Ever heard of the filibuster? It's a procedural tactic in the United States Senate that was initially popularized in the classic film Mr. Smith Goes to Washington. A filibuster is when one or more U.S. Senators speak continuously and refuse to yield the floor as a way to delay or block a vote. In recent years, it has been most commonly used by the minority party to try and block the majority party from doing business. "Immediate effect" is the Michigan Senate's equivalent of the filibuster.

The Law

Under Article IV, Section 27 of the Michigan Constitution, "No act shall take effect until the expiration of 90 days from the end of the session at which it was passed, but the legislature may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house."

In practice, this means that, unless a law is given immediate effect, it does not take effect until the end of March in the calendar year after which it was passed. So if the Michigan legislature passes a law in March of 2023 without immediate effect, that law would probably not take effect until March 2024 (assuming that the end of session happens when it usually does at the end of December).

There are workarounds if a law needs to take effect sooner, but none of them are clean.

  1. The Michigan Senate could change the rule that requires a roll call vote for immediate effect. Without a roll call vote, the Senate could use any number of other voting styles (e.g. a voice vote) that effectively allow the President of the Senate (i.e. Lieutenant Governor Gilchrist) to make a subjective determination of who wins (hint: it's always the party of the Lieutenant Governor). But Senate Democrats were, until very recently, the 40-year minority party in the Michigan Senate and they are understandably reluctant to strip away minority party powers.
  2. The Legislature could decide to adjourn for the rest of the year (called sine die or "without days") at any time. In that case, all the laws passed up to that point would take effect 90 days later. But if they were to do that, they could not return to session on their own. Governor Whitmer could call them back for a special session, but the Legislature would be limited in what business it could do during that special session. For example, if the Governor were to call a special session to pass a state budget, the Legislature would be limited to working on laws related to a state budget. For Democrats, who haven't held a majority in 40 years, the idea of adjourning early and then being limited in what business they can do after that is not appealing.
  3. Majority Democrats can buy votes on immediate effect, by promising things to Republicans who agree to vote for immediate effect. This can be budget line items, consideration of Republican policy initiatives, committee assignments, or any number of other things. Or they can strip Republicans of those same things if they refuse to vote for immediate effect . This is traditionally how the majority party avoids problems with immediate effect votes. Except that minority Republicans are holding together and refusing to sell votes. And Democrats are, again, reluctant, to treat the minority party too harshly so far.

Practical Considerations

While all the laws that Democrats are currently passing will eventually take effect, the timing matters.

For example, due to a one-time accounting rules change, Michigan's tax revenue was artificially higher last year than it would otherwise be because of a delay in when Michigan pays tax refunds. The problem is that this is likely to trigger a permanent reduction in the state's income tax rate because of a provision added to the law by Republicans several years ago. Democrats tried to avoid the trigger by proposing a bill to issue one-time tax rebate checks. But Republicans refused to give the bill immediate effect because they wanted to force the income tax rate reduction to happen. So, the proposal would not have worked and, by simply denying immediate effect, minority Republicans may have been able to force a permanent tax reduction under the watch of the state's first Democratic majority in 40 years.

Another education-related example is the recently passed repeal of the retention portion of Michigan's third grade reading law. This new law was also denied immediate effect. And because of that, this year's third graders will once again be subject to possible mandatory retention. And for educators who are tasked with processing waivers for students who should not be retained, it means another year of tedious paperwork.

The bottom line, then, for educators who are hoping for more immediate relief from state requirements that Democrats are likely to address (e.g. the use of state assessment data in educator evaluations), the denial of immediate effect could mean that some of these changes will not begin until the 2024-25 school year, more than a year and a half from now.