The last day of the legislative session is now in the rear view mirror, the time when we get to find out which portions of the Alaska Constitution are still in effect. You may remember, on the final day of the last legislature, house legislators forgot themselves and claimed to pass five bills into law after the midnight constitutional deadline had already passed. That attempt earned all five bills an immediate veto by Governor Dunleavy. It wasn’t that he opposed the bills, but that the precedent of legislators passing bills after the constitutional deadline was beyond the pale.
You may also remember that the house was not the only body to forget themselves that day. Nineteen minutes before midnight, the senate went even further by attempting to pass into law six separate bills with a single vote on Senate Bill 189. The move was such an affront to the Constitution that Senator Stedman rose in the senate to publicly condemn it, and Senators Stedman and Hoffman initially refused to vote either way on the bill. For my part, I shared similar warnings just prior to the bill being voted on in the house.
See also; Must Read Alaska: Legislators Crossed the Line in Passing Senate bill 189
Unlike the bills voted on after midnight, legislators were more strategic when it came to passing SB189. They ensured that at least one of the six bills crammed into SB189 was a bill that the governor desperately wanted. When the Department of Law determined the bill to be unconstitutional, Governor Dunleavy refused to publicly sign it into law, but he stopped short of formally vetoing it. Under Alaska law, if the governor does not veto a bill, it goes into law without his signature.
That sparked a legal battle. With the help of a very capable attorney, Joe Geldhof, I filed my very first lawsuit (Eastman v. State of Alaska). We invited the court to uphold the Constitution or join the other two branches of government in publicly acknowledging that Art. II, Sec. 13 (the provision in our Constitution that limits each bill to a single subject) has now completely given way to political expediency.
After a seven month legal battle, the court rewarded our efforts by agreeing that SB189 was indeed “unconstitutional“. Seeing the writing on the wall, the legislature went back and passed the bills in SB189 as separate pieces of legislation even before the court issued its final ruling. For the moment, it would seem that Pandora’s Box is again closed.
As he left the constitutional convention in 1787, Benjamin Franklin explained that the convention had produced “A republic, if you can keep it.” These days the emphasis falls squarely on “if you can keep it”.
In the final hours of the legislative session, legislators are bombarded with countless priorities. If my experience in the legislature is any indication, the Constitution is rarely one of them. Perhaps this is why more than 70% of all Republican legislators voted YES on SB189, a vote that involved an abject surrender of constitutional safeguards. They knew that Dunleavy was unlikely to veto it. They cracked the code on that by making sure it included a bill that would be politically impossible for him to veto. In voting YES, fifty legislators took a fateful step above the Constitution.
I would be remiss if I left the impression that the outcome of a single lawsuit could reset the clock as though that step had never been taken. For most legislators, it is easier politically to set aside constitutional safeguards than it is to vote NO on a popular piece of legislation. It is not so much legislators desiring to put themselves above the law as it is legislators choosing not to enforce the law when it runs afoul of their politics at the time.
In a Republic such as ours, legislators are the ones principally entrusted with enforcing the Constitution when it comes to their own conduct. Let that sink in.
What happens when they choose not to? The governor can’t compel them to. No matter how egregious their conduct, the governor is legally barred from even initiating a lawsuit against the legislature.
Yes, all public officials take an oath, but legislators are given tools to enforce that oath that no other branch has. The power to impeach public officials and to remove legislators from office is a power that only members of the legislature are able to exercise. The power to reduce or eliminate the public funding that permits a particular activity to continue is ultimately entrusted to members of the legislature. The power to criminalize conduct and to put forward amendments to the Constitution, these are tools entrusted to the legislative branch of government; not the courts, not the governor.
The governor doesn’t send troopers to arrest legislators when they pass unconstitutional bills. The courts don’t issue arrest warrants and send out bailiffs when legislators vote to set aside the Constitution. The practical reality of this often escapes the public, but when it comes to enforcing the Constitution on legislators, legislators answer only to themselves and to the voters at election time. When fellow legislators look away and the public fails to weigh in, they effectively answer to no one. When legislators grow accustomed to that, they begin passing bills after constitutional deadlines and attempting to pass half a dozen bills with a single vote. District attorneys often enjoy a similar level of public trust in other parts of the country.
During the last legislature, the District Attorney of Monroe County, New York was caught driving 20 miles over the speed limit. What happened next made her traffic stop go viral. She simply refused to pull over. Instead, she drove home, parked in her garage, and told the police to get lost.
On video, she openly mocked the responding police officers, “Do you think I really care if I was going 20 miles over the speed limit?” And in a rare moment of candor for a public official, she said the quiet part out loud: “I’m the DA….If you give me a ticket that’s fine. I’m the one who prosecutes it”, leaving no doubt as to what she intended to do with the ticket once police left her house. While cameras were rolling, she even called up the police chief and asked him to tell his officers to “leave me alone”.
It is difficult to imagine a clearer picture of just how unconcerned many politicians in Juneau are about enforcing Constitutional safeguards than District Attorney Sandra Doorley leading police to her house, casually parking her car in the garage, and then walking into her house, ignoring the repeated commands to return to her vehicle. Call it the swamp. Call it corruption. Call it the good ol’ boys club. SB189 and the subsequent court case highlight only one of the ways legislators have abandoned the public trust.
There are ways to arrest further decline. In a republic, the public always gets to have the final word (if it wants to).
Before embarking on a project to restore public trust we must first come to grips with the state of the current legislature. Under the Alaska Constitution, voters have the right to vote new public debt up or down at the ballot box. Legislators voted to set aside that right when they attempted to pass $1 billion in new state bonds without allowing the public to vote on it. In a ruling that should have surprised no one, the Alaska Supreme Court found that it was unconstitutional. Yet only two members of the House Republican Caucus, myself and Rep. Mark Neuman, voted against it. We have a problem.
