The House and Senate today agreed to delegate authority to the Legislative Council to proceed with a lawsuit that should determine if forward appropriating education is constitutional, when money is not actually set aside for that purpose.
In other words, is a Legislature’s promissory note for future fiscal years something that holds water in constitutional terms?
Alaska does not have a biennial budget, like some other states. It does its budget every year; the 2020 fiscal year starts July 1. The FY 2020 budget is so far, unfunded because the operating budget has not passed. But last year, the Legislature forward-appropriated funding for the FY 2020 education budget.
But the governor says that action is not legal. He has asked the Legislature to put the FY 2020 appropriation into this year’s budget. And his Attorney General has backed him up on the assertion.
What happens next? The Legislative Council will meet and direct the Legislature’s attorney Megan Wallace to file a lawsuit against the governor. The Attorney General will defend the governor’s position.
Meanwhile, the courts may decide that education must be funded while the question is decided.
The last time the Legislature sued the Office of the Governor was in 2015, when Gov. Bill Walker expanded Obamacare-Medicaid via executive order, after the Legislature had balked on such an expansion. The case was dropped by the Legislative Council after losing in Superior Court. The case cost the Legislature $300,000 and cost the Walker Administration $137,000 in legal expenses. It dragged on for months.
In that lawsuit, lawmakers framed it as a constitutional question of who had the power to appropriate — the Legislature or the governor.
In this lawsuit, Rep. Tammie Wilson, co-chair of House Finance, said it was the governor who had picked a fight: “That’s on them,” she said. “We fund our budget this way all the time.” She made it a point to criticize Dunleavy on the House floor.
But Sen. Gary Stevens sees it differently.
“This is no attempt to poke the governor in the eye,” said Sen. Stevens, co-chair of Legislative Council. “This is a separation of powers issue. We will not do anything until the governor withholds the money for education.”
House Speaker Bryce Edgmon explained that the governor has invited the question to be decided, and that since the governor does not have the ability to sue the Legislature, the Legislature must initiate the lawsuit.
“Let’s settle this issue. Does the authority of the legislature include forward funding of the Legislature?” said Senate President Cathy Giessel.
Rep. Lance Pruitt, who leads the House Republican Minority, said the consequences are monumental if the Legislature wins the case, as it will allow the body to appropriate for as many years ahead as it wishes and for as many departments as it chooses, with no funding or budget projections to back up the promise.
The governor has said numerous times he would not veto the education budget but wanted it to be actually appropriated in this year’s budget. At this stage, there is no budget for him to veto since it has not been transmitted to him, but he’s likely to veto the entire budget if it does not contain education funding.