Bills After Midnight
The Alaska Constitution didn’t start with a session limit. Voters agreed to add one and put 120 day language into the Constitution in the early 1980s.
But deadlines are tough. Sometimes really good bills can get killed by the calendar. So right away, the legislators started physically stopping the clock a hair before midnight to finish the essentials.
It didn’t take long before someone sued, asking three courts to strike down a bill passed after midnight, arguing that the legislature wasn’t validly in session when it got its final vote. Alaska’s courts have long been very clear that they won’t be the Legislature’s parliamentarian. But when it comes to the Constitution, they absolutely will enforce the rules.
The Alaska Supreme Court did not rule on whether the Legislature has the power to stop time. They found the constitutional limit of 120 calendar days “from the date [the legislature] convenes” means the day we convene doesn’t count. So the total limit is a 121 day session.
Since the court case, almost every legislative session has adjourned by midnight on the 121st day. But we’ve also pushed the envelope a couple of times. In 2022, the House passed a bill just about a minute after midnight. The governor signed it and no one sued, so the law is in effect. This year, the House took it to another level entirely. They passed five bills after midnight on the 121st day.
So what happens next? I honestly don’t know. The governor could veto them if he believes they weren’t constitutionally enacted. But it’s not fair for the legislature to force a governor into the ‘bad guy’ role. If we want the bills to pass—and we voted for them after all—we need to do them right.
Or someone could decide to sue. If that happens, I don’t like our odds in court. Legislatures often stretch what constitutes a ‘legislative day.’ But the Alaska Constitution says “calendar days,” and I strongly doubt the courts would rule the legislature has powers over the passage of time itself.
It’s also possible nobody will say a word. But even the uncertainty can cause problems. One of the after-midnight bills authorizes the Alaska Railroad to sell bonds to replace a worn-out dock. They have a customer who has contracted to pay for it. It’s a smart, much-needed investment. And under the railroad’s statutes, it needs legislative approval. I sure wouldn’t want to be in charge of selling $130 million of bonds with questionable legal authorization. “Cross your fingers and hope no one sues” isn’t much of a strategy with that kind of dough at stake.
