There’s nothing like folks who can’t stand losing, especially when one
has started campaigning for higher office over three years out, to bring
controversy over nothing to the last day of the Louisiana Legislature’s 2012
regular session.
The issue concerned SCR
99, the formula for the Minimum Foundation Program, a mind-numbing exercise
in accounting that spits out the state’s allocation to each school district and
a few other state schools and charter operators. It creates a base amount that
then for most districts is increased, some dramatically, while some are given
less because, frankly, they support themselves much better than the typical
district. Constitutionally, the MFP formula is concocted by the Board of
Elementary and Secondary Education and shipped to the Legislature, which may
only approve or disapprove of it.
Normally approved in a perfunctory fashion, this year the House
amended it initially over something called the Early High School Graduation
Scholarship Program that would fund high school students who graduated early
heading to college with MFP dollars. State Rep. John Bel Edwards,
the Old Faithful of lawsuit threats – every time a high-profile but perfectly democratic
vote goes against his preferences, he threatens one will pop up – objected to the use of
such funds. For good measure, state Rep. Joe Lopinto got
passed another to enable the return of the instrument to BESE in order to
comply with the Constitution, as it could not be passed in its amended form.
But BESE said it could not deal with the matter prior to the end of the
session yesterday, and the Senate responded by rejecting the changes, throwing the
matter into conference. That committee then recommended passage as it came from
BESE in its original form. Constitutionally
speaking, if the Legislature did not pass the resolution, by the end of the
regular session or in any special session, it would have to accept the previous
year’s formula.
Which was the intent of Edwards all along, with other opponents of the recently-enacted
scholarship voucher program that would permit children of lower-income families
going to average or below public schools potentially to attend non-public
schools on state MFP money, for last year’s formula had no provision for the
program’s expansion beyond Orleans Parish. Cleverly, he held that coalition mostly
together and then picked off a few others who approved of the new law but not
of the new early graduate program in the MFP.
House leaders worked the membership to make them aware of the
consequences – a special session within weeks to disrupt their lives – no doubt
aided by the Gov. Bobby
Jindal Administration who favored the resolution and would not want to
invite any opportunity, no matter how slim, to have a special session called
early enough to double as a veto override session, potentially reducing the
power he wielded in that area. It paid off when yesterday the House approved
the resolution 51-49.
However, Old Faithful blew steam again, claiming the vote was legally dubious
because it did not have the assent of a simple majority of the seated
membership of the body, or 53, after Speaker Chuck Kleckley
ruled that a simple majority of those present would suffice. None of the
Constitution, Revised Statutes, and House Rules directly addresses the question
of what kind of majority is needed to pass a concurrent resolution, but how
they indirectly deal with this matter strongly supports Kleckley’s
interpretation.
Beginning with the Constitution, Art. III Sec. 15(G) sets
the parameters for votes on “bills” with that simple majority of the seated
membership. What’s a bill? Well, this section indicates it’s something that’s
supposed to be a law or constitutional amendment. House Rule 7.1 defines
three different kinds of “legislative instruments:” a bill, a resolution, and a
concurrent resolution, so they are treated conceptually differently with the
constitutional requirement for a majority affecting only a “bill.” More
specifically dealing with the MFP, R.S. 39:33.2 requires
only “by majority vote of the House of Representatives and the Senate” to
return an amended formula to BESE, which implies that since the phrasing that it
is a majority of the seated chamber needed is not present in the text, and this
presumed majority only of those present works for sending an amended version,
that it also should apply to approval. Thus, defaulting back to Mason’s Manual
of Legislative Procedure, a simple majority of those present ought to be
adequate to pass anything that is not designed to become a law or submitted as
a constitutional amendment.
So, if any of the several lawsuit threats ever get carried out, as with
the rest of them this is very unlikely not to be thrown out and will waste
taxpayer dollars in being dealt with. But that’s not the main motivation in
bringing them, other than replicating the mentality of gamblers who can’t win big
if they don’t play to long odds. It’s no secret that state Democrats wish not
to repeat the fiasco of 2011 when they could field no credible candidate for
any statewide contest, and Edwards, as chairman of the House Democratic Caucus,
is as high profile as any Democrat in state elected office at this time. Finding
a way to speak repeatedly against almost all of the major Republican Jindal
initiatives this session, peppered with bringing or joining in lawsuits to keep the Democrat/Edwards
brand in front of the public for months after the session, certainly will
generate taxpayer-subsidized publicity for a gubernatorial challenger in 2015.
And, find some rogue jurists, and the publicity continues until, if that
happens, higher courts put an end to the nonsense.
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