Slush fund bails out lawmakers for breaking the Constitution. Here’s how to fix it | Opinion
The Idaho Legislature will soon get a pair of long-overdue bills.
As James Dawson of Boise State Public Radio reported, the Board of Examiners recently voted to bill the Legislature for the state’s loss in a lawsuit brought by individuals who had been listed on Idaho’s sex offender registry for engaging in consensual sex that violated unconstitutional sodomy laws. This is the second time this year that the Board of Examiners, led by Gov. Brad Little, has taken such action.
The actions mean that lawmakers will have to come up with the money to cover these lawsuits themselves, rather than treating the Constitutional Defense Fund as their personal legal slush fund.
It’s is a welcome development. The Legislature had paid out over $3.2 million as of 2020 from the Constitutional Defense Fund to cover itself for losing lawsuits stemming from unconstitutional legislation, according to Betsy Russell of the Idaho Press.
The Constitutional Defense Fund was originally created to cover legitimate legal disputes with the federal government, such as the decision in the 1950s to unsafely dispose of nuclear waste in the desert north of Idaho Falls. But in recent decades, it has become something between a legal slush fund and a liability insurance policy for the Idaho Legislature.
The usual order of operations is as follows:
- The Legislature passes a law that violates Idaho citizens’ constitutional rights.
- The citizens whose rights the Legislature violated sue and win.
- The Legislature is ordered to pay those citizens’ legal bills.
- The Legislature sends the bill to the Constitutional Defense Fund, which is full of dollars it took from taxpayers — the same people whose rights the Legislature violated.
There are few clearer cases of this than House Bill 509. The Board of Examiners sent the Legislature the bill for that law in August, as Ruth Brown of Idaho Reports noted.
House Bill 509 was a 2020 law that barred transgender Idahoans from obtaining birth certificates and other identifying government documents that match their gender identity. It was particularly shocking for several reasons.
For one, it was absolutely clear to everyone with a functioning brain that it would be ruled to violate the U.S. Constitution. This was clear because the Idaho Department of Health and Welfare had instituted a substantively identical policy, and that policy was ruled by a federal court to be unconstitutional. It was also clear because the office of Idaho Attorney General Lawrence Wasden issued a legal opinion saying, essentially: This law is unconstitutional, and if you pass it, Idaho will lose a lawsuit and be on the hook for enormous legal fees.
But ahead of the 2020 elections, Republican lawmakers overwhelmingly passed it anyway.
This wasn’t a case of the tinfoil hat crowd pulling a few moderates over to their side. In the House, only Reps. Linda Hartgen and Doug Ricks broke with the Republican majority to oppose the bill. In the Senate, every Republican senator supported the bill, with the exception of Sen. Scott Grow, who was absent. Democrats unanimously opposed the bill.
Now lawmakers will have to go through the effort of appropriating funds to pay these bills, which should at least partially make them take responsibility for what they did. They can’t simply rely on the Constitutional Defense fund to bail them out, as they have in past years.
But of course, this change doesn’t fully resolve the most fundamental problem: Lawmakers will continue to charge the people whose rights they violated for the legal bills that the state incurred by violating them.
If lawmakers ever decide to get serious about accountability, here’s how they can do it: Write a law dictating that when a bill is found to be unconstitutional within one year of passage, the legal fees will be covered by the legislative salaries of the lawmakers who voted in favor of it it.
That would mean the people don’t have to pay for their mistakes.
And it would mean a system of real consequences for lawmakers who have sworn to “support the Constitution of the United States” and then broken their word.
This story was originally published December 23, 2022 at 4:00 AM.