In Idaho, elected officials are not permitted to use public tax dollars to campaign for office. Yet, this is precisely what they do when they pass laws they know are unconstitutional and are certain to be overturned by the courts. Unfortunately, it’s not a rare occurrence.
Just last week, a federal district judge in Boise ordered the State of Idaho to pay $250k in attorneys fees to the plaintiffs who prevailed in a lawsuit against the State challenging the constitutionality of Idaho’s so-called “ag-gag” law (making it criminal for anyone to secretly videotape agricultural operations, such as dairy or poultry farms, which have been shown to sometimes engage in unlawful and/or unethical practices). The court had ruled the bill unconstitutional last year, in part, on first amendment grounds.
The Republican-dominated Idaho legislature passed the bill with ease, despite warnings about its dubious constitutionality and the likelihood of costly litigation. And why wouldn’t they? After all, Idaho’s Big Ag wanted it, and if you’re a Republican in Idaho who doesn’t march in lock step with Big Ag, then you better start bracing for your next well-funded primary challenge. Moreover, it doesn’t cost them a thing. The money to cover the suit comes out of the State’s “Constitutional Defense Fund,” a special appropriated fund designed specifically to use taxpayer money to pay for mostly indefensible lawsuits. In fact, as Spokesman-Review reporter Betsy Russell reported last November, the Fund hasn’t been used to defend an actual winning case since 1996 – over two decades ago. http://www.spokesman.com/blogs/boise/2015/nov/16/idahos-constitutional-defense-fund-hasnt-paid-winning-case-1996/
Thus, if you’re an Idaho GOP legislator, passing unconstitutional laws is simply a “win-win-win” scenario. You “win” first by pleasing your deep pocketed donors and their powerful lobbyists who are advocating for the passage of these bills. You “win” a second time by being able to look your conservative constituents in the eyes and say, “hey, we tried.” And you win a third time by doing all this high-quality campaign work without having to raise or pay a cent. It’s 100% taxpayer funded. In the immortal words of John Blutarski from “Animal House, ” [g]rab a brew. ‘Don’t cost nothin’ . . .
Unfortunately, the ag-gag debacle is merely the latest in series of similarly disastrous legislation, showing no signs of letting up soon. In fact, the State is racking up further expense as we speak, having appealed the court’s decision in the “ag-gag” case. Then, last week, the Idaho Attorney General’s Office announced that it was considering filing suit to challenge President Obama’s recent directive concerning transgender students’ access to bathrooms in public schools. (Insert joke about throwing money down the toilet). And it doesn’t stop there.
Last year, the State was ordered to pay just over $400k in attorney’s fees and costs when the State’s ban on gay marriage was successfully challenged in court and deemed unconstitutional in the case of Latta v. Otter. That didn’t include another $225k+ for attorney fees and costs incurred on appeal. Toss in a other $500k in attorneys fees awarded in McCormack v. Herzog, a case that ultimately led to several of Idaho’s anti-abortion laws being overturned, and another $137k in Watters v. Otter, stemming from the “Occupy Boise” protests, and . . .
There were others, and there will be more. They will keep coming as long as Idaho’s GOP legislators are free to use taxpayer money to publicly campaign by passing bills that they, and everyone else, knows will be overturned — in some cases, because their own attorney has so advised them.
Until then, Idaho’s “Constitutional Defense Fund” should be renamed to reflect what it actually has become: the “Republican Legislative Re-election Fund.” I, for one, no longer wish to contribute to it.
Hello Tim,
Your article is right on target. For starters the fund should be renamed, but how & by whom? Check out my website, http://www.coachbonnie.net. This is just the kind of political nonsense that can be fixed with the proper legislative procedural coaching. You keep kicking tires and I will keep repairing flats. My best — Coach Bonnie
Thanks, Bonnie :). An interesting and, I imagine, challenging profession you’re engaged in. For what it’s worth, I wouldn’t object if we took the ENTIRE Constitutional Defense Fund and re-allocated it toward some meaningful legislative coaching. Thanks for reading, and indeed, keep repairing those flats! – T
April 4, 2016, U.S. Supreme Court in Evenwel v. Abbott, Governor of Texas decided: “As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible to vote. Nonvoters have an important stake in many policy debates and in receiving constituent services.” Do you think it would be the right time to begin civil litigation to force the ‘only represent one group’ legislators’ to start representing us all?
Good question… unfortunately, I don’t know the answer. I’d need to read the Abbott decision to better understand the context and rationale. Something tells me this would be a tough row to hoe, legally. I do like the thinking, though :).