How a good intention made the Alabama Legislature less democratic

  Alabama government has many features aimed at thwarting popular will. 

  There’s gerrymandering. And the centralized nature of state government. With most state power concentrated around Goat Hill, it’s much easier for entrenched interests to influence policy. 

  But few of these features are so on-the-nose with their anti-democratic nature as a unique part of the Alabama legislative process, known as budget isolation. 

  Now, even if you slept through your civics or social studies classes, you know that majority rule is a foundation of democracy. 

  Want to get elected? In a two-party race, you need 51% of voters to support you. Want to pass a bill? Get a majority of lawmakers behind it. Win at the U.S. Supreme Court? 5 out of 9 justices need to agree with you. 

  Yes, the Electoral College and the U.S. Senate are powerful counterweights than can and do thwart majority preferences. But that’s the basic rule: get 50% plus one vote, and you get what you seek. 

  We can turn to Alexis de Tocqueville, political philosopher and one-time Alabama tourist, writing in 1835: “The very essence of democratic government consists in the absolute sovereignty of the majority.” And a little further down: “The legislature is, of all political institutions, the one which is most easily swayed by the will of the majority.”

  Except that’s not how it works in this state’s legislature. 

  To have any chance of passage, most bills filed in the Alabama House or Senate need the support of at least 60% of those present and voting.

  Why?

  Back in 1981, then-Gov. Fob James threw his weight behind an idea called “budget isolation.” The Alabama Legislature had developed a habit of delaying passage of the state’s two budgets — its only constitutional duty — until the final hours of a legislative session. 

  It led to sloppy or incomplete funding frameworks. Or it meant the legislature didn’t pass a budget at all, requiring special sessions. That made it difficult for school districts to hire teachers. In 1971, after missing a budget deadline, Alabama had to take out loans to pay state employees. 

  Budget isolation aimed to ensure that the budgets got approved on time. It took a few years, but under a constitutional amendment approved in 1984, Alabama legislators are technically forbidden from taking up any bill before the budgets pass. 

  The intent was good. The state budgets are critical, and legislators ought to make them a priority. 

  But it’s impossible to make the budgets the first order of business. 

  Budgets are complicated, allocating billions of dollars to dozens of programs and agencies. Work on the documents begins months before the legislature gavels in. The governor’s office has a host of meetings with agencies to come up with a proposal. Legislators get the proposal and wrangle with constituents, lobbyists, officials, and each other.

  Doing all that in the minimum five days required to pass a bill would be a hectic, rushed process likely to result in a messy end. Final budget approval rarely occurs before the final days of a session.

  So practically speaking, nearly every bill the legislature considers comes up before the budgets, which means nearly every bill is subject to a budget isolation resolution (known as the BIR). 

  The BIR allows bills to come up before the budgets. But a BIR needs the approval of 60% of those present and voting. If a bill gets that support, it moves to a floor vote. If it doesn’t — even if 51% of the chamber supports it — it can be considered dead for the session. (This doesn’t apply in special sessions that don’t take up budget issues.) 

  If this sounds horribly undemocratic to you, well, it is. A bill can have the support of 53 of the House’s 105 members, and that won’t matter because the BIR raises the practical threshold to 63 affirmative votes, with all members voting. 

  The BIR has been particularly fatal for gambling legislation. There have been majorities in the House for state lottery bills, but never enough to make it past the BIR. A 2019 proposal missed the BIR margin in the House by a single vote. 

  This doesn’t serve Alabamians well. But it does make it easier for entrenched interests to kill legislation they don’t like. 

One small step

  The legislature took a very small step toward a more democratic version in this month’s special session. Both chambers approved a constitutional amendment sponsored by Sen. Clyde Chambliss (R-Prattville) that would remove the BIR requirement from local bills, or bills limited to a particular city or county.

  The amendment needs voter approval in the March 5 primary. Local bills rarely fail their BIRs — anyone who tries to mess with a legislator’s local legislation has made an enemy for life — but it’s better to get rid of the possibility. 

  Losing the BIR on other bills will be tougher. It’s too useful to those wanting to control the process. 

  And that’s a problem. As long as we’re not talking about restricting fundamental civil or human rights, the Alabama Legislature should be a majoritarian body, run on basic democratic principles. Budget isolation is a failed experiment that hurts the process. It mutes the voices of voters still further. 

  But I’ll take the removal of the BIR from local bills for now. Our state’s lawmakers seem ready to take a tiny but bold step into 1835. 

  About the author: Brian Lyman is the editor of Alabama Reflector. He has covered Alabama politics since 2006, and worked at the Montgomery Advertiser, the Press-Register, and The Anniston Star. His work has won awards from the Associated Press Managing Editors, the Alabama Press Association, and the Robert F. Kennedy Center for Human Rights.

  This article was published by Alabama Reflector.