Early the morning of May 7, a Thursday, a motley crew of senior Senate Republicans and their Democratic counterparts, disregarding a chorus of conflicting desires from the membership as a whole, pulled the plug on the 2020 legislative session.
It appeared to be a practical decision. More than a month of quarantine has exposed deep fault lines within the majority party, schisms so vast that further legislating would likely devolve into an attritious slog. Those divisions haven’t gone away – a sizable chunk of legislative Republicans want to get back to business, and many of those same lawmakers have repeatedly threatened to raise hell at figureheads in their own party for putting the state under a quasi-lockdown for the past several weeks.
The saga began on March 30, when Arizona Gov. Doug Ducey, himself a Republican, followed other states in announcing a stay-at-home order that discouraged Arizonans from going out into public except to participate in a broad list of “essential” activities. Nonetheless, frustration with Ducey from his own party quickly developed.
The executive orders have highlighted three distinct factions in the House and Senate Republican caucuses: those who trust that the governor made the right decision, those rankled by some orders but not willing to roll their party leader and those who are ready to burn it all down.
Leading the charge in the House, the incubation chamber for this most recent strain of intra-party dissent, is Rep. Kelly Townsend, R-Mesa. She’s been vocal – on social media, in the press and at protests in front of the Capitol – in her insistence that the stay-at-home order amounts to a tyrannical overreach by the governor.
“I have to be a voice for my community,” Townsend said. “And they are screaming. I don’t know who [Ducey] is talking to, but it’s not LD16.”
Townsend has gone as far as to write a letter to U.S. Attorney General Bill Barr, asking him to issue an opinion on the constitutionality of the stay-at-home order.
And, in a move that is perhaps even more significant now that legislative adjournment is imminent, she drafted a concurrent resolution that would effectively end the governor’s declaration of emergency, terminating the stay-at-home order with it. Ending the session early, she said, would amount to a failure of leadership.
A declaration of emergency can be terminated in two ways – by the governor’s decree or by a concurrent resolution of the Legislature. Although Townsend was the first to raise the possibility, a growing number of her colleagues in the House, including Majority Leader Warren Petersen, have joined her in calls for legislative action. In the Senate, Michelle Ugenti-Rita hoped to carry a companion resolution, but she said on Facebook May 7 that Senate Prsident Karen Fann will not allow her to introduce it.
“I wish Warren Petersen was our speaker,” Townsend said. “He would be able to take care of this without giving up. I hope [Bowers] does the right thing.”
Townsend’s seatmate, Sen. David Farnsworth of Mesa, said he strongly supported both proposed resolutions. Farnsworth, who has attended two protests at the Capitol calling on the governor to immediately reopen the state, said there are always crises to provide excuses for the government to grow its authority, but lawmakers and the people of Arizona must remind the governor that his first duty is to protect the individual liberties of Arizonans.
“If I were king of Arizona, I would open it up,” Farnsworth said. “If people want to stay home, let them stay home and cower under the covers.”
Frustration with the governor’s handling of the virus has spilled over into frustration with leadership within the Legislature. Whispers abound about a ploy to instate more outwardly conservative leaders, those who might be more ideologically sympathetic with the Liberty Caucus – a group of Tea Party-style Republicans who came to power in the state more than a decade ago under the guidance of then-Rep. David Gowan, who would go on to be House speaker and then join the Senate.
One grievance is a lack of communication. This was on full display when Bowers and Fann announced in April that they planned to convene the Legislature and adjourn shortly thereafter on May 1, without first securing buy-in from many members.
One such lawmaker, Rep. Mark Finchem of Oro Valley, said at the time that leadership’s decision to go ahead with a plan that hadn’t been shopped around was “disturbing,” and that he only found out about the May 1 date from an attorney friend who happened to have business before the Legislature.
The Senate’s new plans to adjourn sine die on May 8 also came as a surprise to many members, said Sen. J.D. Mesnard, R-Chandler. Mesnard, who favors continuing the legislative session indefinitely so lawmakers can easily come back to pass legislation or serve as a check on the governor, said Republicans received individual follow-up messages after a closed caucus meeting on the morning of May 7 asking if they would support sine die or a bill proposed by Sen. Eddie Farnsworth, R-Gilbert, to protect people and businesses that disobey Ducey’s executive orders from punishment or civil liability.
After that, Mesnard said he learned about sine die plans from reporters who called following Fann’s early morning press release.
“When leadership wants to do something, unless there’s enough folks pushing back, it will happen,” he said. “The Senate leadership has made clear that it wants to sine die. I don’t think that there are enough folks pushing back.”
Mesnard said he’s counting on Republicans in the House to push back, something Rep. Walt Blackman, R-Snowflake, said he and his fellow colleagues in the Liberty Caucus are doing.
“We’re in a situation where we need to speak up,” Blackman said, adding that he’s counting on that group to fight to “get back to work,” presaging the likely pushback that a motion to adjourn will get from some in the GOP.
While Blackman’s not outwardly critical of the job that leadership has done, he acknowledged that others are – and said that the House majority position that Petersen will vacate if he goes to the Senate may present an opportunity.
In fact, Blackman said he has been approached by other members to make a bid for leadership – a job he doesn’t doubt his ability to do, but nonetheless is not interested in for now.
“When you have this much pressure in a situation, the idea that we are somehow showing stress cracks should not be all that surprising,” said Rep. John Allen, R-Scottsdale.
Interestingly, similar factors were at play when the Liberty Caucus was born. In 2009, Gowan, then a freshman member of the House, led a cadre of lawmakers who were frustrated with House Speaker Kirk Adams, who drafted a recession-era budget proposal that didn’t make the aggressive cuts that the new class of conservatives wanted since they were rid of Democratic Gov. Janet Napolitano. She resigned to join the Obama administration.
Gowan had promised on the campaign trail to read every budget before voting on it, and now was being robbed of the opportunity to review the bill, which was written without input from the freshmen. He and the fledgling Liberty Caucus refused to vote for the bill, and strong-armed Adams into making deeper budget cuts.
Whether this new iteration of staunch conservatives will be as effective this time is unclear – though they’ve got a growing track record, having cajoled Bowers into backing down from a plan to adjourn on May 1, and raising their concerns to the level of the governor, who has expedited the end of the stay-at-home order.
“The governor has moved quite a bit toward the Legislature’s worldview,” said Allen.
Democrats see the winds changing too, especially with the about-face the governor pulled in extending and then quickly dialing back his executive order.
“From one day to the next, things changed,” said House Minority Leader Charlene Fernandez, of Yuma.
Still, moving the needle any further may be difficult. Even though GOP membership has made it quite clear that top-down decision-making causes heartburn, many were once again surprised to hear about the May 7 decision to adjourn the next day. And a concurrent resolution to overturn the emergency declaration would require dozens of puzzle pieces to fall into place in a very specific order, largely because lawmakers have blown by deadlines for the introduction of legislation. Democrats, of course, wouldn’t vote on such a measure, and the same can likely be said for a small handful of moderate Republicans in the Senate.
Sen. Kate Brophy McGee, R-Phoenix, is among the group of moderate Republicans who believe Ducey made the right decisions with the information he had available. Members of her caucus were understandably alarmed by Ducey’s comments about potentially jailing, fining or revoking business licenses for people who flouted his executive orders, she said, but she wouldn’t support their “reactionary” resolutions to end the state of emergency.
The state had 9,945 COVID-19 cases and 450 deaths as of the morning of May 7, and those numbers continue to rise. Ducey now plans for his stay-at-home order to expire May 15, with retail and salons fully reopening May 8 and restaurants allowed to resume dine-in seating on May 11.
The primary response of both the Legislature and the governor needed to be protecting public health, Brophy McGee said. But she said it may be necessary to clarify how much authority lawmakers ceded to the executive in the name of public safety, she said.
“When the house is on fire, or there is a threat of fire, you don’t necessarily have the time to check off all the boxes,” she said. “This whole set of circumstances was so unprecedented, and it came upon us so fast.”
Fellow moderate Sen. Frank Pratt, a Republican from Casa Grande, described the resolutions aiming to overthrow the governor’s order as a “bad idea.” Those questioning Ducey’s actions should consider that the governor made decisions based on communicating with public health experts, Pratt said.
“I believe it’s kind of a slap at the governor,” Pratt said of Townsend’s resolution. “I support what the governor is trying to do. He’s charged with a real tough decision.”