Jacob Huebert Mar. 22, 2016, 8:54am


In his recent budget proposal, Gov. Bruce Rauner asked the Illinois General Assembly to pass the Unbalanced Budget Response Act, a bill that would temporarily allow the governor to reduce certain state spending and transfer certain state funds to balance the budget.

Perhaps some people are wary of this because they don’t like the idea of giving a governor more power. After all, the executive branch of government has already assumed a lot of power, especially at the federal level, where presidents and agencies under them have long used executive orders and regulations to effectively rewrite the law. Illinois agencies have been guilty of this, too. And of course it’s understandable that Illinoisans would be reluctant to put more trust in an office that has had past occupants who have committed felonies and gone to prison at an extraordinary rate.

But there’s no reason for anyone who cares about limited government to fear Rauner’s proposal. In fact, it might be the only way to ensure the state will respect the Illinois Constitution’s limit on its spending in the near future.

Rauner’s proposed Unbalanced Budget Response Act would temporarily authorize the governor to:

• Set aside money as “contingency funds” to make sure the state can pay for core services without having to borrow more.

• Reduce rates the state pays to service providers.

• Move unspent money out of certain special funds and into the state’s general-revenue fund.

• Change or delay payments under continuing appropriations.

The Illinois Constitution provides that the state’s “[a]ppropriations for a fiscal year shall not exceed funds estimated by the General Assembly to be available during that year.” In other words, in a given year, the state may not spend any more than it expects to take in.

Springfield politicians, however, have routinely ignored or evaded the state constitution’s balanced-budget requirement by using borrowed funds and dubious accounting, and the state hasn’t actually had a balanced budget since 2001. As a result, the state is on track to spend more than takes in – to have an unbalanced budget, only without an actual budget.

And for nearly a year, the state hasn’t had a budget at all. Last June, Rauner vetoed a budget because it was unbalanced and therefore unconstitutional. The General Assembly failed to override that veto, and since then it hasn’t passed new budgets for fiscal years 2016 and 2017, even though Democrats have veto-proof supermajorities in both houses, which should allow them to enact any budget they want.

But even without a budget, the state has kept on spending. Some of that spending has been the result of “continuing appropriations” in the law, which authorize certain spending (conveniently including payment of legislators’ salaries) to automatically occur each year. Some of the spending is the result of court orders requiring the state to spend money on certain things. And some of it has come from appropriations Rauner signed to allow spending in specific areas, such as education, to continue.

The act would leave certain funds untouched, including those devoted to schools, early childhood education, and debt service.

And the governor’s ability to reduce spending in other areas would not be unlimited: He could make changes only to the extent necessary to prevent the state from spending more than the constitution allows.

No one considers this bill ideal, including Rauner, because it’s not how spending is supposed to happen. The General Assembly is supposed to make appropriations as part of a balanced budget, and the governor is then supposed to sign the budget, veto it, or reduce its appropriations using his line-item veto power (subject to override by majority votes of the Illinois House and Senate). Then the comptroller is supposed to spend the money that’s been lawfully appropriated.

But that process has broken down.

Without a budget, Rauner’s proposal might be the only viable way to prevent unconstitutional spending.

Another option would be for taxpayers to file a lawsuit asking the courts to stop the state from spending any money beyond the constitutional limit, but that could be messy. Ordering the state to suddenly stop making all payments because it had reached its annual spending limit could be disruptive and lead to additional legal fights over whether certain spending should nonetheless continue. Also, courts might not want to get involved in the state’s budget battle despite their duty to enforce the constitution. And, in any event, court proceedings could take a long time – during which the state presumably would go right on spending.

Rauner’s bill provides a simpler, more practical alternative that would allow the governor to ensure that reductions are made rationally, not arbitrarily when spending exceeds a certain amount late in the year, so key services that people rely on will remain fully funded and continue uninterrupted.

Any concerns that the act would give the governor too much power are not warranted, for several reasons.

First, they are temporary: The governor would only have his new abilities through fiscal year 2017. There is no risk that they could be abused in some unforeseeable way under different conditions in the future.

Second, the act is unlike many of the executive orders and regulations that have increased executive-branch power because it would not increase the government’s power over private citizens in any way; on the contrary, it would help make sure that the state stays within its limits. The act is also unlike an executive order or regulation because it would have to be passed by the General Assembly – so, in applying it, the governor would be following the Legislature’s directions, not usurping its powers.

Finally, Illinois lawmakers could render the act moot at any time by simply passing a balanced budget as the constitution requires.

That’s what they should do. But if they lack the political courage to fulfill their constitutional responsibilities, then members of the General Assembly should at least give the governor the tools he needs to fulfill his own duty to uphold the state constitution.

Jacob Huebert is the senior attorney at Liberty Justice Center and author of Libertarianism Today. The Liberty Justice Center is the Illinois Policy Institute’s free-market public-interest litigation center.

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