legislature

Tennessee lawmakers passed a series of bills Friday, concluding a whirlwind special session in which they limited the COVID-19 authorities of local governments and private businesses, opened the door to partisan school board elections and sent a shot across the bow of Davidson County District Attorney Glenn Funk.

The legislature utilized two of its favorite secrecy measures when debating the bills: They worked on them late Friday night and early Saturday morning under the cover of darkness, and they hashed out much of the language in backroom negotiations between the House and Senate inaccessible to the general public.

The legislating drew concern from Ford Motor Co. and other business allies. The Tennessee General Assembly last week approved nearly $900 million in spending related to Ford’s plans to build an electric vehicle plant in West Tennessee, but the automaker was reportedly expressing concerns about GOP lawmakers’ push to ban mask and vaccine mandates at private businesses.

“I don’t represent Ford,” Rep. Jason Zachary (R-Knoxville), one of the bills’ sponsors, said. “How Ford feels is up to Ford.”

That outreach came both via Gov. Bill Lee’s office and directly to members of the General Assembly. (Ford has no lobbyists registered at the Capitol.) Other business groups like trade associations and the local chapter of the National Federation of Independent Business, typically in lockstep with supermajority Republicans eager to cut regulations and protect businesses, were aghast at some of the measures, including one that would allow employees to sue employers who mandate COVID-19 vaccines if they face adverse reactions and another that Lee administration officials warned would result in a federal takeover of state workplace safety regulators.

Senate Majority Leader Jack Johnson (R-Franklin) acknowledged that some of the bills were “contrary to some of the tenets we’ve held sacred” when it comes to pacifying the business community, but he pushed forward anyway. It was beyond the pale even for the Tennessee Trucking Association — an industry specifically cited by Johnson as in need of the legislation — who called it “anti-business.” Particularly galling to the truckers was the idea that someone who did not want a vaccine could quit their job and still draw unemployment checks, typically reserved for those laid off against their will.

That pressure preceded some late-night dilution. As passed, private businesses like Ford can still require masks, though not COVID-19 vaccines (with some exceptions). The language technically bans vaccine mandates at entertainment venues, though the businesses can allow patrons to show a vaccine card in lieu of a recent negative test under the bill. 

“Businesses should have the ability to have their employees be safe, whether that’s a hard hat, gloves or even a face covering,” said Republican Rep. Chris Todd, who sponsored an amendment that allows businesses to require masks.

The amended bill gives private schools more latitude on COVID-19 mitigation than public schools. The weakened bill also exempted in-home work environments like home health aides or maids, with some lawmakers worrying about the prospect of legislating how individuals manage their own homes. 

One of the least controversial measures considered this week gives banks more flexibility when accepting money from local governments. The bill, which passed unanimously in the House and with one dissenting vote in the Senate, allows banks that accept money from local governments to put up cash as collateral and reduces the level of collateral required from 100 percent to 90 percent. Bankers said it was necessary because of the unprecedented amounts of money moving into local government accounts due to the American Rescue Plan.

Another bill will allow Tennessee communities to hold their elections for school board by party. Supporters said the change was necessary for “transparency” because voters struggled to identify the political beliefs of candidates without an R or D by their name. The change comes in the wake of some Tennessee school boards in conservative areas instituting mask mandates or other COVID-19 mitigation measures. The effort was among the most bitterly fought during the special session, with just 52 members of the House voting for it and 20 members of the Senate — especially close margins in a legislature dominated by a single party.

“Being on the school board is the most important job in the county,” Sen. Ken Yager (R-Kingston), a former county executive and one of the GOP no votes on the bill, said. “There’s a role for partisan politics. I just don't think it’s here.”

Yet another special session priority seemingly unrelated to COVID-19: Lawmakers approved a new provision that would allow the attorney general to go over the heads of local prosecutors who state flat-out that they won’t enforce certain laws. It’s a shot at Nashville DA Glenn Funk, who has said he won’t prosecute low-level marijuana and abortion-related cases. (Funk declined to comment.) If Funk were to maintain his position, the attorney general could appoint a special prosecutor in the district to prosecute the cases Funk won’t.

“If they don’t want to do their job, they can resign and run for the General Assembly,” Sen. John Stevens (R-Huntingdon) said.

A bill establishing punishments for local officials who do not enforce executive orders failed in a Senate committee Friday, a rare move as it was backed by both House Speaker Cameron Sexton and Senate Speaker Randy McNally. Representatives of Tennessee sheriffs and chiefs of police testified against the bill. The bill appeared aimed at school boards in Nashville and Memphis that flouted Lee's executive order, now in litigation, demanding that school mask mandates allow opt-outs. 

The main event, however, was the so-called “omnibus bill,” which included several provisions stripping COVID-19 authorities from local governments and private businesses.

Johnson, responsible for guiding the legislation in the Senate, admitted that it was in flux on Friday afternoon.

“The bill that is before you now, I don’t think is in its best posture,” he told senators on the floor shortly before asking them to pass it anyway, which they did.

His hope was that the House would pass a different version of the bill, and representatives from the two chambers could work out differences and improve the legislation. That’s more or less what happened, largely behind closed doors and late into the night.

As amended, the legislation bans government bodies, including public schools, from requiring masks, unless extreme pandemic circumstances arise. The new ban on COVID-19 vaccine requirements applies to government entities and private businesses, though it has exceptions. Companies engaged with Medicare and Medicaid, airports and federal contractors are among those with certain exemptions under the law.

Another part of the legislation will give Lee’s health commissioner power to appoint the county health director in the six counties with their own health departments, including Nashville.

Lee rebuffed GOP lawmakers’ request to call this special session, forcing them to do it themselves. He has not said much about their proposals, except to say that he believes the vaccine fight should be battled in court. Lee had not said whether he plans to sign the bills by Saturday morning, though he has not vetoed anything since he was first elected.

“This is not the way the Senate tends to do business, and it’s not the way the Senate should do business,” Senate Minority Leader Jeff Yarbro (D-Nashville) said of the hurried process.

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