Let the Legislature do its job

Usually, disputes like our state’s intra-governmental tussle over education funding in the McCleary case fit neatly into a policy dispute storyline. This case is different, though. The court and the Legislature do not disagree over the facts of the case – that K-12 schools are inadequately funded by the state – nor do they disagree on the basic remedies or timeline.

Where the Legislature and the Supreme Court sharply diverge, though, is on what the justices should do about what they consider inadequate progress toward meeting the court-imposed McCleary deadline. Justices gave the Legislature a deadline of 2018 for school funding to be adequate, uniform, and stable. They’ve retained jurisdiction over the case in the meantime and are requiring progress reports from legislators on what actions they’ve taken to meet the court’s order.

Legislators submitted their latest report last month, signed by Democrats and Republicans. In it, they point out to the court the political realities of setting budget priorities, the constitutional problems with potential negative court reactions, and say they do believe that 2018 deadline is achievable but “adequate progress” may be difficult to show before then.

More than a few folks didn’t care for the report, including guest columnist Chris Vance here on Smarter Government Washington. Few understand the funding question in the McCleary case better than Vance, and it’s tough to disagree with him when he concludes that Republicans and Democrats will have to find a way to work together if they are to make any progress on the major issues facing state government today, including this one.

Vance gives short shrift, though, to the thorny constitutional issues raised by the case, and to the political realities of resolving the most difficult issue legislators are grappling with in these post-recessionary times. To Vance, it’s mostly a matter of whether or not the court will let the Legislature get away with “thumb[ing] their noses at the Constitution.”

Nose-thumbing or not, the wise course is for justices is to back off and give the Legislature time to do its work – and avoid a constitutional firefight over separation of powers issues between the two branches.

1) The legislative branch is the better place to decide these issues, as both a constitutional and a practical matter.
The court was right to say that K-12 funding is inadequate, and that the way our state funds K-12 schools must change (McCleary’s “uniform” requirement that in many ways is the thornier question than whether or not funding is “adequate”). Indeed, there is no dispute in the Legislature as to funding adequacy. But, if we really want to solve this problem, the court needs to acknowledge that the legislative branch, not the court, is better equipped to balance the overall needs of the state and write a budget that best meets the state’s constitutional duty to fund education.

The recently-retired Justice Jim Johnson aptly observed in his dissent in January, “The legislature – not any court – is the body capable of gathering relevant information regarding competing state budget interests” and funding them accordingly. Additionally, the case’s resolution will have profound effects on the rest of the state budget. Legislators are debating how best to strike that balance. Tax increases? Reductions to other areas of the budget? How much will be raised through natural revenue growth? It’s a necessary and legitimate debate. Does the court believe the judicial branch is in the best position to resolve it?

The court’s potential remedies in the case are also problematic. One under consideration, citing the Legislature for contempt, raises questions. Who is being held in contempt? An entire branch of government? Legislative leaders? Or maybe just those legislators who don’t agree with the court fervently enough?

Most radically, the case could conclude with the court rewriting the state budget itself, a dangerous precedent, and a move that would likely fail on several levels. As Johnson pointed out in his dissent, in addition to the separation of powers issues, the court does not have the history or expertise to do this job well.

2) The court must acknowledge political realities.
There are political realities at play here, and they go beyond merely partisan differences. Writing the state budget is the single most important thing the Legislature does. Do you think we’ll ever see a year where legislators wrap up the budget in February and move on to other issues? Of course not. If you give the Legislature a deadline to do something major, legislators will go right up to the last minute to get it done. The more important the topic, the more true that is. It’s the nature of the process.

The court is also wrongly expecting legislators to, in a sense, guarantee how the process will play out going forward. Legislators were right to point out to the court in their report that, from a practical standpoint, they cannot obligate future Legislatures to do anything. Any “plans” legislators would submit would be purely speculative. Come January 2015, many new legislators will join the House and Senate, changing the two chambers in ways that we can’t know today.

The path forward on resolving the McCleary case involves time, negotiation, and that scary, embarrassing deadline looming over legislators. Legislators made progress on the funding question in the 2013 budget year, adding a billion dollars to K-12 spending, and are likely to do so again in 2015. The Supreme Court should recognize the political realities of resolving an issue of this magnitude and in the meantime wisely avoid a constitutional fight over court remedies. Most importantly, those in the Temple of Justice considering their next move should allow time for these questions to be debated and resolved in their proper place, that big domed building across the street from them.

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