. Brad Little over his handling of the COVID-19 pandemic and debating cutting education funding — the Legislature’s main charge under the Idaho Constitution — due to what turned out to be unfounded reports of “indoctrination” of students into a leftist agenda at Boise State University.

An investigation released recently showed a report of a BSU student being harassed over race during a class was entirely unfounded, turning up no evidence of any such incident. “No student specifically raised concerns about being indoctrinated or being instructed on the tenets of ‘critical race theory,’” the investigation found; it was conducted by the Hawley Troxell law firm.

Nevertheless, lawmakers cut $2.5 million from the higher education budget over the concerns during this year’s session, including a $1.5 million cut specifically for BSU.

The state was awash in cash, with a record budget surplus building amid far better than expected economic performance coming out of the pandemic, even as hundreds of millions in federal aid flowed out to states including Idaho.

That led to a buildup of the largest rainy-day funds ever in state history — lawmakers even lifted the cap on the state’s main rainy-day fund, the Budget Stabilization Fund, from 10 percent of the state general fund budget up to 15 percent.

Among the missed opportunities were:

• Failure to address a widespread outcry across the state for property tax relief, particularly for homeowners in the state’s fastest-growing communities.

• No move to invest in funding for optional full-day kindergarten in every Idaho school district, despite near-universal support and a rare opportunity to commit millions in ongoing funding from the general fund due to the state’s unprecedented revenue position.

• No consideration of lifting the state’s 6 percent sales tax from groceries, or raising the income tax credit that offsets that for residents.

Lawmakers also allowed tens of millions in federal aid to go unclaimed. That included $40 million for voluntary COVID-19 testing in Idaho’s public and private schools next year, which the House rejected in an unprecedented move, along with numerous other federal aid proposals.

Rep. Barbara Ehardt, R-Idaho Falls, read the House a message from a constituent who said her son had to quarantine at home for 10 days three times because he was exposed to someone at school who tested positive positive for COVID-19; she opposed the testing funds.

“It’s not getting them back to school, it’s finding reasons to keep them out,” she said.

Rep. Tammy Nichols, R-Middleton, speaks during a press conference on Wednesday, May 12, 2021, at the Idaho State Capitol Building in Boise.

Rep. Tammy Nichols, R-Middleton, claimed during the same debate, “It’s been proven time and time again scientifically that children are not carriers.” Actually, state figures at the time showed 20,893 COVID-19 infections among children under 18 in Idaho; as of Friday, that had risen to 21,749, including 26 child cases of multi-system inflammatory syndrome, a rare but very serious complication of COVID-19 that forced one Idaho teen to undergo a heart transplant.

Rubel said, “Our colleagues across the aisle put wild conspiracy theories above facts.”

Here’s a rundown of some of the highlights, and perhaps lowlights, of this year’s Idaho legislative session:

HEMP LEGALIZATION

After fighting over this for years — and rejecting it for two straight years despite strong support from the state’s farmers — lawmakers this year agreed to legalize the production and transportation of industrial hemp, which lacks the intoxicating effects of its more potent cousin, marijuana. That made Idaho the very last state to do so; industrial hemp was legalized at the federal level under the 2018 Farm Bill passed by Congress.

Idaho law previously made no distinction between industrial hemp and marijuana. As a result, the state has arrested several truck drivers hauling loads of industrial hemp through Idaho and threatened them with drug trafficking charges that carry mandatory minimum prison terms.

TRANSPORTATION

Lawmakers approved a major increase in transportation funding, passing legislation that more than quadruples the amount of state sales tax revenues to be shifted from the state’s general fund to road and bridge projects, from 1 to 4.5 percent each year. The successful legislation guarantees an $80 million annual funding stream to the Idaho Transportation Department that can be used to bond for $1.6 billion in major road and bridge projects over the next 20 years. Idaho governors have sought this kind of major boost for decades; a Boise State University study last summer found Idaho needed to spend $241.8 million more a year just to maintain its current transportation system as-is.

As the state’s sales tax revenues continue to grow in future years, all funds over the $80 million mark from the 4.5 percent annual shift will go to local highway jurisdictions for local road and bridge improvements.

House Speaker Scott Bedke, R-Oakley, counted the transportation bill among the session’s top accomplishments, along with tax cuts and emergency powers legislation. Little noted that it boosted transportation funding without raising taxes.

EDUCATION FUNDING

Education funding debates in this year’s session were marked by claims, fanned by the Idaho Freedom Foundation, that Idaho’s schools, colleges and even early childhood education programs were indoctrinating the state’s children into “woke-ism” or a leftist or “Marxist” agenda, despite a dearth of evidence. The concerns prompted the House to kill the main public school budget to fund teachers, only later passing it after an additional law passed banning child indoctrination in schools and colleges, including through “critical race theory.” The higher education budget suffered the same fate, but when the new version returned, it contained a $2.5 million cut aimed at removing funding for “social justice programming,” $1.5 million of the cut specific to Boise State University.

A $6 million federal grant approved by the Trump administration to help 15 local collaboratives around the state focus on improving early learning was killed in the House, and when a new version passed the Senate that included “sideboards” preventing any dictating of curriculum, the House allowed it to die without a vote.

The public schools budget did include a 3.8 percent boost in general funds, plus millions more from federal aid; it restored teacher raises cut last year due to concerns over the pandemic’s impact on state revenues, which in the end proved unfounded.

INFRASTRUCTURE INVESTMENTS

Little pressed his “Building Idaho’s Future” initiative to boost infrastructure investments on everything from roads to water projects to broadband, drawing on $35 million in federal aid funds and also tapping $330 million in state funds trimmed from the budget last year in anticipation of revenue drops. The one-time spending included $50 million for water projects; nearly $50 million for broadband; and $20 million for summer reading programs for young students who lost ground during the pandemic.

INITIATIVE LAW CHANGES

Two years after Little vetoed even more far-reaching anti-initiative legislation, lawmakers passed SB 1110 and Little signed it into law. It ups the signature requirements to qualify any voter initiative or referendum for the Idaho ballot from 6 percent of registered voters in 18 of the state’s 35 legislative districts, to 6 percent of the registered voters in all 35 legislative districts. Two lawsuits already are pending with the Idaho Supreme Court, charging that the legislation unconstitutionally makes it impossible for Idahoans to exercise their right to initiative and referendum, which has been guaranteed to them in the Idaho Constitution since 1912.

EMERGENCY POWERS

Lawmakers and the governor feuded openly over pandemic-driven moves to pare back the governor’s emergency powers and enlarge the role of the state Legislature in disaster emergencies. Little vetoed two major bills, joined by every living former Idaho governor, calling the changes dangerous to Idahoans and unconstitutional. But when lawmakers passed four watered-down versions late in their session, he signed all four into law. Among other things, they forbid the governor from making any changes to Idaho laws during a state of emergency; forbid suspending of constitutional rights; and end “extreme peril” declarations after 90 days unless the Legislature convenes and extends them.

“There’s a role for the Legislature,” said Senate Presidsent Pro Tem Chuck Winder, R-Boise, who made emergency-powers legislation a top priority for the session. “There’s a role for the representatives of the people to be involved in this process when you have ongoing emergencies.”

CHILD CARE

With Idaho’s child care industry in crisis due to the pandemic, losing a quarter of its child care providers in the state, the House waited until May 4 to pass long-stalled legislation authorizing the state to spend $140 million in federal aid for child care in Idaho, including $104 million to stabilize the struggling industry both this year and next year, and $36 million for block grants to support programs that support kids age 5-13 such as the Boys & Girls Club, 4-H and the YMCA.

Additional federal aid funds awarded for future years drew no legislative action, though they could be taken up next year. The aid bills finally moved after concerned child care providers and parents, many with babies, toddlers or young kids in tow, filled the Capitol rotunda and gathered with strollers on the Capitol steps a day earlier to urge lawmakers to approve the funds. Day care centers across the Treasure Valley closed for the day to focus on getting the message to lawmakers. All three bills were signed into law.

SOCIAL ISSUESTAXES

The Legislature approved the biggest income tax cut in state history, slashing tax rates for individuals and corporations from a top rate of 6.925 percent to 6.5 percent while also reducing tax brackets from seven to five, and also funding a $220 million one-time tax rebate for every Idaho taxpayer who filed a state return in 2019. The rate changes will cut state general fund revenue by $163 million a year permanently.

Rep. Mike Moyle, R-Star, speaks on the House floor during a legislative session on Wednesday, May 12, 2021, at the Idaho State Capitol Buildin…

Many lawmakers had come to this year’s session with property tax relief as a top focus, but numerous bills to address a growing shift in the property tax burden onto the state’s homeowners, particularly in fast-growing communities, weren’t allowed hearings by House GOP leaders. In a three-day period at the end of the session, House Majority Leader Mike Moyle, R-Star, introduced HB 389 and it passed both houses, enacting a conglomeration of property tax changes, from a 25 percent increase in the homeowner’s exemption to big new tax breaks for businesses and developers to budget limits for fast-growing cities around the state. Local government leaders blasted the bill, saying it would prevent growth from paying for itself, but Little signed it into law.

ETHICS

A freshman state representative from Lewiston faced an ethics inquiry after a 19-year-old legislative intern charged that he raped her after a dinner date; Rep. Aaron von Ehlinger, 38, acknowledged sexual contact but claimed it was consensual. The House Ethics Committee unanimously recommended he be charged with “conduct unbecoming” a state representative, and be suspended from office without pay or benefits for the remainder of his two-year term. Von Ehlinger resigned before the full House could vote on the committee recommendation.

Several GOP lawmakers supported von Ehlinger and testified in his favor at the ethics hearing, including Rep. Priscilla Giddings, R-White Bird, who twice sent out links to a far-right blog post containing the intern’s name, photo, and personal information, and calling the incident a “blatant liberal smear job,” in constituent newsletters and on her Facebook page. Giddings then faced calls for an ethics inquiry into her conduct, though nothing developed before the session essentially ended on May 12.

GOVERNMENT FUNCTIONS

The reason the session essentially, rather than certainly, ended on May 12 was that the Idaho House refused to adjourn sine die, or “without a day,” as it always does at the end of the legislative session. Instead, the House opted to recess indefinitely to any time between then and Dec. 31, while the Senate adjourned sine die. The Idaho Attorney General’s office issued a legal opinion saying it interpreted the unprecedented move as resulting in both houses recessing; but former Idaho Attorney General Jim Jones, a former chief justice of the Idaho Supreme Court, reached the opposite conclusion, opining that the move meant both houses effectively were adjourned sine die. The Idaho Constitution doesn’t let one house adjourn for more than three days without the consent of the other house; the House consented to letting the Senate adjourn sine die.

Lawmakers also faced a possible government shutdown when the next fiscal year starts July 1 after their session ran so long that it would have conflicted with the Idaho Constitution’s requirement that new legislation, including budgets, not take effect until 60 days after lawmakers adjourn sine die. That forced lawmakers to pass a lengthy, last-minute bill that added emergency clauses to every bill that had already passed this year, more than 200 bills in total.

All those machinations were aimed at lawmakers’ desire to be able to return for a special session at any time without waiting for the governor to reconvene them; the Idaho Constitution allows only the governor to call a special session of the Legislature, and also allows him to restrict its topics. Both houses passed a proposed constitutional amendment, which will go to voters in the November 2022 general election, to change the Constitution to let lawmakers call themselves back into session whenever 60 percent of the members of each house want to, with no limit on session length or frequency.

The Legislature also failed to enact the so-called “drop-dead bill” extending all state administrative rules at the end of the session, forcing, for the third straight year, re-promulgation of thousands of pages of rules, all of which will again return to lawmakers for review next January.

Yet, despite failing to accomplish those basic functions, the Legislature did fulfill its constitutionally required duties this year, setting a balanced budget for the state, including funding schools. Lawmakers also approved three badly needed new judges for Canyon County, including one district judge and two magistrates; and authorized more than $90 million in state building and facility maintenance and repair work.

Bedke said, “I think we did pretty good against the backdrop of the pandemic. There was a lot of uncertainty, and it just added to the length of the session.” He noted that if the 18-day recess were subtracted from the session’s length, it wouldn’t be the longest-ever; it’d rank as the 3rd-longest in state history.

Boise State University political scientist Jaclyn Kettler said she was struck by how much of the session was devoted to “pulling for power,” whether against the executive branch, against voter-driven initiatives, or against other government officials in the state. Bills that got much debate, though they eventually failed, sought to insert lawmakers into local government decisions on renaming of streets and purchasing local public art; and to authorize all state agencies to hire private attorneys at state expense rather than use the services of the state’s chief legal officer, the Idaho Attorney General. Lawmakers also hired their own private attorneys, and allocated $4 million in taxpayer funds this year to their own Legislative Legal Defense Fund for that purpose.

“Some of this goes back to core legislative debates on who should have authority,” Kettler said. “I’m really curious over whether this is a unique session, or whether these are things we’re going to continue to see into the future.”

Betsy Z. Russell is the Boise bureau chief and state capitol reporter for the Idaho Press and Adams Publishing Group. Follow her on Twitter at @BetsyZRussell.