Some Arizona lawmakers say a court ruling that will limit adding policy provisions to budget bills could make for a very different session next year, and possibly a longer one.
“I think it will streamline the budget process, because if bills, be they failed or not even submitted, are no longer admissible to the budget, then that’s one very large area of negotiation that’s removed from the system,” said Rep. John Kavanagh, R-Fountain Hills, who is the vice chairman of the House Appropriations Committee.
Kavanagh says it’s up to his colleagues whether this means a shorter or longer session.
“If members just resign themselves to the fact that the bill they want can’t pass, then it’ll probably shorten the session,” Kavanagh said. “If members dig in and insist that their bill not be put in the budget but get passed on the board again, then it could drag the session on. It just depends on how people react to it.”
Sen. J.D. Mesnard, R-Chandler, said he expects to see more bills next year as a result of the court’s decision.
“It’ll probably introduce greater inefficiency in the process and slow things down,” he said.
This year’s budget-writing process dragged out as GOP leaders struggled to get a few holdouts on board with a large tax cut that Democrats unanimously opposed and as other Republicans demanded additions, including certain policy-related items, as the price of their aye votes. The final product, which passed along party lines, included numerous controversial policies in the budget reconciliation bills, including a ban on school mask requirements, limits on local governments’ and public universities’ ability to impose Covid mandates and banning “critical race theory” in public schools.
The Arizona School Boards Association and other education groups sued, arguing that adding policy items to budget bills violated the state Constitution’s title requirement or single subject rule.
A spokesman for Gov. Doug Ducey called Maricopa County Superior Court Judge Katherine Cooper a “rogue judge” when she agreed with the education groups in September. However, on November 2 the Arizona Supreme Court, which was appointed entirely by Republicans and a majority by Ducey, agreed with Cooper unanimously, an outcome House Minority Leader Reginald Bolding called “as strong a rebuke as we can imagine.”
“It was never appropriate for the Speaker and Senate President to load up the budget with unrelated and controversial policy items to mollify certain extreme members and avoid negotiating a bipartisan budget,” said Bolding, D-Laveen.
“Logrolling,” or adding policy items to budget bills, is nothing new, but some observers say this year saw more of it than usual. Rep. Charlene Fernandez, D-Yuma, said that in her seven years in the Legislature she had never seen a budget “so riddled with bills that failed or weren’t heard.” Fernandez said the court made the right call and hoped the ruling would change the budget process for the better.
“We aren’t in the Wild, Wild West. This is 2021,” Fernandez said. “For (Republicans) to think that they can throw these bills in there that people didn’t like – not even their own members – that is not the way things are done.”
Sen. Sean Bowie, D-Phoenix, said the ruling might result in a longer session next year, because Republicans will not be able to add policy to secure votes.
“Of course, it can always work with Democrats, and we’re always willing to do that,” Bowie said. “But often that seems like it’s always the last option instead of coming earlier in the process, which I would prefer to see.”
Senate President Karen Fann said she doesn’t expect the ruling to lead to more collaboration across the aisle. She called the decision a two-edged sword – budget reconciliation bills will no longer be “logrolled,” but now they also can’t be used to fix unintended consequences of other measures.
“All sorts of things pop up, and we’ve been able to say, ‘It’s OK. We’ll get it fixed. We’ll put it in a BRB in there, and so you guys will be taken care of,’” said Fann, R-Prescott. “Depending on how this ruling actually shakes out, it could be that we’re going to be prohibited from doing that. And so, we can’t make a fix quickly. We may have to wait an entire year to come back and fix a problem.”
Fann said longer bills will take much longer to read and process.
“I can tell you that it’s going to cost a lot more taxpayer dollars for sure,” she said.
Many Republicans are not happy with the ruling. Rep. Joseph Chaplik, R-Scottsdale, one of several House Republicans who said his support for the budget was contingent on banning school mask mandates, said he was “disgusted with today’s ruling that will further damage the children with mask mandates and Critical Race Theory.”
“Rather than bend to the will of radical left-wing interest groups, the court should have allowed the laws to remain in effect until that simple error could be corrected by the Legislature,” said Rep. Mark Finchem, R-Oro Valley.
Kavanagh said the court’s “technical reading of the Constitution” may have been right, but he thinks the judges should have “deferred to decades of practice” and perhaps issued a warning not to do the same thing in the future.
“A major problem I had with the ruling was, to be honest, they should have invalidated the entire bills, because we couldn’t have passed those bills without those items in it,” Kavanagh said. “So, what the court essentially did was, they passed a budget that never would have been passed by the Legislature, so it’s actually a judicial budget. And that strains at the balance of powers.”
A few Republicans have called for a special session to “fix last session’s budget that has just been gutted with the recent AZ Supreme Court ruling,” as Sen. Michelle Ugenti-Rita, R-Scottsdale, put it on Twitter.
“If they (Senate leadership) care about these issues, then they’ll get into a special session and fix it,” Ugenti-Rita said.
However, this would require either a two-thirds vote of the Legislature – an impossibility given the unanimous Democratic opposition to most of the policies that were just voided – or a call from Gov. Doug Ducey.
“I don’t think the governor would do that, and … I think it would be hard to get everybody together this time of year with the holidays,” Kavanagh said. “And I don’t know if anything was super-pressing, other than mask and vaccine mandates, which I would like to see a special session for.”
Ducey spokesman C.J. Karamargin was non-committal and he said there are unsettled legal issues that should be addressed first, and that there might not be sufficient Republican support to pass any legislation anyway.
Ugenti-Rita said the Supreme Court’s ruling was the result of “failed leadership” that was unable to work with its own caucus to advance proposals in a traditional manner.
“I think the budget was handled inappropriately,” Ugenti-Rita said. “Logrolling in an aggressive amount of policy because you can’t get these individual items out the traditional way leaves us vulnerable for things like we’re seeing right now.”
Democrats were predictably pleased with the rulings, which struck down a wide array of policies they strongly oppose.
“If policy issues can’t get passed in the Legislature solely on the merits of the individual policy, that’s where they should end. … These bills that were logrolled into the BRBs either didn’t pass out of the chambers, or there were never enough votes in support, so they never saw the light of day,” said Sen. Rebecca Rios, R-Phoenix. “I have never seen such liberties taken with cramming policies in a budget like I did this year.”
Rios said so many policies had to be added to the budget because they failed as standalone bills due to how narrow the Republicans’ majority is.
“Unfortunately, we’re going to be working with those same slim margins next year, which means there is going to be a lot of arm-twisting I would assume,” Rios said.
At least one Republican thinks the judges made the right call. Sen. Paul Boyer, R-Glendale, said the ruling is good for the institution, and that his fellow Republicans might come to appreciate it more if Democrats win the majority in the future.
“Our colleagues across the aisle won’t be able to jam stuff through like we’ve been doing,” he said.
Arizona Capitol Times reporter Nick Phillips contributed.