The Arizona Supreme Court Throws a Brushback Pitch at the Legislature

This week's column is on the Arizona Supreme Court decision in Bennett v. Napolitano, which you can read for yourself here if you don't want to take my word for it.

Among the interesting sidelights that didn't make my column is the part of the opinion where the Court says that its refusal to become involved in what is essentially a political dispute is supported by the fact that these "lump sum reductions" were a new, never-before-tried, and unlikely-to-be-repeated budget tactic by the legislature. (See ¶35--"We conclude, however, that the unusual method of legislative structuring used in the vetoed reductions at issue in the instant case is likely a non-recurring event. Indeed, neither party has offered evidence that the manner of formatting these reductions in the current budget cycle has ever before been utilized by the legislature.")

I'm not sure that's correct, even though it's dictum and not important to the Court's decision. It appears that Gov. Jane Hull, Gov. Napolitano's predecessor, used the line-item veto a couple of times on some appropriations bills, with the similar effect of increasing the amount of spending authorized by the legislature. However, Hull was a Republican, so the GOP-controlled legislature didn't squawk about it, and I guess it didn't make it into anybody's briefs in the case--or if it did, it got overlooked. But the really big news about the opinion is the Court telling everybody that ORBs, which have been pretty useful to leadership, are pretty much unconstitutional.

For out-of-state readers, on Saturday the legislature and governor reached a compromise on CPS funding and reforms. It's half a loaf and just a start, but it's a start nonetheless. Apparently, cards and letters helped, so get ready to keep those emails coming once the regular session begins next month.


COURT DENIES GOP LEADERSHIP A FAVORITE TACTIC
East Valley Tribune, Dec. 14, 2003

The GOP legislative leadership didn’t just lose this year’s new budget stratagem when the state Supreme Court refused to overturn Gov. Napolitano’s line-item vetoes. They also lost their favorite unconstitutional tool of the past few years, the omnibus budget reconciliation bill (ORB).

To understand the Supreme Court decision, you should understand just how sneaky these vetoed “lump sum reductions” were. The GOP leadership tried (but failed) to outfox the governor with this new legerdemain -- never attempted before and, now that the Supreme Court has spoken, presumably never again.

Here’s how it worked. The Legislature approved spending for specific accounts within various agencies, because micromanaging is loads of fun if you aren’t responsible for running anything. Then, after supposedly appropriating specific sums for these programs, the appropriation bills listed unspecified “lump sum reductions” that reduced overall agency spending.

That’s theoretically a “spending cut” -- promising four programs $50 each, letting legislators claim they voted to give each program $50, while telling the agency somehow to spend only $150 because of an unspecified $50 “lump sum reduction” that only can come from those four programs.

It’s a truly cynical, underhanded move, designed to let legislators do what they do best -- pretending to cut overall spending without ever cutting any specific spending. If anyone complains, they say it’s the governor’s fault.

Legislative leaders then claimed Gov. Napolitano asked for these “lump sum reductions,” but that’s just wrong. The governor did request lump sum appropriations -- where the legislature specifies an overall amount for an entire agency, but leaves it to the governor to allocate funding for individual programs. But the Legislature wouldn’t give this governor that much flexibility, so they developed the “lump sum reduction” tactic, trying simultaneously to micromanage, avoid responsibility, and lie. Call it the “Fast Eddie” Farnsworth Trifecta.

GOP leaders feigned outrage that Gov. Napolitano would use the line-item veto in ways they didn’t approve, resulting in increased overall spending by restoring the Legislature’s own subtotals. But the governor got to increase spending only because of these cockamamie “lump sum reduction” line items. No line items, no vetoes.

Besides, their complaints about use of the line-item veto seem a bit, well, partisan. When he was governor of Wisconsin, U.S. Health and Human Services Secretary Tommy Thompson used his line-item veto power to strike specific words in legislative enactments, making the resulting laws mean something entirely different. Republicans considered that just dandy.

Most importantly, the Supreme Court also told the legislature that their usual way of doing business, by bundling numerous statutory changes into these massive ORBs, appears to violate the Arizona Constitution’s “single subject rule,” which requires legislative enactments to “embrace but one subject.”

The single-subject rule prevents “logrolling,” where leadership crams numerous bad things with the good (or at least necessary) to strong-arm legislators into swallowing the entire package. The GOP leadership admitted as much after the decision, acknowledging that they didn’t know how to pass the unpopular stuff if they couldn’t hide it in the must-pass bills. Apparently Jake Flake also loved Pirates of the Caribbean; to him, it’s not a constitution, it’s more like “guidelines.”

The public interest won’t suffer if ORBs disappear, but legislative Pooh-Bahs will. They used bloated, massive ORBs to force the rank-and-file to vote for unpopular, last-minute legislation, and don’t have a replacement tactic available. If each bill has to rise or fall on its merits, leadership’s in deep trouble.

That’s the real result of the Supreme Court decision. Not only didn’t the legislative leadership win, they lost big time. Let see if these guys can figure out how to do things constitutionally in the future. Here’s betting it won’t be pretty.