Attorney General says forward funding of education was unconstitutional

ALSO, DEMOCRAT-LED MAJORITY SIDE-STEPS VOTING ON PERMANENT FUND DIVIDEND

Alaska’s attorney general has sent a letter to the House and Senate saying that that binding the appropriations of a future legislature is unconstitutional.

He was referring to the actions by the 2018 Legislature in forward-funding education for 2020. And the action of the current Legislature in repeating the process and forward-funding education for 2021.

Such forward funding binds the hands of future lawmakers and future governors, making it unconstitutional, in AG Kevin Clarkson’s opinion.

Clarkson is known to be a constitutionally adept attorney. When he was an attorney with Brena, Bell, & Clarkson, the firm boasted of his specialty by describing him thus: “Mr. Clarkson also has substantial experience representing parties in both state and federal courts regarding complex constitutional matters.”

The Legislative Legal agency disagrees with Clarkson.

A letter from the Legislative Legal division was issued on Wednesday saying that the advance-funding decisions of last year’s Legislature were valid. That’s because the language of the 2018 appropriation for the 2020 education budget uses the term “amount necessary,” and the legal services agency says that the term is “standard appropriation language routinely used by the legislature to describe a means of calculating a total appropriation and has consistently been used in recent years to fund education.”

In other words, this is the way we’ve been doing it.

Attorney General Kevin Clarkson described the constitutional problem: “Although proposed spending for K-12 education was included in each of the budget proposals presented by the executive branch [the governor] … the operating bill being debated by the House does not include a K-12 appropriation. It appears the intent of the House of Representatives is to rely solely on an appropriation included in the education funding bill enacted in 2018 (HB287). It appears that the House is also proposing a similar approach to funding education for FY 21,” he wrote.

Indeed, the House operating budget, HB 39, has funding for education for 2021, but not for 2020, which starts in July. Last year, the Legislature was just saying it intended to fund education for 2020. It didn’t actually set the money aside.

“In the Department of Law’s opinion, the 2018 appropriation that ‘forward funded’ education by committing a future legislature and governor to spend future revenues on education is unconstitutional.”

Clarkson said that in addition to violating the prohibition against dedicated revenues, the practice violates the framework of the constitution that allows lawmakers and the governor to evaluate spending in light of all the priorities they’re presented with. It also violates the Constitution because the governor cannot line item veto the past year’s appropriation. Or can he?

“Unless the Legislature appropriates education funding for FY20, there will be no lawful appropriation for that year,” Clarkson wrote. That means, no money for the coming school year.

“Unlike past forward funding appropriations that committed current year revenues to be spent in future years, both the appropriation in HB 287 for FY20 education spending and the appropriation included in the current committee substitute for HB 39 for FY 21 education spending would require the expenditure of future year revenues. This act unconstitutionally dedicates revenues and sidesteps the constitutionally  required annual budgeting process including the governor’s line-item veto,” Clarkson reasoned.

Article 9 Section 7 says: “The proceeds of any state tax or license shall not be dedicated to any special purpose, except as provided in Section 15 (permanent fund) of this article or when required by the federal government for state participation in federal programs.”

Forward funding with the proceeds of future funds is a dedication of funds specifically barred by the Alaska Constitution, Clarkson wrote.

In fact, former Gov. Bill Walker included the education appropriation for 2020 in his budget submitted in December.

Fixing that problem was one of the amendments that the House Democrat-led majority refused to hear today during the final passage of the 2020 operating budget. It caused frustration among the 15-member Republican minority.

Today on the House floor, minority members expressed frustration that the Democrat-led majority would not allow amendments to be heard, but went directly to the final vote on the passage of the budget.

Other amendments that were left on the desks included one that would provide for a Permanent Fund dividend, and another that would fund education in the coming fiscal year.

“Because of the Majority’s refusal to take up amendments directly addressing the Permanent Fund Dividend the people of Alaska won’t have the opportunity to know who in the House supports taking money out of their pockets,” said Rep. Ben Carpenter of Nikiski.

“The House has made little effort to make changes. Not only were our compromises rejected, but no alternative spending plans were offered,” said Minority Leader Rep. Lance Pruitt (R-Anchorage). “This isn’t the budget we would expect during this current fiscal climate. Not only does this budget maintain the status quo by not reducing spending, we have further increased the budget by $56 million in unrestricted general funds from the House Finance version.”

The budget passed, 24-14, along caucus lines.