Education cuts draw questions of legality

JEFFERSON CITY, Mo. -- With the governor threatening to cut $259 million in state aid to local school districts if other budget-balancing efforts aren't approved, some Republican lawmakers are questioning his constitutional power to do so.

Gov. Bob Holden, a Democrat, wants the General Assembly to approve legislation that would allow money borrowed against future payments from a financial settlement with the tobacco industry to be used to cover a shortfall in the current state budget. Without that legislative action, Holden told a group of public school officials that his only option would be to withhold money earmarked for education.

Although Holden has set a Feb. 15 deadline for action, many lawmakers are being cautious about the tobacco plan, under which bonds would be sold that would be repaid with future settlement proceeds. The Legislature last year authorized the bond sale, but circumstances have changed.

House Speaker Catherine Hanaway, R-Warson Woods, initially raised the constitutional issue about education cuts shortly after Holden made his announcement. During discussion on the Senate floor on Wednesday, state Sen. Matt Bartle, R-Lee's Summit, expressed similar concerns.

"I have serious doubts in my mind about whether it would be constitutional for the governor to withhold money from free public schools," Bartle said.

Historical precedent

Jim Morris, a spokesman for the Department of Elementary and Secondary Education, said the issue has come up over the years, but that there is historical precedent for such cuts.

"It has happened in the past, and no one has been able to prove the governor can't do it," Morris said.

The provision of the Missouri Constitution related to the governor's line-item veto power on budget bills says such vetoes "shall not reduce any appropriation for free public schools ... ."

However, the following section says the governor has the authority to reduce actual spending when the state lacks the revenue to cover appropriations. Unlike the restriction on line-item vetoes, there is no specific mention that certain spending items are off limits from withholdings.

Holden also announced $91 million possible in withholdings to public colleges. The governor's power to reduce higher education spending is not questioned.

Although a 1970 opinion from then-Attorney General John Danforth says the governor may reduce elementary and secondary education in times of a budget shortfall, the Missouri Supreme Court has never definitively addressed the issue.

The closest the court got was in a 1992 case led by the Sikeston School District. Several other Southeast Missouri school systems -- Doniphan, Dexter, Caruthersville, Scott County Central and Richland -- also participated in that case.

The districts challenged two rounds of education withholdings made by then-Gov. John Ashcroft. The districts claimed the two constitutional provisions read together limited the governor's authority.

Cole County Circuit Court Judge Byron Kinder said the first round of withholdings fell under the governor's constitutional power to balance the budget. However, he said the second round, which was made in response to a federal judge's order that Missouri increase its desegregation lawsuit payments to the Kansas City and St. Louis school districts, were outside of Ashcroft's authority.

Defining boundaries

Both the districts and Ashcroft asked the Supreme Court to define the limits of the governor's power. The court, however, dodged the issue.

Although lawmakers never appropriated money for the desegregation payments, the federal judge forced the state to pay up anyway by invoking the supremacy clause of the U.S. Constitution.

Because of that situation, the Missouri high court ruled Ashcroft never really exercised his power to reduce expenditures below appropriations. The court said the unappropriated desegregation payments counted as education spending and more than made up for the withholdings, although other school districts suffered for the benefit of the urban systems.

As a result the court avoided addressing the governor's withholding power, though it did say the constitution gives him much leeway to balance the budget.

The court built on the precedent of deferring to the governor on such matters in case it decided last month. That case didn't involve education spending.

However, the court said "the constitution broadly empowers the governor to determine how the pain of revenue shortfalls is to be distributed."

mpowers@semissourian.com

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