More (but not really) on the Legislature's Pork
Monday, July 10, 2006 :::
The WaPo's Mike Shear and Rosalind Helderman take a look at pork in the newly-minted Virginia budget. But look is all they seem to do. When the story inevitably leads to whether these projects are allowed at all under the state constitution, this is all the analysis they can muster:
The Virginia Constitution bans state gifts to private groups or charities. But lawmakers have gotten around that for years by defining organizations as cultural or historical.
And with that, they move on.
Eat, shoot, leave.
Here is the relevant section of the Virginia constitution relating to earmarks:
Nor shall the General Assembly make any like appropriation to any charitable institution which is not owned or controlled by the Commonwealth; the General Assembly may, however, make appropriations to nonsectarian institutions for the reform of youthful criminals and may also authorize counties, cities, or towns to make such appropriations to any charitable institution or association.
Va. Constitution Va. Con. Art. 4 § 16 (1971)
Nothing in this section mentions an exemption for "cultural" or "historical" institutions.
Here is Dick Howard's commentary on the section:
As to the section's ban on appropriations to private charities, it is arguable that at least some appropriations would be in the public interest.
Private charitable organizations often perform functions that, were they not the subject of private initiative, would surely have to be performed by public bodies at public expense.
A reasonable argument could therefore be made that it is a legitimate use of state money to aid private groups which are in effect carrying out a program having a public purpose.
The commission on constitutional revision recognized the cogency of these arguments. In its view, however, the problem lay in fashioning a constitutional provision which would allow selective and limited appropriations in legitimate cases without opening the floodgates to demand by, and appropriations to, the vast number of private groups that would consider themselves equally entitled to share in the public largesse.
The commission, therefore, thought the prudent course was to leave the prohibition essentially as it was.
Again, no mention of theexemptionss Shear and Helderman reference in their piece.
So where does it come from, this mythical beast that allows legislators to ignore the rather clear language of the section and the framers' intent?
Mercifully, one professional journalist asked that same question some time ago. The NV Daily's Garren Shipley
looked into the matter at far greater depth than those who scribble for larger circulation newspapers, and he found a couple of possible answers as to why the legislature may believe it can earmark funds:
Courts in the commonwealth have apparently never taken up the matter directly, although they have bumped into it on occasion, according to McDonnell's office.
While the office declined to provide an official opinion -- constitutional officers from local and state government are among the few who can request such a ruling -- it did point to a 1984 opinion on whether a state-created corporation would fall under the section.
"This constitutional prohibition may be avoided if the organization to which the appropriation is made is not 'charitable' or, if charitable, is 'owned or controlled by the Commonwealth,'" wrote then-Attorney General Gerald Baliles.
This is a rather novel reading of the term "charitable." For instance, the IRS generally defines501(c)(3), tax-exempt organizations as:
charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and the prevention of cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erection or maintenance of public buildings, monuments, or works; lessening the burdens of government; lessening of neighborhood tensions; elimination of prejudice and discrimination; defense of human and civil rights secured by law; and combating community deterioration and juvenile delinquency.
This covers a large number of organizations, and it is arguable whether those receiving earmarks in the Virginia budget would necessarily qualify under the IRS definition. However, if a portion of their mission is educational, that may place them under this umbrella -- thus making them charities.
But Shipley found this topic has been addressed:
In the 1964 case City of Richmond v. United Givers Fund, the court took the word to mean, at least for purposes of taxation, "liberal, in benefactions to the poor; beneficent."
But the same court opinion also uses another definition.
"The same case defines the word somewhat more broadly as being limited to an institution which is 'organized and conducted to perform some service of public good or welfare,'" wrote Baliles, citing the case.
So it would seem to my non-lawyer eyes that the legislature is relying upon an Attorney General's interpretation of the court's use of "charity" to get around the constitutional prohibition. But even then, I'm not sure the definition holds. If anything, it would be useful for some enterprising legislator to request a clarification of the Baliles opinion to see if what the General Assembly is doing actually meets both the court's interpretation of the constitution, and the constitution itself.
Given the murkiness of the issue, it may be understandable why professional journalists at the Washington Post and Richmond Times-Dispatch have given the matter only the most superficial of readings. But as Shipley's piece shows, it can be done...if the reporter has the desire or ability to do so.
::: posted by Norman Leahy at 7/10/2006