SALT LAKE CITY — It’s in times of crisis when leadership matters most.
But in Utah, as the state continues to grapple along with the rest of the world with the COVID-19 pandemic, some have expressed concerns about a “leadership vacuum” — a void of a single, strong leader willing to make the tough decisions necessary to clamp down on the highly contagious and deadly virus.
To his critics, Gov. Gary Herbert’s “light touch” and “collaborative” leadership style that has served him well through most of his administration has now become a weakness. They worry that the governor, under pressure from legislators and business interests, allowed an economic reopening to happen too quickly — which was followed by a surge in coronavirus cases — and has been reluctant to make what could be unpopular decisions to reduce the spread of COVID-19, such as a statewide mask mandate.
They say that approach stokes “fear” and “uncertainty” for Utahns who aren’t getting consistent messaging from government leaders.
His supporters have a different take.
To legislative leaders, the governor has strived to strike an appropriate balance of collaboration during an unprecedented time of crisis — a time when they say decisions must take into account both public health and economic health.
“If people are taking the fact that the governor likes to get feedback and input from others as a weakness, that’s ridiculous,” House Speaker Brad Wilson, R-Kaysville, said.
Critics also worry that Herbert’s approach has allowed a gradual erosion of executive branch power that has been exacerbated by the pandemic. The Utah Legislature — enabled by a 2018 constitutional amendment to call itself into special session during an emergency — has used that power to pass several bills to assert itself in the state’s response to the pandemic, including a bill requiring the governor to give legislators at least 24 hours notice before calling an emergency and the creation of a legislative commission to guide the reopening of the economy.
But legislative leaders contest any characterization of a legislative power grab or an erosion of the executive branch, chalking up their actions to what Wilson called a natural, long-standing “healthy tension” between legislative and executive branches.
“I don’t think people should be surprised, as the world tipped over in March, that everyone’s trying to feel their way through how they execute their responsibilities,” the speaker said. “I think we’re lucky to live in a place where people are willing to work together to figure that out.”
Despite repeated requests for an interview for this story, governor’s office staffers said both Herbert and Lt. Gov Spencer Cox, who won the Republican nomination for the race to become Utah’s next governor, were unavailable.
One of Herbert’s and Cox’s biggest political opponents — and a fellow Republican — doesn’t see a balanced legislative and executive branch. Instead, he sees a tipping scale — one that began long ago.
Herbert’s predecessor, former Gov. Jon Huntsman Jr., said it’s part of the “architecture” of state government to have a natural push and pull between the legislative and executive branches of government, but “when you’re devoid of leadership in one or the other, you find there’s an immediate imbalance of power.”
Over the years, Utah’s executive powers have slipped, Huntsman said. Perhaps the most “extraordinary” example, he said, is when the Legislature, under Senate President Wayne Niederhauser and House Speaker Greg Hughes, passed the constitutional amendment to allow the Utah Legislature to call itself into special session in times of emergency.
That amendment went into effect after it won voter approval in 2018, and it’s been used this year by the Legislature to call itself into special session.
When there is an “omission” of power, it naturally “slips into the hands of others,” Huntsman said. “Power is very fluid, and there are real vacuums that are created when leadership doesn’t exist, and those are filled by a power player.”
Today, Huntsman said Utah continues to have what he considers strong legislative leaders with Adams and Wilson, while Herbert is a “status quo governor.”
“There has been an imbalance for some time, and a COVID-19 situation just exacerbates the preexisting state of play,” Huntsman said.
Herbert was Huntsman’s lieutenant governor when Huntsman sat in the governor’s seat. In this year’s Republican gubernatorial primary, Huntsman lost the nomination to Cox, who was endorsed by Herbert.
Huntsman said his “biggest complaint” — which he repeatedly voiced along the 2020 campaign trail — is the “politicization” of the state’s COVID-19 task force when Herbert appointed Cox to head the task force.
That “mistake,” Huntsman said, “diminished” the task’s force effectiveness and its credibility. Since then, the task force has “blown up,” he said, and has been replaced by a commission led by legislative leaders who have since tried to take charge of economic reopening.
Herbert tapped Cox to lead the COVID-19 Community Task Force group, which met several times a week early on in the pandemic, then wound down in June to an “as-needed basis.”
Decisiveness vs. balancing
“Look, I think the governor is a great governor in many respects, but I wish he was more decisive and more willing to use that executive authority to protect the public health and safety of Utahns,” said House Minority Leader Brian King, D-Salt Lake City, calling a statewide mask mandate a “no-brainer” based on data showing masks work to limit the spread of COVID-19.
To King, Herbert’s “commitment to collaboration” and governing with as “light a hand as possible” have been strengths — up until now.
“There’s a lot of good that comes from that approach,” King said. “But there are also times when you need a strong leader to make the hard calls and say, ‘Look, I know this is going to be very unpopular with some people in my own party, but I’m willing to endure that criticism because the facts and the data and the science and the statements from public health officials are so clear that this is what we need to do to protect Utahns.’”
While the governor has preferred to avoid state mandates, trusting Utahns to make the right decisions voluntarily, his supporters say his decisions have helped Utah maintain both a low mortality and unemployment rate compared to other states in the nation.
Utah’s COVID-19 death rate is about 10 per 100,000. With 327 deaths out of 42,328 cases statewide as of Wednesday, that’s a case fatality rate of 0.8% — among the lowest rates in the nation. Medical experts largely attribute that low case fatality rate to Utah’s statistically young population.
Last month, Utah’s unemployment rate dropped to 5.1% from over 10% earlier in the pandemic. That’s compared to the U.S. unemployment rate, which still lingers around 11%. Economist Natalie Gochnour called Utah’s recent unemployment rate “an incredible surprise to really all of us to see it drop that quickly.”
“And it says something about the degree to which our economy reopened. The governor called it a dial, but we treated it like a switch,” Gochnour said. “And, you know, maybe we will live to regret that a bit.”
Wilson, defending the governor, said those who want to “use the pandemic to score political points” can “criticize all they want, but I think the approach the governor has taken has worked — and has worked well.”
“A strong, qualified, capable leader wants feedback from as many different (perspectives) as he or she can get,” Wilson said. “And the most courageous leaders ... are those that listen to those people, and that’s the cloth Gov. Gary Herbert has come from.”
Herbert, according to a new Deseret News/Hinckley Institute of Politics poll, continues to have fairly strong favorability numbers among Utahns, with 59% saying they approve of his job performance, while 29% say they disapprove. Most Utahns also tend to approve of Herbert’s job performance regarding his response to COVID-19, with 57% saying they approve — though 36% disapprove.
That same poll also found that most Utahns — 43% — said they believe the governor should require everyone in the state to wear a mask in public at all times. In contrast, 36% said they believe individuals should decide for themselves whether to wear a mask.
Herbert’s approach to leave many pandemic response decisions — like mask mandates — up to local jurisdictions (while the Legislature passed a bill to require the governor’s permission for those mandates to take effect) has frustrated some Democratic lawmakers like King and Rep. Jennifer Dailey-Provost, D-Salt Lake City, who said that has left Utah lacking bold, unified leadership it needs while sending the public mixed messages about what needs to be done to limit the spread of COVID-19.
And they say it’s obvious that the state’s economic reopening is what prompted a surge in coronavirus cases.
“Sometimes it does feel like there is a bit of a leadership vacuum,” Dailey-Provost said.
In early June, Utah’s daily average new case number doubled from 200 to 400, what officials deemed an official “surge” in cases. That happened about two weeks after restrictions were lifted when Utah moved into its yellow, or low-risk phase in the pandemic.
Herbert, while he urged Utahns to voluntarily wear face masks in a July 9 press conference (when he announced a mask mandate for schools, but stopped short of a statewide mandate), said the state may have made mistakes in its color-coded guidance system, misinforming people about actual risk. Going from red (high risk) to orange (moderate risk), and then to yellow (low risk), Herbert said people thought they didn’t have to take as many precautions.
“We did not anticipate that people would change their behaviors and be more casual and cavalier,” he said. “We’ve become a little complacent and lackadaisical. Let’s take it seriously.”
Dailey-Provost credits Herbert for issuing a state of emergency for COVID-19 early on and acting swiftly to implement the “stay home, stay safe” initiative along with certain business closures — which she said she “wholeheartedly supported and, I believe, saved lives.” But since then, as the Utah Legislature’s commission has guided reopening, data-based decisions to protect public health have fallen by the wayside, she said.
“What really stokes a lot of fear and exacerbates that panicky uncertainty for the people of Utah is there isn’t a lot of consistency from leadership,” Dailey-Provost said. “On one hand, you have the state government saying, ‘Counties and cities you have to ask for permission because we’re the decision-making power. But school districts, you’re on your own to make these very difficult decisions. And there will be a mask mandate for schools, but not for the rest of the state.’”
Meanwhile Cox, Herbert’s No. 2 — who is now positioned to take the governor’s seat if he defeats his Democratic contender this fall — has avoided taking strong stances on politically charged topics like mask mandates.
The lieutenant governor headed the state’s COVID-19 Community Task Force when it was more active early on, but he became less visible in the state’s response while running his campaign for governor after being criticized by his Republican primary opponents for “politicizing” the virus. As the debate around mask mandates has heated up, Cox has avoided discussing whether he, as governor, would issue a statewide mask mandate, though he has repeatedly encouraged Utahns to wear masks in social media posts.
A recent Utah County protest against Herbert’s order requiring face masks in schools shows there’s a “a very strong and strident opposition” to government actions to combat COVID-19 from some conservatives, David Magleby, professor emeritus of political science at BYU, said in a recent interview with the Deseret News. Meanwhile, those on the left continue to criticize inaction.
“That put Cox in a bit of a box,” Magleby said at the end of July. As the pandemic continues, he questioned how long Cox is “going to be able to lie low in this environment.”
Cox says he would “prefer not to have” a statewide mask mandate. “If we can get people to wear masks without mandating it, that’s the best of all scenarios,” he told KSL-TV this week. “And people are doing better ... but it’s still not where it needs to be.”
Asked why not mandate masks for the state if they’re working, Cox said, “There are people who push against that; there are people who (say), ‘We won’t do it if you mandate it anyway.’ And how do you enforce those types of things?”
In the KSL interview Cox also would not say what he would do if he is elected governor.
“If I get to be the governor, I’ll tell you about that,” Cox said. “But right now I can’t get out ahead of him (Herbert) on this. He’s asked me not to get out ahead of him on this. He’s asked me not to weigh in on this one. And I support the governor, I’m still the lieutenant governor. ... There are a lot of people in in the administration who were pushing for a mask mandate, and there are some who are pushing against it. Legislative leadership also plays a role, and we can’t ignore the Legislature.”
King worries the absence of firm leadership from Herbert’s administration has led to an erosion of the governor’s executive powers while the Legislature has made several moves to control the state’s pandemic response.
“There’s been a power vacuum, to some degree, where some people have stepped up and tried to exert their influence,” King said.
But other legislators see it differently. Rather, some — particularly far-right conservatives — thought the governor went too far when he put restrictions on certain businesses based on their level of risk early on in the state’s pandemic response, concerned those actions damaged the economy more than necessary. Restaurants were prohibited from dine-in service, and gyms and salons were shut down.
“The governor was really governing off of reaction and media and pressure,” said. Rep. Paul Ray, R-Clearfield. “From the Legislature’s side, our pressure was coming from our citizens who were shut down and losing their businesses.”
Additionally, some legislators have been frustrated the governor hasn’t acted quickly enough to transition the economy to the green or “new normal” phase — something the governor still hasn’t done, despite some legislators’ wishes.
So to Ray, rather than a “leadership vacuum,” there’s simply been a desire to balance legislative power with the executive branch’s emergency powers.
Wilson and Senate President Stuart Adams, R-Layton, are both complimentary of Herbert’s collaborative style, saying they’ve worked well with a governor that wants to include legislative perspectives in decision-making. They also said the Legislature’s special session maneuvering — including the 24-hour notice bill and the creation of the legislative COVID-19 commission — have been efforts not to encroach on the governor’s powers, but rather to ensure the proper balance of power during a prolonged state of emergency.
They say their aim has only been to ensure the Legislature has the ability to fulfill its constitutional duty.
“The Legislature’s role is policy and the budget, and we will always do what we need to do to ensure we remain in the place where we’re leading and managing that part of the state,” Wilson said.
“None of us have ever been in the Legislature during a pandemic, nor the governor during a pandemic, so there was a natural and expected, I think, kind of balance that needed to be found, and it seems like we strike that.”
Adams said he hasn’t been focused on the governor’s or anyone else’s leadership style or “who has what power,” but rather that state leaders are solving the problems that need to be solved — including for both public health and economic health.
“It isn’t a matter of trying to exert power,” Adams said. “It’s that it’s better to have 104 (legislators) make policy than for one person.”
Both Wilson and Adams said they don’t always agree with Herbert, but they maintain a good working relationship with the governor.
In a prepared statement in response to the Deseret News’ request for an interview with Herbert and Cox, the governor’s office said, “We don’t negotiate occasional differences with the Legislature in the media.”
“The Legislature and the governor’s office are united in their focus on public health and the economy,” the statement said. “The governor and lieutenant governor meet at least weekly with the speaker and Senate president to address the ongoing and dynamic situation facing our state as a result of the impacts of the pandemic. We are grateful for their hard work and contributions in these crucial matters.”
ProPublica, a national independent, nonprofit newsroom that produces investigative journalism, recently reported how Utah legislators who felt Herbert was not acting quickly enough to lift restrictions on businesses created the commission to guide economic reopening. ProPublica’s review of email correspondence and interviews with more than a dozen state and local officials detailed how public health experts were “sidelined” while decisions were made to prioritize the health of businesses.
Wilson called assertions that Utah pushed aside health expertise to prioritize business interests “absolute fiction,” saying health officials’ advice has been weighed in the commission’s recommendations.
State epidemiologist, Dr. Angela Dunn, in a recent interview with the Deseret News, said Herbert has involved public health experts like herself in decision-making around reopenings and masking, but she wasn’t involved in other decisions made by the Governor’s Office of Management and Budget on specific issues, including the later-refunded purchase of hydroxychloroquine or controversial no-bid contracts with tech companies.
While Dunn is a member of the COVID-19 Community Task Force, those members aren’t members of the Legislature’s commission. They participate in a work group to give input, but aren’t involved in final decision-making regarding the loosening of restrictions, according to ProPublica’s report.
Dailey-Provost said she used to get updates from the task force. “But then those updates stopped” when the Legislature’s commission took over, she said. She worries the commission’s recommendations to the governor show the commission has given business interests “more weight in the decision-making process.”
“My biggest frustration through all of this is there were goal posts set up on how we measured how successfully we got the pandemic under control, and as we’re not meeting those goal posts, they’re changing,” she said.
“We have to decide what public health looks like, and we have to decide what under control means, and we have to do what we need to do to meet those requirements, not continue to lower the bar, because we cannot regain this world we used to live in.”
Senate Majority Whip Daniel Hemmert, R-Orem, who sponsored the bill to create the commission, defends the 10-member body, saying it has been using daily state data and medical expertise to guide its recommendations. He argues it’s been a “collaborative” body that does take input from the Utah Department of Health and weighs that data to make recommendations for the state as a whole.
He noted the commission forwards those recommendations to Herbert — and it’s still up to him to decide whether to approve those recommendations. He said that shows the commission isn’t meant to detract power from Herbert.
“It’s more of an attempt to create a mechanism or at least a viewpoint that balances both public health and economic impacts,” Hemmert said. “It was more about that than trying to insert (the Legislature) into the governor’s decision-making process.”
To Hemmert, the governor — though he has criticisms from both sides — is doing well balancing the needs of Utahns amid a time of crisis.
“No matter what he does, he’s going to have detractors,” Hemmert said. “He’s done a pretty good job walking a razor’s edge.”
To political pundits, it’s an age-old, natural phenomenon: the constant power struggle between the executive and legislative branches of government. And it’s no surprise the Utah Legislature has made maneuvers during the pandemic to exert its influence, especially during a state of emergency when the executive branch is granted even more power than usual.
“It’s an extraordinary moment,” said Adam Brown, an associate professor of political science at Brigham Young University, of the pandemic. “But it’s highlighting, maybe in an extraordinary way, a very ordinary pattern.”
Brown and Matthew Burbank, a University of Utah political science professor, don’t necessarily see an “imbalance” of power forming. Rather, they said the Legislature’s maneuvering is to be expected in the state’s structure of government.
“I’m not so sure it’s the Legislature taking advantage of the governor not acting as much as it is something that we see periodically in state government — this tussle over who gets to do what,” Burbank said, noting that over the years there’s always been that natural power struggle.
The 2018 constitutional amendment did “change that balance a bit,” Burbank said, but overall the governor continues to have weighty executive powers when compared to the Legislature.
Brown also noted state legislatures, by nature, tend to be more “assertive” when trying to exert themselves against executive powers. But when comparing the powers of Utah’s governor and Legislature to other states, Brown said political analysts tend to rate Utah’s governor as among “the strongest in the country,” while Utah’s Legislature is “among the weakest.”
“That tends to suggest that a governor who wanted to pull attention and power toward the governor’s office would have every opportunity to do so in this state,” Brown said. “And perhaps Herbert’s style has been to defer more to the Legislature.
“Whether that’s a good or bad thing, that’s entirely in the eye of the beholder.”
As for the criticisms of Herbert not being a strong leader — those criticisms have existed for years, long before the pandemic, Brown said.
“This is a criticism from people, mainly on the right edge of the Republican Party, have been making against Gary Herbert for a long time,” Brown said, noting that they’ve called him “more of a manager and not a leader.”
“Those criticisms have been there forever,” Brown said.
In the case of the pandemic, “it’s hard to know how to validate those criticisms,” he said, noting that Herbert showed “much more willingness to confront the pandemic on his own in March” when he restricted certain businesses, but then that changed when the Legislature injected itself by creating the commission.
During the pandemic, certainly Herbert hasn’t been as strong of a governor as, for example, New York Gov. Andrew Cuomo, Burbank said, but that’s to be expected of Herbert, who’s walking a trickier political line in a red state like Utah, where statewide mandates wouldn’t be warmly received.
“I think what he’s doing is looking at the reality of Utah politics and recognizing a mask mandate that may work well in Salt Lake County is not going to work that well in Emery County,” Burbank said. “Rather than pick that fight, he’s trying to have it both ways.”
And even though Herbert isn’t running for reelection — a time some could argue would be opportune for the governor to take bold or unpopular actions to stop COVID-19 from spreading in Utah — bold isn’t necessarily Herbert’s “style,” Burbank said.
“He’s a small government guy.”
To Brown, Herbert could also be reluctant to issue statewide mandates knowing that he would only end up countered by a Legislature who would fight hard against that move.
“There’s good reason to think he’d promptly be rolled by the Legislature if he went down that road,” Brown said.
Because of the power of the executive branch’s bully pulpit, it’s not unusual for the governor to be criticized for how he is or isn’t using his power.
“People always seem to be in favor of executive power when it’s in their interest,” Brown said.