Civics of the Utah Legislature, part 1: Rule by consensus

Written by Derek Monson

January 21, 2022

The Utah Legislature began its 2022 general legislative session this week. The kickoff of another round of legislative policymaking offers Utahns the opportunity to better understand the civics of state representative government. Sutherland will be writing a series of weekly blog posts to that end.

One of the first things to note about the legislative session is how it its design attempts to produce representative government. The terms “majority rule” or “minority rule” get thrown around a lot in politics today. Opinion writers in Utah and nationally, for instance, have recently offered criticism of “minority rule” at the state and federal levels and voiced their support for “majority rule.”

But Utah’s state constitution, like the U.S. Constitution, designed the state legislature to create what we might call consensus rule, or a general public agreement about our laws and public policies. The differences between consensus rule and majority rule are subtle, but they are important and have significant consequences.

To see this, consider the level of support that a proposed policy must achieve to become a law. First, the idea must be of sufficient weight along some measure – policy merit, political relevance, electoral value, social or economic outcome, etc. – to entice a lawmaker and supporting coalition (often made up of lobbyists) to put forward legislation about it. It also must be of sufficient weight to motivate a lawmaker to prioritize it among the many other pieces of legislation she is running, so that the legislation gets written quickly enough to be considered during the 45-day legislative session. Then it must be of sufficient weight to garner support from a majority of the lawmakers assigned to focus on the relevant overarching policy area (a legislative standing committee). 

Next it must be of sufficient weight to gather the support of a majority of lawmakers from across the state who are elected in the same manner as the sponsoring legislator (elected every two years for state representatives, and every four years for state senators). Then it must be of sufficient weight to do the same among a majority of lawmakers across Utah elected in a different manner from the sponsoring legislator.

The policy idea must also be of sufficient weight to convince a governor elected by all participating Utah voters to at least not oppose it, or to convince a super-majority of lawmakers to override the veto of the governor if he/she does oppose it. Finally, it has to be of sufficient weight that it either: (1) does not provoke a significant minority of voters into signing a referendum petition that would require the legislatively enacted law to be approved by voters in a general election, or (2) persuades a majority of voters in a general election referendum to vote to keep the new law on the books. 

Each of these steps requires sufficient support – or at least a lack of opposition – from a range of economic, political, ideological and/or partisan interests to be successful. This most often requires various interests to bargain or compromise with one another to gain the support needed to enact new state laws and policies.

There are many opportunities for a policy idea to fail to get all the way through the policymaking process. As a result, of the more than 1,000 requests for legislation made by Utah lawmakers each year (known as “bill files”), only around 700 reach a stage where they can even be looked at by legislators during the legislative session, and typically 450-550 pass the state Legislature. Due to this reality, most policy ideas that become law only do so by achieving a significant level of consensus support from a range of political, advocacy, economic and ideological groups.

The consensus required for legislation to become law often means that new legislatively enacted laws are supported by a majority of Utah voters. But sometimes this is not the case. That can lead to unpopular laws or – in cases that motivate significant organizing and fundraising efforts – a ballot initiative to change a particular law.

Laws like these often draw the attention (and the ire) of news and social media. The disproportionate media attention they draw belies the fact that they amount to a small fraction of the hundreds of new laws that get enacted every year. This ratio of controversial to non-controversial laws points back to how well our state policymaking process does, on average, at generating broadly accepted consensus.

Consensus rule is how Utah’s system of legislative lawmaking is designed to work. It is a feature, not a bug, of our governing system. That feature of our system is exactly why policymaking completely breaks down when – as is currently the case in Washington, D.C. – political and partisan trends turn against the idea of compromise between different or opposing interests to achieve consensus. 

That our state lawmakers have not entirely succumbed to the poisonous politics ravaging Congress is an encouraging commentary on the civic health of representative government in Utah. But it can only remain that way if the people of Utah – including its lawmakers, lobbyists, advocates, interest groups and citizens – understand and remain committed to supporting how our system of representative government is designed to work.

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