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School finance: How solving one constitutional problem can create many more
As the Kansas Legislature tries to fix one set of constitutional problems with education funding, it'll be interesting to see whether they create a whole host of new ones, or at least open up a can of constitutional worms, simply in the way they're going about it.
The Kansas Supreme Court recently ruled that lawmakers have violated their duty under Article 6 of the Kansas Constitution by failing to provide "equitable" funding in two areas of public school finance. But in their attempt to solve that problem, lawmakers may be creating new problems stemming from Article 2 of the Constitution dealing with legislative powers: the ban on multiple subjects in a single bill and the limits of the governor's line-item veto authority.
Article 2, Sec. 16 provides that, “No bill shall contain more than one subject, except appropriation bills and bills for revision or codification of statutes.” (Emphasis added.) The problem is that the school finance bills now wending through the House and Senate do both – appropriate money and revise existing statutes.
Attorneys in the Revisor of Statutes office, the Legislature's official legal counsel, are saying that's okay, as long as the appropriations and the statutory changes all relate to the same topic, in this case “education.”
But here, lawmakers may be pushing the limits on that. On the Senate side, at least, the policy changes relate directly to the school finance formula itself - tweaking (or eliminating) different "weightings" that affect how different types of students are counted.
But on the House side, often the more ambitious and less disciplined chamber - GOP leaders are going after broader policy changes, such as teacher licensing requirements and setting up a new, independent "commission" outside the authority of the State Board of Education to recommend ways schools can become more efficient. Earlier version of the House bill included a massive expansion of charter schools and authorization for incentive-based bonuses that principals, at their sole discretion, could dole out to favored teachers.
Assuming, for the sake of argument, that those measures pass the one-subject-per-bill test, they would still raise another question: How much authority, if any, does the governor have to “line-item veto” any of those measures - or any individual paragraphs within them - without rejecting the overall bill in its entirety?
Article 2, Sec. 14(b) states: “If any bill presented to the governor contains several items of appropriation of money, one or more of such items may be disapproved by the governor while the other portion of the bill is approved by the governor.”
Two key phrases here are “several,” and “such items?”
The standard rule in journalism is that “several” means at least seven or more, but that's just journalism. In the Legislature, "several" could easily mean anything more than one. And each of the bills now pending in the Legislature contain exactly two: one for capital outlay funding; and one for local option budgets.
But these bills contain many “items” besides appropriations. So where the Constitution says the governor can veto one or more “such items,” does that refer only to items of appropriation, or any "items" in the bill, whether they appropriate money or not?
A plain reading would seem to suggest the former. But this is where previous Legislatures have already made a mess of things, and thereby established precedents that may not be to anyone's liking. They're called “provisos,” and here's how they work:
“There is hereby appropriated for the (fill in agency's name here) the sum of $1 million, provided that no such money shall be spent unless or until said agency adopts a particular policy that a tiny cabal of low-level legislators would like, but the other chamber would never accept unless we use this amateur tactic to hold the entire budget process hostage until we get what we want, at least for one year.”
Kansas lawmakers have made increasing use of the proviso over the last 10-15 years by using the entire state budget as a bargaining chip to get a policy change in one or more area of government. And as they have done so, governors have claimed a corresponding expansion of their line-item veto authority. That is, they have line-item vetoed the proviso language without vetoing the money attached to it.
Former Gov. Kathleen Sebelius, a Democrat, did that on more than one occasion, much to the consternation of Republicans who thought she was stretching her constitutional authority. But the pending school finance bills have the potential to elevate this power game to a whole new level.
Take, for example, the language calling for a new “efficiency” commission: If that were presented to the governor as a stand-alone bill, he could either sign it or veto it in its entirety. He could not strike out individual paragraphs – like the ones giving minority party leaders appointments to the commission – while leaving the rest of the bill allowing Republican leaders to make appointments in tact.
But could he do that to language inside a mega-bill that also contains appropriations? Officials in the Revisor of Statute's office wouldn't opine on that question Monday. And as for the governor's office? “We are not commenting on pending legislation,” Brownback's press secretary Sara Belfry said via email. “The Governor will carefully review and consider all aspects of this bill once passed by both legislative houses.”
Meanwhile, lawmakers can take solace in one historical fact. It is rare for courts to strike down any legislative act for violating the one-topic-per-bill rule, and rarer still to do so strike down an illegal line-item veto. Because before any court could do so, some "aggrieved party" would have to challenge it in court. And in this case, someone who's aggrieved by one aspect of the bill likely has an interest on the other side, and therefore doesn't want to risk seeing the entire act overturned on a technicality.
That is the art of compromise.