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Capitol Notes

LEGISLATIVE COLUMN Capitol Notes |

Peggy Sue, the Beagle Hound

Swearing Like a Big Dog.

A Tale of Two Sessions

As Charles Dickens wrote, “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of light, it was the season of darkness, it was the spring of hope, it was the winter of despair, we had everything before us….”

In January 2020, the state’s economy was zipping along, and state revenues along with it. In June 2020, the state’s economy—greatly driven by tourism and the hospitality industry— and state revenues were crashing. January 2020 had a proposed budget with healthy programming increases. June’s 2020 enacted budget is just about the same as last year’s, and that level of funding may be optimistic.

All Done for the Year

With the adoption of HJR 1247 a little after 3:00am on Friday, June 19, the 111th General Assembly adjourned sine die, that is, without a date to return. The 112th General Assembly will convene in organizational session on January 12, 2021.

Top Five Legislative Enactments

1. Budget Package. After a bit of drama and horse trading, the appropriations package of Public Chapters 760, 759, and 758, was enacted into law. To give a flavor of the austerity the budget imposes, state employees and K-12 teachers will forego raises this year. The $39.4B spending plan doubles the caps for the items eligible for the sales tax holiday that ran from July 31 to August 2, and includes a restaurant sales tax holiday for the weekend of August 7 to August 9. The plan also has a buyout program for state employees, presumably to encourage the retirement of more highly compensated and older state employees. The plan has a $200M distribution for city and county governments, which may be used for general operating expenses. The effective dates are for the fiscal year beginning July 1, 2020. 2. Fetal Heartbeat. With the budget negotiations at a standstill, the Senate offered to pass fetal heartbeat abortion legislation near and dear to the hearts of many conservative House members. Quickly, the deal came together, and the Senate adopted a 38-page amendment to SB 2196 by Johnson / HB 2263 by Lamberth which clearly seeks a courtroom path to challenge the 1973 Roe v. Wade decision establishing a constitutional right to an abortion. Litigation challenging the legislation has already been filed in federal court in Nashville, and the matter will be heard by District Court Judge Chip Campbell. The effective date was July 13, but the court issued a restraining order on the same day. 3. Billboard Regulation. On September 11, 2019, the US Court of Appeals for the Sixth Circuit in the case, Thomas v. Bright, declared Tennessee’s Outdoor Advertising Control statutes unconstitutional, because the Court found the on premises sign exception to be content-based and subject to strict scrutiny, and the statute failed to survive that constitutional test. The Tennessee Department of Transportation (TDOT) responded to the case by suspending its enforcement of the statute. The General Assembly responded to the case with SB 2188 by Becky Massey / HB 2255 by Dan Howell / Public Chapter 706 which addresses the Court’s concern and maintains the State’s receipt of $93 million in federal highway funds which are conditioned on a state having a functional billboard control program. The effective date was June 22. 4. Contractor/Subcontractor Relations. SB 2681 by Paul Rose / HB 2706 by Ron Gant / Public Chapter 749 formalizes a statutory relationship among owners, prime contractors and remote contractors, which may not be waived by contract. The new statute continues authority for a maximum retainage of 5% and establishes a prompt payment mechanism, which if violated, permits a stoppage of work by the unpaid party. The effective date was July 1. 5. Drug-Free School Zone Reform. Under the former law, drug offenses occurring within 1,000 feet of a school zone were subject to significantly enhanced criminal penalties. Under the sponsorship of Judiciary Committee Chairs, Senator Mike Bell and Representative Michael Curcio, the General Assembly reduced the distance to 500 feet. At first glance, it doesn’t appear to be significant, but SB 2734 / HB 2517 carried a positive fiscal note of around

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Google toolkit to develop contact tracing apps. Another state, Utah, has gone out on its own, developing an app that is not based on the Apple/Google toolkit standard, raising questions about the ease of sharing information with other nonUtah apps.

There are already questions about privacy issues related to a contact tracing app; and Americans are reluctant to acquiesce to any type of government “tracking,” especially via their smartphones. If private companies—including for-profit entities—take up the slack and develop contact tracing apps, more questions may be raised about what these companies may be doing with information they gain access to from these apps and how they potentially can market this data for profit.

So, this idea of using smartphones to conduct contact tracing, while it is indeed technically viable, may not yet be accepted widely enough to be a practical solution. Perhaps more action from the CDC or WHO, who so far have shied away from developing or endorsing any contact tracing app, may be needed to make a widely accepted contact tracing app in the US a reality.

Take good care,

CAPITOL NOTES

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$7M dollars in avoided confinement costs. The effective date is September 1, 2020.

Worth a Mention (But Not Top Five)

• Official state nickname is now the “Volunteer State” (Public Ch. 516) • Curbside pickup for beer OK (Public Ch. 704) • Still a day of special observance, but no gubernatorial proclamation of Nathan Bedford Forrest’s birthday (Public Ch. 707) • Legal age for tobacco purchases increases from 18 to 21 (Public Ch. 732)

Extraordinary Session for August?

Governor Bill Lee continues to ponder an extraordinary session call to deal with the COVID-19 tort liability issue and insurance coverage and reimbursement rates for telemedicine services. Odds around the doghouse seems to be leaning in favor of such, but public health concerns surrounding the virus and its spread may play a role in the decision-making calculus. If not, expect Governor Lee to extend the effective date of Executive Order 53 which limits tort liability exposure of health care providers licensed under Tennessee Code Annotated, Title 33, 63 or 68.

Calendar Notes

August 18 marks the 100th anniversary of Tennessee’s ratification of the 19th Amendment to the US Constitution for the adoption of women’s suffrage for the entire country in all elections. In celebration of this milestone, the NBA is holding a very special (virtual) event, 100 Years of Woman Suffrage: Honoring the Past, Looking to the Future, on Thursday, August 13. Visit NashvilleBar.org/Suffrage to learn more.

Governor Lee’s Executive Order 50 extending the COVID-19 state of emergency effectively cancels high school football games originally scheduled for August 21 and 28.

State and NBA offices will be closed on Monday, September 7, for the Labor Day holiday. n

PEGGY SUE is fond of the classic 1957 Buddy Holly song. When hunting legislative news or biscuits, she is hard to contact.

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