EDITORIAL: Alaska Legislature must fix its unconstitutional action

Alaska legislators have a mess to clean up.

In the waning hours of this year’s legislative session, the state House of Representatives blew past the 121-day limit mandated by the Alaska Constitution. The disorganization that erupted at various points in the session due to the House majority’s inability to form a binding caucus re-emerged at the worst possible time, with the state budget hanging in the balance. And although the House succeeded in moving the budget on time — barely, only an hour before the legal end of session — the chaos of the session’s end had wasted too much time, and the House didn’t manage to pass its final four bills until after midnight, on May 16. Since then, lawmakers and interested members of the public have waited to see what Gov. Mike Dunleavy’s response will be — whether he will sign the potentially unconstitutional bills into law, let them pass into law without his signature, or veto them because they passed too late to be legal.

If the bills pass into law, whether signed by the governor or unsigned, they would be ripe for a legal challenge, and recent history has shown that there are Alaskans willing to challenge actions by the Legislature or governor that are of dubious legality, often less because the appellants disagree with those actions themselves than because they wish to stand up against a legal precedent that could be abused in the future. The more power that is granted to lawmakers by inaction, the more power they will have when a bad actor tries to exploit it. And such a lawsuit could easily run up hundreds of thousands of dollars in costs for the state, burning through public money that is already too scarce. The likely outcome of the lawsuit, too, would be the invalidation of the improperly passed bills. That would leave legislators the choice of convening a special session (with all its own costs) to re-pass the laws, or giving up on that handful of bills — which, because of the content of the bills, would have serious negative impacts on Alaska’s economy. That latter option should be unacceptable to legislators, and to their constituents as well.

So how do we fix this legal conundrum? The answer is unorthodox but relatively simple.

First, Gov. Dunleavy should veto the bills passed after midnight on May 16 — House Bill 29, House Bill 189, House Bill 122, House Bill 203 and House Bill 19. Although the bills are worthwhile and should be enacted, it’s not worth the near-certain expensive lawsuit that would ensue if the governor and legislators pretend the hanky-panky surrounding their passage didn’t violate the Alaska Constitution’s explicit limit on the duration of the legislative session.

Second, after vetoing the bills, Gov. Dunleavy should immediately call the Legislature back into a special session, to be held as soon as possible and for as short a duration as possible. For expediency’s sake, this session could be held in Anchorage for just a few days. The governor can focus the session by only including replacements for the vetoed bills on the special session call; given the makeup of the Legislature and the pressures of an election year, legislators would be unlikely (and unwise) to engage in shenanigans such as changing the subject matter of the bills or playing procedural games as a hostage-taking exercise. Despite the disorganization of the House that led to the deadline violation in the first place, legislators would see that the best, most expedient course of action would be swift passage of the bills they already passed once.

And finally, after the Legislature re-passed the bills, Gov. Dunleavy could sign them into law with all haste, showing Alaskans that their government can in fact work expeditiously when the situation requires it.

Will all of that come to pass? It’s hard to say. But that’s the best outcome for Alaska, and it’s the one lawmakers should pursue. The House majority caucus shot itself in the foot through its disorganization and poor time management as the clock wound down in Juneau. Its members should be keen for the chance to rectify their error.