11/27/00 4:15 p.m.
The Special-Session Gambit
The Florida legislature keeps options open with panel.

By John Hood, president of the John Locke Foundation
& a political commentator in North Carolina

unning parallel to the campaigns' spin control and preparations for Friday's U.S. Supreme Court hearing, the Florida legislature is setting up a process for intervening should George W. Bush's certified win be overturned by state or federal courts.

In a decision reached Thanksgiving night and announced the following day, Florida house Speaker Tom Feeney and senate president John McKay formed the Joint Legislative Oversight Committee on Electoral Certification, Accuracy, and Fairness. The 14-member panel includes eight Republicans — including Sen. Daniel Webster, a former house speaker who has become a vocal critic of the Florida supreme court — and six relatively obscure Democrats.

The committee's official purview is to hold hearings and examine three categories of voting "irregularities": 1) the failure of some counties to count overseas absentee ballots from the armed forces, 2) the inconsistent standards for counting votes in the various counties, and 3) changes in the certification process after the election.

Unofficially, the committee's purpose appears to be to lay the groundwork for a potential special session. Feeney telegraphed this by stating Friday that the committee "will be responsible for investigating and ensuring Florida voters will be included in the final nationwide election results." Objecting to the selection of committee members and the limited choice of irregularities to be examined, House Minority Leader Lois Frankel also made it clear what the end result could be. "I don't know why they don't just call it the 'Select Committee to Elect George Bush the Next President of the United States,'" she said of the panel.

Why a committee? Although the principals aren't talking to the media, many believe the idea may have been a compromise between Feeney, a strong conservative and former Jeb Bush running mate in 1994, and McKay, a former Democrat with a more centrist reputation and a penchant for bipartisanship. Feeney's spokeswoman, Kim Stone, lent credence to this explanation Saturday by saying that "instead of being rash and jumping into something we were not 100 percent prepared for, we took an intermediate step."

The first meeting of the joint committee will be Tuesday in Tallahassee. Much of its early work may involve hearing the opinions of three lawyers hired to advise the legislature on its statutory and constitutional options. Two Harvard law professors — former Reagan Solicitor General Charles Fried, a former member of the Massachusetts supreme court, and Einer Elhauge — will advise the house. Roger Magnuson, a specialist in corporate litigation at the Minneapolis firm of Dorsey & Whitney, will advise the senate. Democrats are crying foul at these selections, too, noting that Fried has advised the Bush campaign and saying Magnuson, who also serves as dean of a private law school in California, is a religious extremist because he believes in applying "biblical principles" in legal reasoning.

Whatever the new committee does, it won't have long to do it. Among the various options available for calling a special session and intervening in the election, the most politically attractive will also take the longest amount of time. Republican lawmakers want to keep Gov. Jeb Bush out of the process, but to do so they cannot call a single-day session. For one thing, passage of any legislation on a single day would require suspending legislative rules that call for bills to be "read" in chambers on three consecutive days. Such a suspension would require a two-thirds vote in each house, but GOP margins fall two or three votes short of that in each. Furthermore, a bill passed by a standing or adjourned legislature would have to be signed into law by Bush.

To operate without Bush and without bipartisan support, Feeney and McKay would have to call the legislature into special session themselves, pass a bill selecting electors or otherwise "correcting" the process to favor Bush over three legislative days, and then recess (not adjourn). Seven days after the recess, the bill would become law without Bush's signature.

It's a clever stratagem, and could be perceived as somewhat more legitimate than a bill bearing the signature of the president-elect's brother. However, it would take at least 10 days, meaning that a special session would have to convene this weekend at the latest to make the Dec. 12 deadline for picking electors. As this is all largely unexplored legal territory, some believe that the real deadline is Dec. 18, when the Electoral College actually meets to decide the presidency. In either case, there's not much time left.