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  • Writer's pictureMarc Johnson

A Curious, Old Rule


The Idaho Legislature convenes today and will no doubt live up to its reputation for the next 100 days or more as one of the most, if not the most, conservative legislature in the country.

It has always been a curiosity to me that such a fundamentally conservative public institution would maintain a one-off system that allows elected legislators to appoint “temporary” replacements. It is a system unlike any other in the country.

As the legislature convenes today in Boise two of these “temporary” lawmakers, elected by no one other than the person they are filling in for, are full-blown legislators with all the power and responsibility that goes with the job. The two temps are sitting in for legislators who are laid up for health reasons.

A check with the non-partisan National Conference of State Legislatures confirms that no other state has such a provision. Several states, Washington and Louisiana for example, have guidelines for how a legislator can be replaced when military service is involved, but no other state allows a legislator on their own motion to designate a replacement. In the 2013 session in Oregon, for example, a very senior state senator was seriously injured in an automobile accident and missed weeks of the session as a result. Her seat, as would be in the case in the U.S. Congress, just sat empty. That is not how it works in Idaho.

At least one time that I know of the “temporary” legislator rule dramatically impacted a legislative session. That was in 1994 and then-Gov. Cecil D. Andrus had vetoed a bill that was designed to extend a tax exemption for ethanol fuel manufacturers. The governor thought the exemption had outlived its usefulness, primarily benefited one producer and took needed tax revenue from the state’s general fund. Under normal circumstances, given the partisan makeup of the legislature at the time, the Democratic governor had the votes in the state senate to sustain his veto. There was, however, no margin for error. If even one Democratic lawmaker voted with the Republican majority to override a veto the contested legislation would become law.

Bannock County was represented in the state senate at that time by a old-time Democrat from Pocatello named Mary Ellen Lloyd, who normally could be counted on to vote to sustain a gubernatorial veto. Rumors made it back to the second floor office of the governor to the effect that Sen. Lloyd might be wavering on the ethanol legislation. The Simplot Company, who benefited most from the exemption, had a big presence in Pocatello and the local senator might be swayed by that calculation. The governor wanted to confirm that Sen. Lloyd would in fact stick with him and their subsequent conversation convinced him that she would vote with Democrats to sustain his veto. Enter the temporary legislator rule.

We will likely never know the full story, but for whatever reason Sen. Lloyd used the temporary appointment rule to name a replacement – a former Democratic state senator and Idaho labor leader Robert Kinghorn – to fill her chair on the day of the override vote. Kinghorn, who also just happened to be Sen. Lloyd’s brother, then broke ranks with every other Democrat in the senate and cast his very temporary, but also very real vote with majority Republicans to override the Andrus veto. It was the only veto – he had 114 total in his 14-plus years as governor – that Andrus ever had overturned.

It was a crafty (or underhanded if you prefer) bit of parliamentary gamesmanship. Sen. Lloyd could keep her commitment not to buck the governor, but she could still engineer a veto override. I’ll let you speculate on the motives, but its likely none of the games would have been played had the temporary legislator rule not been an option.

I’m not sure there has been another case where one Idaho legislator with the ability to appoint their own replacement has so obviously impacted a legislative outcome, but you can see that the curious, old rule retains an ability to be abused. It’s worth noting that both parties use the rule frequently and I suspect most of the time for good reasons like illness, but once in a while the temporary legislator fills in because a lawmaker wants to take a trip or even desires to reward a political supporter with a couple of days under the dome.

It is an odd system for a state that prides itself on operating in such a buttoned-down, conservative way. There is not much conservative about an elected official having the exclusive power to name a “temporary” replacement whenever and for whatever reason they alone deem appropriate.

P.S.: There is an old saying in politics that no road is so long it doesn’t have a bend. Some years later Sen. Lloyd campaigned to become the full-time county clerk in Bannock County. She lost in a Democratic primary when the governor whose veto she had undone backed her opponent. That is what you call, to use another political saying, not getting mad, but getting even.

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