Constitutional objections to school funding are all about politics

Before a bill becomes law in Alaska, it is standard practice for the attorney general’s office to review the contents. At times this leads to letters to the governor detailing questionable elements.

The department lawyers last year did not publish such a review or raise questions about House Bill 287, the measure that includes funding for public schools starting this July. This advance appropriation makes it impossible for the governor to veto $269 million from the school foundation formula for the next fiscal year, but that hasn’t stopped him from trying.

The Dunleavy administration accepted this forward-funding plan in documents earlier this year and did not mention any constitutional objections.

“The amount to fully fund the FY2020 Foundation Program funded through the Public Education Fund was appropriated in Sec 4 Ch 6 SLA2018 P5 L13 (HB287); however, the FY2020 Governor's Amended budget reflects a $269,396.9 reduction to the Foundation Program,” the governor’s budget office said in a Feb. 13 report.

The governor took another step to accept the legality of the decision by saying in his proposed budget that he wanted to reverse the appropriation language and replace it with a lower number.

As time passed, it became clear that the Legislature had no interest in following Dunleavy’s advice to overturn the amount approved a year ago. That’s when the governor and Attorney General Kevin Clarkson invented the idea that the language was unconstitutional all along.

The legal opinion from Clarkson claims the plan to fund schools was an illegal “dedication” of funds and alleges “Although the legislature's action in this regard has been referred to as ‘future funding,’ the more appropriate description of the legislature's action is ‘future appropriating.’"

That’s not what the law says.

What it says is, “The amount necessary to fund the total amount for the fiscal year ending June 30, 14 2020, of state aid calculated under the public school funding formula under AS 14.17.410(b) 15 is appropriated from the general fund to the public education fund (AS 14.17.300).”

The law says the appropriation takes effect on July 1, 2019.

Legislative lawyers and Democratic and Republican leaders of the Legislature disagree with Clarkson and Dunleavy. The governor has a weak hand, made weaker by his decision to raise no constitutional question when he introduced his budget.

The law approved a year ago does not illegally “bind” the current Legislature. The Legislature is free to amend the law, but has decided not to.

Clarkson mischaracterizes the origin of the forward-funding plan with the laughable claim that a year ago the Legislature was making an attempt to reduce the veto power of the next governor.

“It is the Department of Law's opinion that appropriations by the legislature of future revenues for future years at the end of one governor's administration in order to side-step the next governor's line item veto authority violate the Alaska Constitution by improperly circumscribing the governor's veto power,” he wrote.

“Otherwise, in anticipation of a new governor, an outgoing legislature could appropriate future revenues for specific purposes for the next four years and negate the incoming governor's line item veto power over those funds altogether for the entirety of his or her term. This type of end-run around the strong executive contravenes the clearly-expressed intent of the delegates and the structure of the constitution they created.”

That’s not why the Legislature approved school funding in advance.

Legislators approved the plan as a sensible step to give school districts the ability to plan for the future, recruit and keep quality personnel. The sooner the districts know how much money they will have, the fewer problems are created by the political uncertainty in Juneau.

The governor is now saying he won’t veto school funding for the next fiscal year, but wants the Legislature to agree with his political posturing, dressed up as a constitutional crisis. If this escalates into a court fight and a shutdown of school funding on July 1, there will be no one to blame but Dunleavy.

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