Dunleavy said he won’t veto K-12 funding but continues to argue it should be available for veto

After proposing a $325 million cut to K-12 schools, Alaska Gov. Michael J. Dunleavy pledged earlier this week that he would not veto school funding. That’s an easy enough promise to keep because there’s no school funding on the table to veto in either the House or Senate versions of the operating budget.

The Legislature already approved school funding for the upcoming fiscal year with the budget it passed last year with the intention of sparing districts from worry over the always-contentious budget process, but Dunleavy and Attorney General Kevin Clarkson are continuing to press the legal case that such forward funding is unconstitutional.

They argue that the only resolution is to add education funding into the budget, which would also happen to make it available for veto.

“Heeding the advice and guidance of House Republicans and his Attorney General, Governor Dunleavy believes ‘failing to fund education in the budget ignores the constitution’ and ‘creates a situation where education will not be funded after June 30, 2019,’” explained a news release from the administration on Wednesday.

The legal argument also conveniently emerged just as the governor escalated threats of using his line item power to balance a budget deficit, $1 billion of which is due to a $3,000 dividend to deliver on his campaign promise of a full dividend.

The argument

Clarkson released an updated legal opinion on the matter today that continued the argument, arguing that it violates the Alaska Constitution’s rules regarding annual budgeting.

“It is the Department of Law’s opinion that legislative appropriations that attempt to bypass the annual budgeting process by appropriating future revenues for future years violate the annual budgeting process mandated by the Alaska Constitution,” said Clarkson’s legal opinion.

Here’s what the constitution says about the budget:

The governor shall submit to the legislature, at a time fixed by law, a budget for the next fiscal year setting forth all proposed expenditures and anticipated income of all departments, offices, and agencies of the State. The governor, at the same time, shall submit a general appropriation bill to authorize the proposed expenditures, and a bill or bills covering recommendations in the budget for new or additional revenues.Alaska Constitution, Article IX, Section 12

In essence the attorney general is arguing that because the constitution only mentions the upcoming fiscal year that a budget therefore cannot reach beyond that. This would ignore what the Legislature has long done with multi-year capital project budgets.

Clarkson also argues against forward funding, saying it violates the constitutional prohibition against one Legislature binding another. This is a provision that the Legislature’s legal team has already weighed in on. They essentially argue that it’s not binding because the Legislature has the right to change its mind by simply passing a law.

The House was even given this opportunity when Minority Republican Rep. Ben Carpenter put forward an amendment on the operating budget that would have repealed the forward funding of education and added veto-able funding to the budget.

The measure failed 27N-10Y with three minority Republicans (Reps. Merrick, Shaw and Rasmussen) joining the majority coalition in rejecting it.

The legislative legal team has also noted that a lawsuit challenging the constitutionality of forward funding would also need to take into account that the governor has already recognized the validity of forward funding when he proposed budgets that would have repealed it. By attempting to repeal it, the legal team argues that the governor has already acknowledged it as legitimate.

It also should be noted that courts don’t magically strike down laws on their own. It requires a lawsuit challenging the law, so someone would have to specifically bring a challenge against education funding for this to arrive in front of the courts.

Legislative indifference

Suffice it to say, the latest developments have not swayed the Legislature from its steadfast defense of the issue.

“The majority is standing firm on our appropriation authority. We forward-funded last year for this year,” Senate President Cathy Giessel, R-Anchorage, told the Anchorage Daily News on Wednesday. “The Legislature has authority, and to acquiesce that authority, we feel is not what we want to do.”

House Speaker Bryce Edgmon, I-Dillingham, stood by Giessel in a statement released today. The forward funding was done to give schools greater certainty in planning their budget, and he said the governor’s newfound legal argument only serves to cast a cloud over what was meant to be a worry-free year.

“The governor is subjecting students, parents, and teachers to an unnecessary legal and political fight,” he said. “We stand with the Senate and remain firm in our belief that the Legislature acted in a legal and appropriate fashion when it forward funded K-12 schools last year.”

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