The Political Notebook 9.30.22
Referendum failure dramatically changes the politics of universal private school vouchers. The AG should have a nondiscretionary duty to defend duly enacted state laws.
The failure of opponents of private school vouchers to refer, and thus prevent going into effect, a bill making them universally available dramatically changes the politics of the issue.
Opponents could still mount an initiative drive to repeal the measure. Or do it legislatively, in the unlikely event Katie Hobbs wins the governorship and Democrats take over both chambers of the legislature.
In either case, it is much easier politically to prevent a benefit from being granted than to take one away after it has been granted.
By the time the next legislature convenes, there will be thousands of students granted vouchers under the bill’s eligibility expansion. By the time an initiative made it to the 2024 ballot, there may be tens of thousands.
This provides a more entrenched and committed body of supporters. And it makes the repeal argument a more uncomfortable sell for swing voters. Instead of not granting a benefit to unknown recipients, repeal would strike a blow and impose a financial penalty on a known set of families, who won’t be exclusively mansion dwellers, as anti-voucher rhetoric has it.
The repeal could be prospective, grandfathering in those already receiving the vouchers at the time of repeal. But that raises equity and fairness issues. Denying families a government benefit based upon when their children were born will also be tough sell to swing voters.
That’s not to say that the voucher bill will help Republicans and hurt Hobbs’ prospects this election cycle, as the Wall Street Journal would have it. Arizona voters overwhelmingly rejected a voucher expansion in 2018. If the referendum drive had been successful, voucher proponents would have had an uphill battle keeping universal eligibility in 2024.
I support universal eligibility. But the argument that tax dollars shouldn’t go to support private school attendance, particularly since most of it is provided by religious institutions, resonates widely.
However, the failure of the referendum drive, which means universal eligibility will go into effect, makes it much more likely that the reform will stick and become a permanent part of the K-12 education system in Arizona.
Not only will the argument change from stopping a new benefit from going into effect to taking away one already in place and benefiting thousands of families. There will also be actual experience, rather than speculation, about the effects of universal eligibility for private school vouchers.
My guess is that political support for universal private school voucher eligibility will increase with experience.
The bill by state Rep. John Kavanagh to forbid videotaping within 8 feet of a cop engaged in an enforcement action, duly passed by the legislature and signed into law by the governor, died in court.
That was because no one would defend it. Attorney General Mark Brnovich refused to do so. Legislative leaders declined to mount the defense in his stead.
While I’m no fan of the bill, this isn’t right. A court may indeed have ultimately found that the legislation violated the First Amendment. But there were legal arguments that could have been mounted in its defense. Any duly passed law deserves its day in court.
The legislature needs to revisit the powers and duties of the attorney general. In my view, there should be a nondiscretionary duty for the AG to defend the legality of any duly enacted law. The AG is a lawyer advocate, not a judge. And he shouldn’t be his own client.
In that regard, current statutes give the AG unilateral and unchecked authority to take whatever position he wants in any case in federal court. That includes the power to initiate litigation, not just defend the state or its officers when they are sued. So, with respect to federal litigation, the AG is his own client.
That’s also not right. With respect to federal litigation, the client should be the governor or some combination of the governor and the legislature.
The state constitution gives the AG no direct or independent authority. Instead, it says that the powers and duties of the AG “shall be as prescribed by law.” In other words, by the legislature.
Ideally, AG reform to restrict inappropriate policymaking, as opposed to providing legal advice and advocacy, would be a bipartisan endeavor. At root, it’s a matter of good governance independent of which party holds what offices.
That, however, is probably a forlorn hope. If restrictions are enacted, it will probably be to constrain an AG of the other party. That would regretfully taint a good governance reform with partisanship.
Reach Robb at email@example.com.