Discover more from The Alaska Memo by Matt Buxton
Dunleavy has painted himself into a corner and is trying to sue his way out
There's paint everywhere. It's just a complete mess.
Good morning, Alaska! I hope you had an excellent solstice weekend, enjoyed the sunshine and didn’t spend too much time worrying about the deep and complete failing of Alaska’s political system.
In this edition: Catching up, breaking down and discussing the current situation with the budget, the looming shutdown and the legal gymnastics of painting yourself into a corner. We’ll get back to normal reading list and everything else tomorrow, probably.
Y’all, things are bad
It’s been a minute since the last newsletter, so let’s do a quick check-in on where we’re at with the budget: The Legislature narrowly passed a “turducken” budget that pulls together just about every spending measure into a single, complicated package; Thanks to the opposition of the House Republican minority, the budget passed without several key votes that were once procedural and non-controversial; Gov. Mike Dunleavy deems the budget “defective” because of the House Republican minority’s refusal to support the effective date on the bill (though he claims ignorance as to why the minority voted against it, instead blaming the leadership that passed the budget and voted for the effective dates) and says he’ll refuse to sign the bill, calling the Legislature back into a special session set to start on Wednesday; Legislative leadership argues that the budget is, in fact, fine because a retroactivity clause will cover the gap between now and whenever the budget goes into effect, basing their opinion on legal precedent; Dunleavy then writes an incredibly improper letter to the Alaska Supreme Court asking that it settles the issue ahead of time, Chief Justice Joel Bolger reminds him that ex parte communication is, in fact, incredibly improper; Then the Dunleavy administration files a lawsuit against the Legislature (which is, on its face, unconstitutional) seeking to settle the issue; Legislators are currently en route to Juneau.
When the Legislature convenes on Wednesday, they will have one week to avoid a government shutdown by either taking a new vote on the effective date or, somehow, passing an entirely new budget by then. It doesn’t look good.
I’m told the Legislature could settle the issue in as little as an hour if four Republicans have a change of heart and join the 23 legislators who’ve already approved the effective date—the entire 21-member majority coalition and two minority Republicans who knew better than to play chicken with the budget. But I’m also told that if the governor truly intends to restart the budget negotiations—a seeming likelihood given this tweet saying he’ll be introducing a budget bill that has a “constitutional effective date and transparent funding sources” (i.e., significant changes)—then it’s going to be an incredibly difficult lift that will make a shutdown all but guaranteed.
On the ground level: There’s a significant amount of uncertainty and little plan as legislators return to Juneau, which is never a good sign for a quick resolution to the problem. If the governor does, in fact, introduce a new budget that would likely include a larger dividend (something that couldn’t get the support of a majority of legislators) while also salvaging several Mat-Su area projects that were tied to those failed procedural votes (that they voted against), then all bets are off. A new budget at this point would also mean an entirely new budget process where we would see several opportunities for lengthy amendment fights in committee and on the floors (remember, it took the House a solid two days of floor time spread out over more than a week to get it through there) and not to mention a new conference committee process. It’d take an incredible amount of self-control from everyone involved to stick the landing in a week, and legislators have not really been known for their self-control.
Instead, there’s going to be a lot of focus on trying to salvage the operating budget that’s already passed (and, again, most legislators believe it’s acceptable). Even if the budget bill isn’t on the governor’s special session call, legislators can waive the rules and bring it up with a two-thirds vote (the same needed for the effective date) and pass it that way. The big issue, of course, is just what is needed to appease those four votes. So far, the House Republican minority and Dunleavy have been incredibly vague about what exactly they want out of the restarted budget fight. They’ve been hesitant to say it’s all about extracting the votes needed to pay for a larger dividend, instead focusing on some vague nonsense about a path forward on the state’s fiscal plan. It’s about starting a conversation, they claim for the umpteenth time as the cliff comes into view.
I don’t know how you, with an effective date vote, lock the Legislature into doing anything in the future. Short of a continuing resolution sort of approach—a D.C.-style move where legislators admit that things are so deeply broken that we can only fund budget for a handful of months—then I’m not sure how we force anything, let alone the shape of things to come.
It’s this lack of foresight, lack of goals and lack of leadership that ought to make us all very, very concerned this blind brinksmanship will drive us over the cliff.
In the big picture: Gov. Mike Dunleavy has not just painted himself into a corner. He’s splashed gallons of paint around the room, getting it on the walls, ceiling and himself. Dunleavy and his team have made a remarkable mess of the budget with the decision to break from precedent on the budget’s effective date and roll out the “unconstitutional” label with seemingly little thought about what that means for the path forward. And not to mention that they sprung this issue on the Legislature well after the votes had been taken and legislators had departed from Juneau. Though Dunleavy and his legislative allies claim that it wasn’t the plan, it’s hard to overlook the governor’s own campaigning for legislators to do precisely this. And though the administration claims that was all an accident that the message went out, things like that don’t get drafted in a vacuum.
By going so far as to label the budget as “unconstitutional”—a label that no one but the courts gets to truly decide—the governor has put himself in a position where doing the reasonable-ish thing of signing the budget despite his newfound qualms and trying to make it work would be admitting defeat.
The laughably incompetent attempt to have the courts sort this out with the governor’s administration bringing a lawsuit against the Legislature reads to me like a long-shot attempt at trying to get out of the mess they’ve caused… or at least smear some paint on the courts while they’re at it. Given the whole Alaska Constitution’s “the governor cannot sue the Legislature” clause (Article III, Sec. 16), I would not be surprised if the lawsuit is simply rejected for lack of grounds, not to mention that the bill has yet to be signed. And even then, there’s some heavy “this is a political decision” vibes going on here.
In the bigger, ground level picture: The governor seems to be operating in a void. Whenever the defense of your action takes five or six paragraphs to explain—well they failed the effective date, which says when a bill goes into effect, and even though the Legislature believes it’ll be OK because of a retroactivity clause, I have my own reading of the law and because of that reading, we’ll need to shut down the government unless everyone appeases a group that seems unable or unwilling to say what they want—then you’re in trouble. This is not a particularly good hand that the governor is trying to play here and is, instead, the worst of the inside baseball that has come to define everything about the Alaska Legislature. I would wonder how everyone—specifically the four votes needed to reach the effective date on the current bill—are feeling after a weekend away from the mess. Well all get too deep and too insular with Alaska politics, forgetting that the gamesmanship reaches well beyond the halls of the capitol building.
Personally, I spent a long weekend in Fairbanks, spending time with family and friends. We went out to busy bars, walked through serene birch forests and wolfed down some really good tacos (seriously, Fire is pretty dang good) all while the political ups and downs felt like a distant, bad memory.
As one friend in the building wisely reminded me when I was whining about the never-ending dysfunction and drama of session: “World’s bigger than this building.”