OPINION: Legislature should drop pointless education fight

  • Alaska Senate President Cathy Giessel, left, speaks during a news conference on education funding held by state House and Senate leadership on May 28 in Juneau. Seated beside her is House Speaker Bryce Edgmon. The Legislature has authorized a lawsuit against Gov. Michael J. Dunleavy’s administration in the event he follows through on his pledge to withhold education funding if it isn’t included in the current budget being crafted in conference committee. (Photo/Becky Bohrer/AP)

In a rare display of bipartisan and bicameral unity, the leadership of the Alaska House and Senate took a break from not accomplishing anything to hold a press conference on May 28 announcing their intent to sue Gov. Michael J. Dunleavy if he follows through on his belief that the Legislature has not properly funded K-12 education for the 2020 fiscal year that begins July 1.

Dunleavy, backed by a legal opinion from Attorney General Kevin Clarkson, has asserted that the Legislature’s attempt to “forward fund” education in a bill passed in 2018 is unconstitutional as an improper dedication of funds and an end-run around his line-item veto authority.

Having repeatedly failed to accomplish its One Job of passing a budget within the time constraints of a regular session and triggering layoff notices from school districts who require funding certainty, the Legislature passed House Bill 287 that paid for K-12 education in fiscal year 2019 and called for an equal appropriation to be made in the 2020 fiscal year.

The problem with that, Dunleavy’s administration argues, is that the Legislature appropriated money it doesn’t yet have in the General Fund, and therefore it is a dedication of funds prohibited by the state Constitution, and by doing so it robs him of his authority to veto spending in the upcoming fiscal year.

There is certainly no question that the Alaska constitution created a powerful executive branch, particularly in regards to spending. A two-thirds vote is required to override a veto on regular legislation, but a three-fourths majority is necessary to override a veto on spending.

While Clarkson has released a nine-page memo defending the administration’s position, the Legislature has not offered any similar legal analysis backing up its assertion of power other than an argument that boils down to “we say we can.”

Perhaps emboldened by the Supreme Court decision in the lawsuit over former Gov. Bill Walker’s 2016 veto of half of the Permanent Fund dividend appropriation that gave legislators carte blanche to ignore the laws they have passed, they may now similarly believe they can usurp the governor’s constitutional role in the budget process.

Taking the Legislature’s assertion of forward funding power to a logical conclusion, they could have passed a 10- or 20- or 100-year education funding bill and as long as lawmakers never touch the bill they could put a billion-plus dollar budget item on autopilot and outside the reach of Dunleavy or any future governor.

That’s going to be a tough argument to make at the Supreme Court, and despite their protestations to the contrary, this is not a settled legal issue.

The administration’s position is not unreasonable, though if it comes to it and he follows the AG’s opinion and does not transfer funds after July 1 it will surely be portrayed that way. The Department of Law attorneys who testified told the Legislature had the money been called for to be appropriated in the current year on June 30 they would regard it as legal.

Similarly, had the Legislature appropriated money from a fund that actually has money such as the Permanent Fund Earnings Reserve Account, the administration has stated that, too, would be legal.

House Bill 287 did neither of those things. It appropriates money not yet in the Treasury and calls for it in a future fiscal year, which certainly raises the dedicated funds issue.

Dunleavy has promised not to veto education funding if the Legislature puts language in the current budget; he would fail even if he tried as the House Minority Republicans already called for status quo K-12 funding that would be enough to override his red pen.

The legislators who support HB 287 said they did it to ensure stability for school districts, but their decision to dig in over an untested power is only causing more disruption.

With far bigger problems to address regarding unsustainable spending and the dividend, their refusal to abide Dunleavy on this issue and thus guarantee K-12 funding for the upcoming year shows they are actually more concerned with defending their turf than they are in preventing pink slips from going out.

Andrew Jensen can be reached at [email protected].

Updated: 
06/05/2019 - 9:38pm

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