Long shot suits set to become Democrat campaign staple

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.

Recognize, then, that this last gasp of those defeated in the marketplace of ideas serves both policy and political functions, as a desperate effort to undo majority rule and to promote the future viability of a party having problems connecting with voters the majority of who fundamentally disagree with the issue preferences it currently pursues. Neither goal likely will be realized, but, as every gambler knows, you can’t win if you don’t play.