Well, Duh

In a move that should have surprised nobody, but will doubtless inspire more than a little well-practiced umbrage from the legislative leadership nonetheless, the Arizona Supreme Court unanimously ruled this week that the Legislature’s diversion of funds from the State Land Trust to balance the budget was unconstitutional.

This sort of thing has happened so many times before that it is safe to assume what happened back in 2009 when this was passed. The Democrats, in committee and on the floor, pointed out that this move was problematic, only to be ignored or rebuffed. Then, the House and Senate passed the measure despite the fact that their own attorneys told them that it was likely to be overturned.

Attorneys and judges make the big bucks in large part because the constitution is “a living document” that to a great extent is open to interpretation. Every generation of Arizona Students Association activists, for example, faces disappointment when they learn that the legislature and the courts disagree with them about what Article 11, Section 6 means when it says that higher education “shall be as nearly free as possible.”

Unfortunately for the Governor and her attorneys, the language involved here was far less equivocal. In fact, it is downright verbose in its specificity. One snippet, however, could well have been the basis for the entire decision:

B. No monies shall ever be taken from one permanent fund for deposit in any other, or for any object other than that for which the land producing the same was granted or confirmed.

To most people, the intent here seems pretty clear. It is even more so when one considers the history of how the State Trust Lands came to be. Back in the late 19th century, Congress tended to be leery about granting statehood to the western territories, not only for partisan political reasons, but also because of a perception that the territorial legislatures, Arizona’s in particular, tended to be reckless and irresponsible. Also, by the time Arizona became a state, Congress, having had the experience of granting trust lands to new states since 1793, was eager to prevent these resources from being squandered or otherwise mismanaged as they had on occasion in the past.

The result of this is that the integrity of the Trust is protected not only by the Constitution, but also in the Enabling Act, the federal law which allowed Arizona to become a state in the first place. This is why all but the most modest of changes to the system would need not only a ballot measure to change the Constitution, but could potentially require an act of Congress. Even one of the architects of the scheme, Rep. John Kavanagh (R-Fountain Hills), in his comments in the Star this morning, seems to admit that a legislative fix to reverse the ruling would be more trouble than it would be worth.

This all begs the question of why the Legislature ever thought this would work. They cannot very well claim ignorance, though it may seem tempting for some to agree. But, then, in the environment of unnecessary haste and phony urgency that the legislative leadership creates around the budget, asking questions is considered rude if not treasonous, and it is understandable that the members would let minor matters such as the State Constitution slide.

Alternately, it is also tempting to blame this on the legislature’s clueless failure to accept its role as a co-equal branch of government under the Constitution. Time and time again, the legislature’s claims to supremacy over the Governor, the courts, and even the Tucson City Council have been rebuffed, yet they still persist in this delusion. Thus, they waste considerable taxpayer dollars picking fights that they almost always lose.

Yet another hypothetical assumes that the legislature knew what they were doing all along and expected this very result. After years of domination by a “starve the beast” mentality, there remains little room for cuts in the state budget, and the majority is impaired by a dunderheaded refusal to consider the issue of revenue, so there are very few options when tackling the budget. Under these circumstances, it is easy to imagine that they would say something like “Heck, I know that it is illegal, but we can transfer this $13 million and get this thing done for the year. We can worry about how to make it up later when the courts tell us that it is unconstitutional. It is June already and I just want the session to end so I can go on vacation.”

Of course, this would be the same sort of “accounting trick” for which the Republicans still criticize the previous Governor. Perhaps consistency is a bit too much to hope for.

The larger question is whether this makes a big lie out of Republican posturing about fiscal discipline. The fund transfer was unconstitutional, and now $13 million dollars is unaccounted for. Sure, the money can be found elsewhere with a little work, but, for the time being, can this budget really be considered “balanced?”

NB: Arizona Bill designed by Bob Richards