Thursday, 08 February 2018 19:24

Louisiana legislature should appeal fund sweep court ruling

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kangaroo court2Confusion is as confusion does, which sums up perfectly an incomprehensible ruling on an important question in Louisiana governance.

Yesterday, state District Judge Don Johnson issued a ruling declaring a case of a fund sweep unconstitutional. In this instance, the Legislature lifted from Public Service Commission revenues collected by fees on regulated carriers, appropriating some of that amount to pay for other operations of government.


Interestingly, Johnson last week appeared to have delivered two versions, taking different sides. For whatever reason, it all got sorted out yesterday in favor of a dramatic substitution of judicial opinion for the actual wording of the Constitution.

The rationale behind the ruling would invalidate all funds sweeps, and is as confused as the circumstances behind its birth. Johnson, unbelievably, argued that when the Legislature used its power to appropriate fees intended by a statute that the bill would alter one this single occasion, suddenly the money involved turned into taxation when directed towards the general fund, since it comes from a few and goes towards the many. This he deemed a constitutional violation at both the federal and state levels.

Where to begin with such drivel? Foremost, it completely rewrites Louisiana government’s power of the purse. Heretofore, the Legislature has had complete discretion in this regard, subject to expressly written directives in the Constitution. Now, Johnson suddenly has determined the Constitution, with none of this written in it, gives different funding mechanisms and destinations their own definitions that the Legislature must follow.

Further, he privileges certain legislative acts over others. An act creates a fee or tax and as part of that designates where it does and what purpose, if any, it may have. An act also appropriates from funds to spending purposes. (Both of these, of course, must comport to parameters set in the Constitution.) Yet, according to Johnson, a non-appropriation act takes precedence over one that appropriates, even though they rely upon the same kind of legislative instrument, because the appropriation must adhere to the intent of the act (in this case, a fee paid by a few to pay for regulation of their activities). Again, this is entirely invented.

Moreover, in a practical sense the ruling’s logic, such as it is, creates utter chaos. Transfers of funds happen all the time within and between agencies for a variety of reasons. What if, for example, a particular agency activity has designated fee funding that overflows, while it needs money elsewhere for general activities for which it receives general fund dollars? Are these transfers now unconstitutional? Or those that the Joint Legislative Committee of the Budget makes between agencies, if funds involved came from fee collection and go to an expense covered by the general fund?

It even can render unconstitutional existing laws. For example, R.S. 46:2626 imposes a fee basically on ambulances. Under some conditions, money from that can eventually end up in the general fund, which apparently this ruling now invalidates.

The Legislature needs to do the polity a favor and appeal this mess. Surely a higher court will seek to follow the Constitution in dealing with this matter, not to rewrite it.

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Jeffrey Sadow

Jeffrey Sadow is an associate professor of political science at Louisiana State University in Shreveport.   He writes a daily conservative blog called Between The Lines

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