Like Sands Through the Hourglass…..The Saga of the Mississippi Legislature & Initiative 42…Part II
-A (lengthy) narrative on what you might have missed in regards to Initiative 42.-
…continued from Initiative 42 – Up Until This Point – Part I: A New Hope
Now you might be thinking, okay so people would now be able to debate this proposed Initiative 42 and decide on Election Day whether to pass it or not, just like we did leading up to the marriage amendment, the personhood amendment, and all of the other amendment proposals ever placed on the ballot. But, this is where things started taking a really odd turn. You see there was a little part of the law allowing these initiatives to be put on the ballot which allows the legislature to put an “alternative” on the ballot beside the other measure. Now, in all the years and all the many initiatives we have had on the ballot, this option had never been done by the legislature. It had never been done for any initiative made by the people. To say having two “competing” measures of any sort being on the same ballot in Mississippi is rare would be a bit of an understatement. According to Secretary of State Delbert Hoseman, “This is the first time since 1817, and we became a state 200 years ago, that we have competing legislative amendments” (http://ballotpedia.org/Mississippi_Public_School_Support_Amendments,_Initiative_42_and_Alternative_42_(2015)). Yes, the legislature moved in a manner which it had never done before and nothing even remotely similar had occurred since 1817 when Mississippi was in the process of being admitted to the United States. However, many in the legislative leadership, while supporting state funding for so-called charter schools (http://www.jacksonfreepress.com/news/2013/apr/03/mississippi-house-passes-charter-schools-bill/), did not like this language forcing the state to provide for an adequate education in our public school districts. One of the key things in Initiative 42 which they did not like was the provision allowing our elected Chancery Court judges to provide injunctive relief should the legislature (even with the new amendment) still choose not to adequately fund our schools. Injunctive relief is the process by which the court, in the case of an injustice, requires someone to either do or not do a particular thing (https://www.law.cornell.edu/wex/injunction). Many of us are familiar with injunctive relief, it is what you see on courtroom dramas when the judge might state, “I am granting an injunction against the defendant that his bank cannot foreclose on the plaintiff’s house.” Injunctive relief is by definition requiring someone to do or not do something and this would be the “teeth” of the law giving the judicial branch the means to check whether the legislative branch was following the law.
In January of 2015, the leadership in the legislature decided to introduce THEIR “alternative” (http://www.sunherald.com/2015/01/13/6015467_mississippi-house-passes-alternative.html?rh=1). This “alternative” to be listed by the very similarly titled “42A” would not mention the word “adequate” (remember adequate levels of funding had already been defined by the MAEP formula) and would certainly not have any mention of the courts being able to enforce anything about funding. So the leadership placed this very similar sounding, yet very different measure to be put on the ballot (one law with the ability to be enforced and another without the ability to be enforced). The “alternative” 42A does nothing more than leave things 100% as they currently are. It is meaningless as far as its effect and repeats existing law. Thus, it’s effect would be the exact same legally and in relation to education funding as a vote of “NO” on the original initiative. Why go through all the trouble of this unprecedented move to put this “alternative” on the ballot at all? Well, unfortunately this will all become crystal clear toward the end of this document.
At this time, some saw this as simply a way to confuse voters with two amendments which seemed so similar listed side by side on the same ballot which seemed entirely likely to result in many people meaning to vote for one and mistakenly voting for the other which has ALMOST the same name and very similar language. Some of these same people thought that this seemed like an effort to just make sure Initiative 42 had a roadblock in its path to getting the required majority needed for passage.
In March of 2015, all of the leadership of the legislature and the governor began to seemingly see who could top the other in regards to the biggest tax cut proposal for 2016 (http://taxfoundation.org/blog/competing-tax-plans-advance-mississippi). Yes, things were looking so good for the state financially that the state could easily afford to cut taxes. The only real question of any of these leaders was how big the cut should be. Gov. Bryant introduced a plan for 2016 to cut taxes by more than $78.7 million. Lt. Gov. Reeves, not to be outdone, went ahead and spelled out a plan to phase in cuts for the next five to ten years. When fully implemented, Lt. Gov. Reeves boasted that it would result in $382 million in tax reduction (and naturally revenue to the state) per year! But, it would be Speaker of the House Gunn who would blow them all out of the water with their “meager” in comparison tax cuts. Speaker Gunn proposed that we could get rid of our state income tax entirely for a grand total of more than $1.81 BILLION per year, once fully phased in! Speaker Gunn used projections saying that revenue was projected to do nothing, but grow for the next fourteen years so his massive cuts to be implemented each and every year before the final amount of 1.81 BILLION by 2030 would not have much effect at all. There would be no mention of any budget cuts to the various state departments which do so much good and certainly no mention of any need for job eliminations to the hard working state employees in our institutions of higher learning, highway patrol, prisons, roads, etc. (You will see shortly why this lack of any cuts to achieve these large tax and revenue reductions is quite important).
Yes, many in the legislative leadership had already howled at the lack of money they said would be needed should Initiative 42 be passed, implying cuts or tax increases would be needed. This was part of the “need” to introduce the “alternative” 42A to counteract this strain on the budget.. But, lo and behold, the same leadership were now a couple of months later saying things were great and much more massive dollar amounts could easily come out of the state budget for tax cuts! Pardon my example, but this sort of puts me in the mind of a father who tells the children that he can’t afford to buy them shoes for school or to give offering on Sunday, but then Monday morning is trying to get all of his friends to load up with him and go to the casino this coming weekend. The “good” father tells them that he has a pocket full of money and it’s time to enjoy some grand times! What type names would you have for such a “good” father? Soon, we would see this double-talk taken to even further heights.
Thus in April, a parent in north Mississippi ended up carrying the new “alternative” measure to court saying that it at least needed to have a clear title which pointed out the key difference in that there was no way to enforce this “alternative” 42A since it had removed the ability to bring it before a judge should the legislature continue to ignore the law. The idea was that without a title description pointing out this difference, people would likely not notice because the two proposals would look almost identical yet have very different effects. At first a judge agreed and said the title should reflect this lack on an enforcement mechanism in 42A (http://www.jacksonfreepress.com/news/2015/apr/02/how-one-mom-beat-legislature-schools-funding/). But, the legislature using the services of at least one attorney charging over $60,000 (http://www.sunherald.com/2015/09/08/6404195_state-hired-attorney-to-battle.html?rh=1) appealed that ruling to the Mississippi Supreme Court, because they felt it was very important for the title to not mention the lack of an enforcement mechanism. The Mississippi Supreme Court ruled in favor of the legislature and the title language mentioning the lack of an enforcement mechanism could be removed. What reasoning did the court give for overturning the lower judge’s ruling to change the title? The court said that it had never been given authority in state law or the state constitution to exercise any jurisdiction over that process (https://courts.ms.gov/Images/Opinions/CO105465.pdf). Sound familiar? Why did the legislature not want the ballot to inform the voters that no one at all could review or enforce the legislatures funding or lack thereof in reference to “alternative” 42A? Everyone universally agreed 42A lacked any way to legally enforce its call for an “effective” education system, so why not come out and say that in the title? We will have to use whatever combination of common sense and imagination to reason that out.
Just in case you thought my earlier analogy of the father talking out of both sides of his mouth was not entirely applicable, let us fast forward a mere four months from the massive tax cut proposals of the governor, lieutenant governor, and the speaker of the house in March to July of 2015. That would be when leadership in the house suddenly demanded, “state agency leaders to draft plans for major cuts to their budgets, in the event a ballot initiative to force full funding of the state’s education formula passes in November” (http://www.clarionledger.com/story/news/politics/2015/07/07/agency-cuts-education/29814897/). Yes, you read that correctly. The same leaders who told us a few months earlier that the state of Mississippi was “walking in high cotton” and needed to reap the fruits of the harvest via tax cuts on such a massive percentage scale they would almost be unheard of in any state of the union suddenly decided times were hard and we were in the poor house to fund education. The Department of Public Safety (including the Highway Patrol), the Department of Corrections, and all departments were instructed to write out detailed plans by the end of the month. According to the article, “A memo sent to all agencies — except the Department of Education and Medicaid — told them to identify the number of employees that would have to be “terminated, laid-off or furloughed” to make the cuts, the need to increase fees or charges for services and by how much and any projected “reduction in services” (fewer vaccinations, fewer patrolmen on the road, etc.) Strangely, in March no such discussions, plans, or memos were needed when tax cuts taking BILLIONS away from revenue were thrown around like it was Christmas. But, it no doubt made good reading in the next day’s paper for all the employees and their families of those various state agencies who now had a pain in the pit of their stomach as they thought about how they would pay their bills or their mortgage, if they lost their jobs. No doubt as those department heads had to send down to their individual county divisions asking for listings of jobs that could be eliminated, there was one topic and one topic only discussed at lunch time. But, I guess it is just different depending on whether the money is being spent for public schools or being boasted about in tax cuts, although I must have missed that day in math class.
So in the meantime, there is a part of state government called the Legislative Budget Office which is to issue a fiscal analysis of proposed initiatives which will appear on the ballot. The fiscal analysis would give a summary of how much the proposal would cost and other financial details. Of course, being that it was the “Legislative” Budget Office many expected that such a summary would not be very favorable in its wording and perhaps reflecting the negative view of Initiative 42 by some in the legislature. When the initial version of this was released in March, it might have seemed by some to be a little slanted, but most agreed it was factual (http://www.msparentscampaign.org/component/content/article?id=1314). This analysis read as follows:
“The cost to fully fund the Mississippi Adequate Education Program (MAEP) statutory formula portion of the Fiscal Year 2016 budget request as submitted by the Department of Education totals $271,136,036 above the Fiscal Year 2015 funding level. Initiative 42 amends Section 201 of the Mississippi Constitution to require that the legislature must fund an adequate and efficient system of free public schools and also authorizes the chancery courts to enforce this section with appropriate injunctive relief. The Legislature would need to appropriate an additional $271,136,036 above the Fiscal Year 2015 level for the support of the Mississippi Adequate Education Program to meet the statutory formula for Fiscal Year 2016. Budget projections for the Mississippi Adequate Education Program for the Fiscal Years 2017 through 2020 reflect average additional formula increases of approximately $33 million annually.”
Now fast-forward to August when the actual wording of the fiscal analysis as it would appear on the November election ballot was being finalized. The legislative leadership including chief Initiative 42 opponents Lt. Gov. Reeves & Speaker Gunn, by accounts for the first time, decided to become directly involved in the Legislative Budget Office’s wording for their analysis (http://djournal.com/news/initiative-fiscal-analysis-changed-after-legislative-input/). Members who helped write the new version openly admitted this involvement in the revision. Thus, they, you might say, “tweeked,” it just a wee little bit and it now reads:
“Because this proposed amendment shifts funding decisions from the Legislature to the court system, it is impossible to provide a specific fiscal impact of Initiative 42. If the court system, acting under the new authority granted by Initiative 42, required K-12 Public Education to be funded at the amount called for by the statutory Mississippi Adequate Education Program, the Legislature would need to appropriate an additional $201,031,129 above the Fiscal Year 2016 budgeted amount. Fiscal Year 2016 revenues are not adequate to support this funding increase without the Legislature having to cut agency budgets or identify new sources of revenue (such as fees or tax increase) to comply with the court’s dictate.”
Now remember this is supposedly a purely factual, fiscal (financial) analysis and not an opinion, description, or editorial on the initiative. The new and vastly altered language seemed to reflect talking points used in the previous few weeks by those opposed to the amendment and particularly those in the legislative leadership. By many, it seemed at this point that things were clearly being manipulated by those in the legislative leadership who not only wanted to make sure that they retained their ability to not fund schools at the adequate level and spend what money they did not use for the prescribed adequate education funding on things such as tax breaks to corporations or any other preferred project and/or tax cut they had rather direct it towards.
(continued in the next post: Initiative 42 – Up Until This Point – Part III: The Return of Adequate Funding? )