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Dunleavy’s Constitutional Amendment Alive and Kicking

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A little before 10:30 yesterday morning, Senator Mike Dunleavy’s proposed constitutional amendment, SJR9, passed a significant benchmark in its quest to arrive on a ballot near you. The amendment would remove the prohibition on public funds being used to directly benefit private and religious schools

Last year, the proposal cleared its first hurdle when it was moved out of the Senate Judiciary Committee, with the recommendations of senators John Coghill (R-North Pole) and Fred Dyson (R-Eagle River). Wednesday, it cleared the Senate Finance Committee. Senators Pete Kelly (R-Fairbanks), Kevin Meyer (R-Anchorage), Mike Dunleavy (R-Wasilla), and Anna Fairclough (R-Eagle River) all lent their recommendations for passage.

Last session, the proposal stalled in the Finance Committee. Over the winter, Senator Dunleavy was characterizing its paralysis as an attempt by the legislature to deny voters their right to vote. The effort was all but dead.

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Governor Parnell resurrected SJR9 in last month’s “State of the State” speech, giving SJR9 new life and a hearing before the Senate Finance Committee on Monday. In the four hours of testimony that evening, into the night, nearly one hundred Alaskans called in from legislative offices and homes around the state. According to the Alaska Democratic Party, callers opposed SJR9, 82 to 12. Testimony resumed the following morning at nine o’clock with more mixed results. The bill was ultimately held over, prompting Senate Minority Leader Hollis French (D-Anchorage) to offer KTUU a bid of confidence: “When you don’t have the votes, you talk. If they’re still talking, that suggests something about where the votes are.”

If that is the case, somewhere between French’s remarks Tuesday night and Wednesday morning, Senator Dunleavy found a lot of votes – though that’s unlikely (the key indicator will be how quickly it is scheduled for a vote on the senate floor). A constitutional amendment requires a two-thirds vote in each chamber to land itself on a ballot, where it would then need two-thirds vote by the public. The senate version of the proposal contains eight co-sponsors, meaning that if and when it is scheduled for a floor vote, they’re still six shy of the needed threshold. In the house, the magic number is 27.

Alaska is one of 38 states to include “Blaine Amendment” language, named after Republican Representative James Blaine of Maine. The failed, late-nineteenth century U.S. Constitutional amendment read in part:

[N]o money raised by taxation in any State for the support of public schools… shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.

Alaska’s Constitution, Article 7, Section 1, similarly specifies that “No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.”

Parnell, in his “State of the State” speech, emphasized a need to “commit ourselves to a respectful debate that ends with a plan to offer more opportunity to more students. I want to start that discussion by going back to basics: the Alaska Constitution.”

Oddly, his very next suggestion was to change it.

Two other states have recently flirted with a similar move. Florida proposed a “Religious Freedom Amendment” in 2012. The effort cleared the state legislature, but only garnered 44 percent of the public vote.

Last year, Virginia Republican Gubernatorial candidate, Ken Kucinelli, proposed a voucher system-based education reform package, which would have required passage of two constitutional amendments to Virginia’s Constitution. Voters narrowly declined his candidacy, precluding further discussion.

Many other states have voucher systems despite Blaine language provisions remaining in their constitutions, due to a 2002 Supreme Court case, Zelman v. Simmons-Harris. The 5-4 decision found that a Ohio voucher program didn’t directly benefit religious institutions. Instead, the funding essentially “followed” students to different schools, which happened to include religious schools. The decision, by Chief Justice Rhenquist, has created a loophole, and could arguably be incorporated into the existing framework of the governor’s education package, should the SJR9 fail (talk of money “following” students was mentioned more than once during Monday’s Joint Education Committee meeting).

Alaska would be the first state to repeal Blaine Amendment language outright, and conservative groups like the Alaska Policy Forum and Alaska Family Action are rallying support. The next step will be a full vote by the senate, with a date yet to be scheduled by the Rules Committee. Senator Lesil McGuire (R-Anchorage), chair of the Senate Rules Committee, is a co-sponsor of the legislation.