Budget approval improper, again
Omnibus tax and reconciliation bills blatantly, shamelessly unconstitutional
The state budget season isn’t truly over, at least to me, until my annual crank about it being unconstitutionally enacted.
The state budget isn’t just one piece of legislation. There is the general appropriations bill, colloquially known as the “feed bill,” which lists state departments and agencies and how much money they are appropriated for next year.
Then there are eight “budget reconciliation bills.” These enact a hodgepodge of changes to various state programs purportedly associated with the budget. And this year, there was also an “Omnibus Tax Provisions bill.”
The budget reconciliation bills, and this year’s omnibus tax bill, are blatantly, and shamelessly, unconstitutional.
The state Constitution says that individual bills “shall embrace but one subject and matters properly connected therewith.” The only exception is the feed bill. But, according to the Constitution, “(t)he general appropriations bill shall embrace nothing but appropriations for the different departments of the state ...”
So, unless it is just a list of agencies and numbers, bills can cover but one subject.
Here are some of the more egregious violations of that rule in the BRBs.
The Budget Procedures BRB sets forth, among many other things, the internal charges between state agencies, such as for rent or services. Then there is this non-budget humdinger: permission for state political parties to opt out of the state’s presidential preference primary in 2020.
The Health BRB has a myriad of provisions, most of which move money around in some way or another. It would be hard to say they “embrace but one subject,” but they are at least arguably budget related. But then there is a requirement that unlicensed behavior health workers be at least 21 years old to provide services in an impatient facility.
Tax changes clearly are not appropriations and thus the one-subject rule unarguably applies. Nevertheless, the Omnibus Tax Provisions bill includes both income tax alterations to conform to federal changes and a broader application of the state’s sales tax to internet purchases.
These two provisions became politically interrelated, since lawmakers went further with the income tax changes due to the anticipated greater revenue from the internet sales provision. But they are clearly two distinct subjects, and the one-subject rule was precisely designed to prevent this kind of legislative logrolling.
Another revenue provision, repealing the public safety car registration fee two years hence, was buried in the Criminal Justice BRB, along with a provision exempting corrections officers from jury duty until 2022.
An entirely new program — providing schools additional money for each student who obtains a technical certificate — was established in the K-12 Education BRB, which also makes substantial changes in Gov. Doug Ducey’s resultsbased funding program, not to mention adjustments to various components of the school finance formula.
The Human Services BRB allows the Department of Economic Security to reduce income eligibility for child-care assistance if there is a funding shortage. And to drug-test Temporary Assistance for Needy Families recipients. Find the “one subject” in that.
My award for the most egregiously unconstitutional provision goes to the Higher Education BRB. The bulk of the BRB makes changes to Ducey’s Arizona Teachers Academy, offering free tuition to those who pledge to teach in Arizona schools. But it also contains a provision prohibiting community colleges from compensating employees for time spent working for their union.
Not only is that a policy matter, not an appropriation, it can’t even really be argued to be related to the state budget – since the state offers no general operating funds to the community colleges in the two largest counties, Maricopa and Pima.
These BRBs have turned into minilegislative sessions, negotiated entirely behind closed doors. They trample on both the state Constitution and democratic norms.
Someday, some aggrieved party is going to sue over some BRB provision, claiming that it was unconstitutionally enacted. Here’s hoping the courts will have the gumption to uphold the democratic norms the state Constitution was intended to prescribe and protect.