Supreme Court to lawmakers: Non-budget laws can’t be in the budget

As lawmakers and Gov. Doug Ducey prepare for the start of the 2022 legislative session, the Arizona Supreme Court provided a simple blueprint for how not to craft their budgets.

The lesson is simple: Don’t include laws in the state budget that don’t actually have anything to do with the funding in the state budget.

On Thursday, the court issued its full opinion on its unanimous ruling from November that struck down substantial portions of last year’s state budget on the grounds that the bills violated a provision of the Arizona Constitution known as the single-subject rule. That provision requires the bills that the legislature passes to encompass a single subject, and for the bill’s title to provide adequate notice about what subjects it pertains to. The provision is intended to prevent a practice known as “logrolling,” in which lawmakers are forced to vote for something they oppose in order to pass another law they support.

Four budget bills were struck down in whole or in part, which scrapped dozens of new laws covering a wide variety of disparate subjects, including banning public schools from requiring face masks or vaccinations to combat COVID-19, prohibiting the teaching of “critical race theory” in K-12 schools, imposing new requirements for security measures in ballots, changing to dog racing and harness racing permitting requirements, stripping the secretary of state of authority over the state Capitol museum and of her ability to defend the state election laws in court, and changing the state’s definition of what constitutes a newspaper so more publications can publish public notices. 

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Three of the budget bills that the Arizona School Boards Association challenged will stand, sans the provisions that failed to comply with the title requirement in the single-subject rule. One of the bills, described only as a budget reconciliation bill for “budget procedures,” was struck down in its entirety.

Justice John Lopez noted in the court’s opinion that the bill, Senate Bill 1819, contains 52 sections that cover 30 distinct subjects. Despite the state’s claim that “budget procedures” is a broad concept that covers a wide variety of topics, Lopez wrote that the challenged laws have no relation to the state budget and that they’re “devoid of any reference or significant to budget procedure.”

“Our conclusion is inescapable: SB 1819 contains an array of discordant subjects that are not reasonably connected to one general idea, and certainly not to budget procedures,” Lopez wrote. 

The ruling will force lawmakers and governors to dramatically change the way they craft state budgets. For nearly 20 years, budgets have consisted of a primary funding bill, known as a feed bill, and 10-12 budget reconciliation bills. The intent of those bills, known by the acronym BRBs, is to create laws needed to implement the funding that’s included in the feed bill.

But the provisions that the court struck down have absolutely no relation to any of the funding from the 2021 feed bill, wrote Lopez, who noted that none of the funding from that bill is affected by the laws the justices rejected. 

The disputed laws don’t involve the setting aside of public monies or establish how state funding will be used, Lopez wrote. In fact, he said, the bills “have no expression of fiscal significance and fail to even identify a funding source.”

“Instead, the challenged sections are more aptly described as various substantive legislative enactments concerning COVID-19-related directives; an expansion of Attorney General authority; election-related requirements; and the formation of a Senate election committee,” Lopez said. 

The ruling is likely to create new challenges in crafting and passing the state’s budget. 

Since the inception of BRBs following a 2003 Supreme Court opinion that questioned the use of broader “omnibus reconciliation” budget bills,  legislative leadership and governors have relied increasingly on the reconciliation bills to garner support for the budget by including new laws sought by the legislators whose votes they need. Those laws sometimes include provisions that failed to pass earlier in the session or that might not have enough votes to pass if they were introduced.

The Republican majorities in both legislative chambers are as slim as possible, with the GOP holding a 31-29 advantage in the House of Representatives and a 16-14 edge in the Senate. That means House Speaker Rusty Bowers, Senate President Karen Fann and Gov. Doug Ducey can’t afford to lose a single Republican vote on any piece of legislation that doesn’t have any support from the Democrats, which their budgets rarely do. 

Spokespeople for Bowers, Fann and Ducey did not immediately respond to a request for comment on the court’s opinion. The 2022 legislative session will begin on Jan. 10.