EDUCATION REFORM AND EXECUTIVE--LEGISLATIVE

RELATIONS IN KENTUCKY: HB 940 as the Culmination

of Legislative Independence, 1980-1990

 

 
 

By: Paul Blanchard

Professor of Political Science
Eastern Kentucky University
 
 
 
 

Published in
The Journal of Kentucky Studies
Vol. 10 (September, 1993)
 
 

Prepared for Presentation at the 30th Annual Meeting of the Kentucky Political Science Association, Highland Heights, KY, March 8-9, 1991.




 

    Without question, the 1990 session of the Kentucky General Assembly will long be remembered as the education reform session, when extraordinary changes were made in the state's elementary and secondary education system. In adopting HB 940, now called the Kentucky Education Reform Act of 1990 (KERA), Kentucky legislators not only signaled their willingness to take bold and unprecendented action to set Kentucky schools on a radically different course; they also solidified a growing reputation for independent decision making and a coequal status. In this paper, I will argue that the historic decisions made by the 1990 legislature culminated a decade-long struggle to achieve equality with the executive branch. At the same time, KERA also represented the culmination of nearly a decade-long process of achieving meaningful reform of the state's education system. Thus, an examination of education reform efforts during the 1980s will also reveal a number of significant milestones in executive-legislative relations. Along the way, we will also note the substantial contribution made by Kentucky's judicial branch to the education reform process.

    Most observers would mark the beginning of recent education reform efforts in Kentucky, as well as in other states, with the issuing of a major national report, A Nation at Risk, in 1983. The obvious struggle for legislative independence began three or four years earlier, when a new constitutional amendment, coupled with the election of John Y. Brown, Jr. as governor (both resulting from the elections of November, 1979), ushered in a new era of executive-legislative relations. Since many of the significant developments during the 1980-83 period are discussed elsewhere,1 they will be summarized briefly here. Legislators began to select their own leaders, rather than having leadership imposed upon them by dominant governors. A modified election cycle allowed the legislature to be organized a year before a session began, permitting more substantial study and preparation for legislative decisions. A slightly more flexible scheduling of the 60-day session, provided for by the 1979 constitutional amendment, allowed a small increase in the time available for deliberations and, perhaps more important, an opportunity to override gubernatorial vetoes. Legislative facilities improved, with the provision of modest offices for legislators and greatly improved committee rooms. Finally, and probably most significantly, a number of changes occurred which permitted legislators to become more meaningfully involved in the budget-making process, which reflected the most important decisions to be made in every session.2

    A major influence on education reform in Kentucky was the Prichard Committee for Academic Excellence, which was at work considering various reform proposals at about the same time that A Nation at Risk was issued. This committee, led by its venerable and respected chairman, Edward Prichard, until his death in 1984, issued a major report in 1985,3 which contained many of the items which would appear on the education reform agenda of both the mid-1980s as well as 1990. The Prichard Committee and other groups, particularly the Kentucky Chamber of Commerce (KCC), and the Kentucky Education Association (KEA), established a reform environment which was to become significant in affecting executive-legislative relations during the administration of Governor Martha Layne Collins (1983-87).

    Governor Collins was the first governor to face a General Assembly which, by virtue of the new legislative election cycle, effectively had a one-year "head start." That is, the 1984 legislature was organized, with its leadership and committees established, in January of 1983, more than eleven months before she took office in December of that year. As a result of this and other changes, along with her lack of experience in legislative relations, the 1984 session was a disaster for Governor Collins. Her education reform proposals, along with the increased revenues to pay for them, were "...turned down flatly by the legislature."4 In fact, the legislature responded to her rather unskillful leadership by passing what was essentially a legislative budget, an unprecendented milestone in the development of legislative independence.

    In my judgment, Governor Collins' response to the disastrous 1984 session was one of the most significant developments of the 1980s, both in terms of executive-legislative relations as well as the education reform process. Rather than reacting with bitterness or hostility toward a legislature that had caused her to be defeated, if not disgraced, she set about to create positive, working relationships with legislative leaders, particularly with those legislators who had developed expertise in educational policy.5 What resulted was unprecedented cooperation between the governor and legislature, which continued throughout much of the last three years of the Collins administration. These cooperative relationships contributed to important education reform policies which were enacted by the General Assembly in 1985 and 1986. They focused primarily on educational "inputs," including class size, teacher pay, and teacher preparation, particularly a new teacher internship program. These reforms were supported by a relatively small but significant revenue enhancement package but no major tax increase. As the Collins administration ended, then, legislators, as well as the governor, were pleased with the substantial progress they felt they had made in improving education in Kentucky. More important, legislators were also pleased with the process by which these improvements had been enacted. The legislature had achieved equality--a partnership, if you will--in the development of meaningful educational policy.

    Wallace Wilkinson's election as governor in 1987 added an important new dimension to the education reform picture in Kentucky. While his views on education as a candidate were overshadowed by his strong (and electorally popular) advocacy of a state lottery, Wilkinson did have a rather well-developed position on education reform and the direction it should take. His views can be summed up for this discussion with one word--restructuring. For Wilkinson, the entire educational system needed to be revamped. In this regard, his position anticipated some of the substance of the Kentucky Supreme Court decision of 1989, discussed below. It was also consistent with a number of reform themes discussed in A Nation at Risk and with reform proposals being considered in other states.

    But Wilkinson's views on education, along with his views on most matters, were not well received by the 1988 General Assembly. While Wilkinson's confrontational style of dealing with legislators would likely have been counterproductive during any session, it was particularly inappropriate in 1988, given what had been occuring in executive-legislative relations during the previous three years. Wilkinson's entire posture toward the legislature seemed to reflect a total lack of awareness of how the legislature had evolved into a more independent and equal branch of government. His attitude toward the recently-enacted reforms of 1985-86 was especially offensive to legislators. His lack of commitment to these reforms and the funding necessary to continue them, while consistent with his position on restructuring, reflected a lack of appreciation of all that they symbolized for the General Assembly. Legislators not only had invested considerable emotional and political resources in these reforms, such that they claimed "ownership" and pride of authorship; they also were committed to the procedural partnership that these reforms represented and viewed Wilkinson's education proposals as a threat to all that they had achieved. In my judgment, while the governor probably did not intend to be viewed in this way, both the style and substance he projected were perceived by many legislators to be a threat on the legislature as an institution. Thus, from their perspective, this threat needed to be resisted with all the energy and resources available to them.

    Obviously, with this level of mutual distrust, often approaching outright hostility, little was accomplished during the 1988 session, not only on education reform but on substantive legislation of any kind. The legislature acceeded to the governor's wishes on one major proposal, the lottery amendment. Largely through its own efforts, the General Assembly passed a major election reform/vote fraud bill. In action reflecting the budget-making process of four years earlier, what was essentially a legislative budget was enacted. Executive-legislative relations had reached a stalemate between the two branches.

    The judicial branch provided the action necessary to break this stalemate, insofar as education reform was concerned. A landmark decision by former Franklin Circuit Judge Ray Corns was handed down in 1988, upholding the position of 66 mostly poor and rural school districts who had sued the state three years earlier. The Corns decision found the state's educational system constitutionally deficient, primarily because of the lack of equity in the distribution of school funds. In response to an appeal to the Corns decision, the Kentucky Supreme Court issued an even more farreaching decision in June, 1989. In the case of Rose v. Council for Better Schools, Chief Justice Stephens' majority opinion went well beyond the Corns decision, declaring Kentucky's entire school system unconstitutional. The Stephens decision addressed not only a lack of equity but also a lack of adequacy of funding and an inefficiency in the making of educational decisions, particularly at the local level. The Supreme Court ruled that the legislature was primarily responsible for correcting these deficiencies and that the necessary corrections had to be made before the beginning of the 1990-91 school year. This decision assured that education reform would be the central item on the General Assembly's 1990 agenda. It also signaled the need for more cooperative relations between the executive and legislative branches if the Court's mandates were to be addressed in a satisfactory manner.

    The immediate response to the Supreme Court's decision was significant. During the summer of 1989, the Education Reform Task Force (ERTF) was established; its twenty-two members consisted of eight legislative leaders from each House plus six members appointed by the governor. Clearly, the ERTF was the single most influential decision making body in determining the substance of KERA. Several features of the Task Force and the way it did its work are important to mention in the context of the themes being discussed in this essay. First was its reliance on policy specialists, i.e., consultants from outside Kentucky, to set the major substantive agenda items which would be considered by ERTF's three subcommittees, Curriculum, Finance, and Governance. By responding to the proposals of outside "experts," who were "neutral" in terms of executive-legislative relations, task force members were able to avoid the overt conflict between the two branches which had emerged the previous year. In addition, they had the advantage of drawing upon the considerable expertise and familiarity with national reform which the consultants represented.

    Also important was the predominance on ERTF of legislative generalists, like Speaker Blandford, Senate President Pro-Tem Rose and other members of the elected Democratic leadership in both Houses. The major exceptions were the two budgetary specialists, Rep. Joe Clarke and Sen. Mike Moloney, whose acknowledged expertise in the areas of appropriations and revenue would be essential in formulating the financial aspects of KERA. The influence in 1989-90 of the legislative generalists was in sharp contrast to the process used during 1985-86 when the most influential legislators in constructing the education reform proposals were specialists, the "young turks" in the House who had developed considerable expertise while serving on the House Education Committee.6 This time around, one got the impression that the stakes were too high to entrust decision making to the specialists.7 Leaders of each House seemed to realize that not only was the reputation of the General Assembly at stake but the reputation and standing of their respective House as well. There also appeared to be an early understanding that it would require skillful political leadership of the highest order to guide the reform package produced by ERTF through the difficult obstacles of the legislative process and see it emerge intact and relatively coherent at the end. This was especially true of the revenue provisions which would require substantial tax increases--provisions that no legislator would find easy to support, assuming he/she desired to be reelected. It became clear during the session that these assumptions were correct and that only the top-level leadership in each House had the essential resources which allowed them to bargain for the necessary votes for passage.

    Most important was a decisional style of ERTF which emphasized consensus and nonpublic, nondeliberative decision making. For the most part, the public meetings of the task force and subcommittees were devoted to taking testimony from various witnesses or to discussing with the subcommittee consultants the various components of their recommendations. Over time, observers would note that a decision had been made but most major decisions were never debated or discussed openly. One example of this was the decision made by the Governance subcommittee to replace the elected Superintendent of Public Instruction with an appointed Commissioner of Education as the state's chief state school officer. As one who followed the actions of this subcommittee rather closely, I am unaware of any meeting in which this significant decision was discussed or explained, an action that would seem to be warranted given the rather circuitous way it was accomplished, i.e., by stripping a constitutional officer of virtually all of his duties by statute rather than by a constitutional amendment, which had always been considered necessary by previous legislatures. Further, I cannot recall anytime during the legislative session itself when this decision was discussed, in committee or on the floor. It was just assumed that from late-summer (1989) and on through the session that this action would be taken.8

    There were two other important consequences of the nonpublic, nondeliberate, consensus decisional approach used by ERTF. First, it seemed to limit substantially the influence of various interest groups who were intensely interested in the specific form that education reform would take. While representatives of various interest groups, both education (e.g., KEA, Kentucky School Boards Association, school administrators' associations) and non-education (e.g., KCC and the Prichard Committee), were present at most task force and subcommittee meetings, the nondecisional nature of these sessions did not allow them to influence specific decisions. A more important consequence of ERTF's style was that it proved very effective in managing and controlling conflict. An underlying assumption of the subcommittees seemed to be that each of the three "partners" represented (Senate, House, and Executive Branch) needed to agree. This assumption9 was apparently realized through nonpublic discussions among various ERTF members, where necessary compromises could be made in order to satisfy each of the three parties. However, it should be noted that most of these "compromises" seemed to involve simply sticking to the consultants' recommendations rather than bargaining on specific provisions. I believe ERTF members avoided the traditional kind of political bargaining because they feared that once begun, it would be difficult to maintain a credible reform product. This type of thinking certainly carried over into discussions which occured during the regular session.10

    As the 1990 session got underway in January, the work of ERTF seemed far from finished. The task force continued to meet along with the voluminous meetings of the General Assembly's regular standing committees. Most observers (this writer included) foresaw that it would be impossible to complete an education reform package during the regular session, when so many other issues demanded the attention of legislators, especially legislative leaders who served on ERTF. For awhile, there were serious discussions about the possibility of a special session in May and June to consider education reform as the sole item on the agenda. This was a particularly attractive alternative to those legislators who would face serious electoral opposition in the May primary, after which it would be easier for them to vote to increase taxes.

    Eventually it became clear that the legislature would not wait for a special session to consider education reform. The major reason was the theme of this essay--legislative independence/equality. As a result of severe animosity between legislators and Governor Wilkinson which surfaced during the early weeks of the session, a serious lack of trust developed among legislators regarding the governor. They realized that in a special session they would lose control of the agenda to him and they were unwilling to risk the consequences of this lack of control. Put simply, during the regular session legislators could deal with the governor as equals while in a special session they would become "captives" of the governor's agenda.

    HB 940 was not introduced until March 9. While the task force continued to work on the reform package, the month of February was devoted primarily to executive-legislative bargaining on the increased tax revenue which would be required to fund the reforms which were being considered. In my judgment, Governor Wilkinson's major contribution to education reform came in mid-January when, in his original budget proposal, he recommended a tax increase amounting to approximately one billion dollars. Without the governor's leadership in proposing a tax package of this magnitude, it is unlikely that the essential revenue to support meaningful reform would have been forthcoming. The legislature, their equality and independence notwithstanding, did not have sufficient initiative or the necessary boldness to take such a step. Once the proposal was made, however, and it appeared that a massive tax increase (and a Wilkinson-proposed tax increase, at that) would be a fait accompli, legislators were willing to debate and negotiate over the form it would take.

    After several weeks of discussion and bargaining, an executive-legislative compromise was reached on the tax package. Legislators forced the governor to accept what was for them a more politically palatable increase in the sales tax in place of the tax on services which he had proposed. In agreeing to this compromise, the governor was finally recognizing the political reality of a coequal legislature. In addition, the compromise tax package contained sufficient additional revenue (another 300 million dollars) which could be used by legislative leaders as bargaining resources as HB 940 was nearing passage. This aspect of the process will be discussed shortly.

    Once HB 940 was introduced, legislators had less than three weeks to move it through both chambers. This would be a formidable challenge for any major piece of legislation, much less the 900 page bill that many were calling the most important legislation to be considered by the General Assembly in the twentieth century! After less than a week of consideration, the House Education Committee reported the bill favorably with thirty-nine committee amendments. This relatively large number of amendments was significant for several reasons.

    First, it suggested the dissatisfaction some committee members were expressing regarding the way major decisions had been made in the substance of the bill. Even though education commmittee members had been allowed to become ex officio members of the subcommittees of ERTF, their influence in the decisionmaking process seemed to be slight, for reasons discussed earlier. This was particularly true for some of the "young turk" legislators who had been so influential when earlier reforms were enacted. For example, of the 39 amendments, more than a third (16) were proposed by just three members (Barrows, Tom Jones, Moberly), all of whom had been active during the 1985-86 reform era.

    In addition, the large number of amendments also reflected the fact that it was in the House Committee where HB 940 probably received its most careful consideration. In spite of efforts of ERTF members, particularly Rep. Kenny Rapier, to hold the ERTF package together, House committee members seemed determined to examine the bill in some detail and to make changes where necessary. This apparently created serious problems for Rapier, who seemed to view any change as destructive of the goal of meaningful education reform. His "protective" tactics and his criticisms of members who opposed him were not only unsuccessful but were also offensive to many committee members, especially to the "young turks" who were most active in the committee process.

    A final comment on the House Education Committee consideration of HB 940 is somewhat inconsistent with the discussion just completed. That is, in spite of the apparently careful consideration of the bill in committee and of the large number of amendments which were discussed and adopted, the House committee only had time to "scratch the surface" of the monumental changes suggested in the education reform package. As suggested earlier, little or no time or attention was given to such major items as the power and selection of the new commissioner and why such a new position was needed, the ungraded primary school cycle, and the local school committees which would form the centerpiece of school-based decision making. In fact, most of the discussion, both in the House Committee and on the House floor focused on two issues of governance which appeared to me to be relatively unimportant and unrelated to the most significant elements in the reform proposals--the anti-nepotism provisions, especially those affecting local school board members, and the provision restricting the political campaign activities of teachers. In my judgment, much of the discussion on governance issues reflected the fact that this part of the ERTF package was its weakest link as well as the fact that the governance subcommittee consultants were relatively less competent than other subcommittee consultants who were so influential in formulating the reform package. This may help explain why Rep. Rapier, who co-chaired that subcommittee, was so sensitive to criticisms of that section of the bill, both in committee and on the floor.

    House members continued their attempts to make changes in HB 940 as it moved to the floor. A total of fifty-seven (57) floor amendments were filed but many of these did not receive serious attention. However, when the bill passed, 58-42, on March 21, thirteen floor amendments had been added to those changes already approved in committee.

    The pace accelerated as HB 940 moved to the Senate. The Senate Education Committee took less than three days to report the bill favorably, with one amendment, whereupon the bill was recommitted to the Appropriations and Revenue Committee, which added another amendment. Both of these committee amendments had the effect of largely restoring the bill to its original version as proposed by ERTF, thus undoing the "damage" done in the House. It was this "restored" version which passed the Senate on March 28, by a vote of 30-8.11

    By this time, members of both chambers were exhausted and few House members were committed, at this late hour, to go to battle with the Senate over the changes made in the House.12 Consequently, on March 29, the House concurred in all amendments added to the bill by the Senate. Thus, it was the Senate version of the bill that went to the governor for his signature. Finally, on April 11, Governor Wilkinson signed HB 940 and it was enacted into law.

    While the final version of KERA reflected, for the most part, the work of the Education Reform Task Force, a major goal of which was to remove local politics from the schools, it is clear that politics of another kind was extremely significant in the process of enacting HB 940 into law. This observation may be illustrated by at least two major decisions made by the General Assembly and its leaders. One was the decision not to allow legislators the option to vote separately on education reform and the increased taxes required to pay for it. Legislators who, for political reasons, decided to vote against the massive tax increases were also forced to vote against education reform, which was also risky, given the reform environment that seemed to be pervasive among many of Kentucky's citizens. This was a difficult choice indeed, as later legislative elections were to demonstrate. While a relatively large number of incumbents were later defeated due, at least in part, to their vote for higher taxes, almost as many incumbents were defeated who had voted against HB 940, presumably because voters may have perceived that they were anti-education.

    More significant was a related decision, mentioned briefly in earlier discussion, through which the legislature added an additional $300 million to the governor's proposed tax increase of approximately $1 billion. This was the much-maligned "pork barrel" portion of the tax increase, which provided funding for dozens of major state projects, such as buildings, swimming pools, and parking garages. The money available for such projects was openly used by legislative leaders, especially in the House, as bargaining currency with which to reward those legislators who voted in favor of HB 940 and to be withheld from those legislators who voted "no." Certainly, then, one of the major ironies in the process of enacting education reform in 1990 was that the most blatant form of patronage politics was used at the state level to pass a package which had as one of its major goals the elimination of blatant patronage politics at the local level.13

    In conclusion, this essay has attempted to demonstrate the strong link between education reform efforts over the past eight years and the evolutionary process which has resulted in a more independent and coequal legislative branch. Reform efforts during the mid-1980s were made during an era of executive-legislative relations characterized by cooperation and partnership between the two branches. This era abruptly ended with the election of Governor Wilkinson, whose goals and preferences may have been "right" on the substance of education reform but whose style and posture toward the legislature was completely "wrong," since they failed to understand or take into account both the way that institution had developed, in general, as well as its specific orientation toward the education reform proposals which it had recently enacted. The resulting stalemate could have delayed the achievement of meaningful and farreaching accomplishments in the state's educational system for a considerable period of time had it not been for the intervention of the state's judicial branch.

    In my judgment, legislative decision making during the 1990 session, particularly on HB 940, suggests one major weakness which legislators should address as that institution continues to evolve. It involves accountability and openness. Legislative leaders continue to prefer "behind-the-scenes" bargaining to open decision making in public settings. While this is understandable, because it is an easier way to make decisions, legislators should consider whether this should be the prevailing decisional style of the legislature of the 1990s. Facing this issue directly will necessarily involve an assessment of two important decision making settings not discussed in this paper, i.e., the Democratic caucuses in each House and the "free" conference committees, which make the ultimate decisions on many major issues, both of which function in closed sessions.

    Finally, legislators might well reexamine and assess the apparent inconsistency which emerged in 1990 as bargains were being struck--bargains which presumably were crucial to the passage of HB 940. Throughout much of the last decade, one underlying theme in the development of an independent legislature was its reaction against a patronage-driven executive branch. Certainly one contributing factor to the animosity which developed between Governor Wilkinson and the legislature early on had to do with that governor's apparent return to a more blatant patronage orientation, particularly in his appointments to high-level state positions. And yet the 1990 legislature discovered that the trading of political favors, funded with substantial state revenue, was a useful tool indeed in achieving the legislative majorities which were necessary to pass KERA. It will be interesting to discover whether this element of legislative decision making will continue in subsequent sessions. If it does, it might suggest to some Kentuckians that an independent legislature does not represent an improvement, or even much of a change, in the way political decisions have been made in this state for generations.


Notes


    1The best source is Malcolm E. Jewell and Penny M. Miller, The Kentucky Legislature: Two Decades of Change (Lexington: University Press of Kentucky, 1988).

    2See Jewell and Miller, pp. 134-49, for a thorough discussion of the evolution of legislative involvement in the budget-making process.

    3The report was entitled The Path to a Larger Life: Creating Kentucky's Educational Future (Lexington: The Prichard Committee, 1985).

    4Jewell and Miller, p. 231.

    5See Jewell and Miller, pp. 129, 273, for a discussion of the "young turks" who were so important as Collins developed a cooperative relationship with the legislature.

6The only one of the original "young turks" who was a bona fide member (as opposed to an ex officio member--see footnote 7, below) of the ERTF was Rep. Roger Noe, chairman of the House Education Committee. His counterpart in the Senate, former Senator Nelson Allen, was also an ERTF member. As "specialists," however, they were much less visible and influential than the budgetary specialists, Clarke and Moloney.

7As a concession to House Education Committee members, some of whom were upset about their lack of representation on ERTF, each member was appointed as an ex officio member of one of the subcommittees of the task force.

8This "behind-the-scenes" method of decision-making in the General Assembly, often resulting in an "agreed bill," is described as the legislative equivalent of "plea bargaining" in a paper I wrote after an earlier session, "Crime Victims' Rights and Legislative Compromise: HB 390 in the 1986 Kentucky General Assembly," presented at the 1987 meeting of the Kentucky Political Science Association, Danville, Kentucky, p. 18.

9My only evidence that this really was an operating assumption was a conversation with one of the governor's representatives on ERTF, who told me that it was.

10One major exception to this statement is the bargaining that occurred over the expenditure of a substantial amount of the new tax revenue which would be produced under HB 940. This is discussed at length near the end of this essay.

11It should be noted that the full Senate added ten floor amendments. For the most part, these involved relatively minor modifications, several involving very technical and complex financial matters.

12A number of legislative leaders were already involved in delicate and intense House-Senate negotiations over other bills. "Free" conference committees were at work on the budget bill (HB 799) and the very controversial "Humana bill" (SB 68).

13A similar irony or inconsistency seemed to reemerge during the 1981 special session during confirmation hearings on gubernatorial appointments to the new State Board of Education, when one nominee was rejected by the Senate; apparently the major reason for his rejection was that he was a political opponent of an influential senator.