Narrator: Presentation of Idaho Reports on Idaho Public Television is made possible through the generous support of the Laura Moore Cunningham Foundation, committed to fulfilling the Moore and Bettis family legacy of building the great state of Idaho.

By the Friends of Idaho Public Television and by the Corporation for Public Broadcasting.

Melissa Davlin: About 60% of Americans say reducing deficit spending should be a top priority.

But what's the best way to tackle that?

Today, we hear concerns about a proposal to amend the Constitution for a balanced budget amendment.

I'm Melissa Davlin.

Idaho Reports starts now.

Hello and welcome to Idaho Reports.

This week, McKay Cunningham from the College of Idaho discusses potential issues with an effort to add a balanced budget amendment to the U.S. Constitution.

Then Kevin Richert of Idaho Education News, Dr. Stephanie Witt of Boise State University and former Attorney General and Supreme Court Justice Jim Jones join me to review the week that was and to remember our friend Dr. Jim Weatherby.

But first, let's get you caught up on the week.

On Thursday, by one vote, the Senate rejected a bill that would require public school and community libraries to establish material review committees to review requests to relocate materials from the library's children's sections.

During debate, three camps emerged, one that said the bill went too far, one that said it didn't go far enough, and another that said this might be the best compromise bill the legislature could produce.

Sen. Geoff Schroeder: Is this material harmful to minors or is it not?

Everybody picks up a phrase and calls something porn or pornography.

Maybe it is, maybe it isn't.

Se.

Rick Just: There is no plague of pornography in our libraries.

Every library in the state already has a process in place for challenging books.

Sen. Scott Herndon: It sounds like a very bureaucratic, difficult process to me.

Sen. Tammy Nichols: This is a very convoluted approach to trying to help families and help parents.

Sen. Ali Rabe: I do believe that it creates a financial incentive for people to cause additional chaos in our libraries.

Sen. Chuck Winder: If you think about it, I mean, you can oppose this, you can vote against it, but I don't want to go home without a library bill.

And I think this is the best we're going to get this year.

I really ask you to think hard about what you might get if you don't get this one.

Davlin: Thursday's vote doesn't mean the library content debate is dead for the year though, we'll continue to follow the issue throughout the session.

On Wednesday, the ACLU of Idaho announced its plans to once again appeal to the Idaho Supreme Court in Tucker V Idaho.

A long running lawsuit over the constitutionality of Idaho's public defense system.

The case was initially filed in 2015 over alleged systemic inadequacies in how Idaho provides legal representation to defendants who can't afford an attorney.

An Ada County district judge dismissed the case in early February, saying the newly established state funded public defense system needs the opportunity to get up and running before more legal action moves forward.

Prior to that announcement from the ACLU producer Ruth Brown talked to Idaho Association of Counties Executive Director Seth Grigg on the Idaho Reports podcast about the transition from a county based public defense system to a state based system.

You can find the Idaho Reports podcast online at IdahoReports.org or wherever you listen to your podcasts.

The Idaho Senate has introduced a resolution to call for a constitutional convention at which representatives from the states could amend the US Constitution.

In this case to add a balanced budget amendment.

At an Idaho Press Club event last week Governor Brad Little expressed frustration at Congress for the country's current $34 trillion debt.

Gov.

Brad Little: I have evolved over time because everybody said, well, Congress is finally going to figure this out.

They're finally going to do something.

I have reached the desperation phase.

And of course, the theory is we're going to get every state we need but one, and then Congress is going to do the right thing.

Count me skeptical about that, but I'll take it anyway.

Davlin: In January, Mick Mulvaney, former chief of staff to President Donald Trump and retired U.S.

Senator Larry Craig, joined me on set to discuss their support for a balanced budget amendment.

But others have concerns.

On Friday, McKay Cunningham, constitutional law professor with the College of Idaho, joined me to outline some potential issues with the proposal.

Thank you so much for joining us.

For those who aren't familiar, what is an Article V Constitutional convention?

McKay Cunningham: Yeah, there are two ways to amend the Constitution.

The Constitution has been amended 27 times.

And the first way is through Congress.

They propose changes to the Constitution and then the states ratify those changes.

The second way, which has never been done before, is what we are discussing here tonight.

And that is a convention of the states.

So if two thirds of all of the states agree to propose changes to the Constitution, there would be a convention in which they will address potential changes to the Constitution.

It's called a convention of states or an Article five convention.

Davlin: What are some potential issues with that proposal?

Cunningham: Wow, well, first of all, like we said, it's never been done before.

And the Constitution does not lay out any rules about how such a convention would take place.

And so there are just an ocean of questions about what would an Article V convention of the states look like.

Who gets to attend?

Who gets to vote?

How do you vote?

Is it one state, one vote?

Or do states with a larger percentage of the population like California and Texas and New York, get a larger vote share than smaller states by population like Idaho and South Dakota?

Davlin: Like the Senate or like the House?

Cunningham: Yeah, right.

I mean, there's just a lot of questions about how this convention to change the Constitution would work.

Davlin: But couldn't the states put parameters around how that convention would work if they get to that point?

Cunningham: Yeah, they certainly could try.

And Idaho previously has suggested if we have a delegate from from Idaho go to a convention of the states, that delegate would have to comply with certain parameters.

It's just that we don't know how to enforce those kinds of parameters.

And in fact, Melissa, the one example that we do have happened in 1787 when delegates from the 13 states back then gathered in Philadelphia and their charge was just amend, just amend, the articles of Confederation, and yet they closed the doors, drew down the sashes, and they scrapped the whole document.

What's to stop folks from doing that again?

Davlin: You know, these all kind of seem like extreme scenarios for for a constitutional convention that may not even happen in the first place.

Then there's the question of spending in the first place, the whole thing that is driving this particular movement.

Is it even a problem that there is so much debt?

Because there are an awful lot of people in this country, both Democrats and Republicans, who are very concerned that we have a $34 trillion debt, right?

Cunningham: Yeah, you bet.

And I am one of them.

Yeah.

$34 trillion deficit.

I think it is fairly clear to, I saw a recent poll that suggested 80% of Americans, both Democrats and Republicans, want fiscal restraints on Congress.

And I think that's definitely something to do.

The question in my mind is how do you do it?

Opening this document, the Constitution, up to wholesale revision is not worth it, particularly when in the Clinton administration, for example, they did balance the budget.

And in 1999, by federal statute, rather than by revision of the Constitution, Congress got one vote shy of creating a statute that would require fiscal restraints and spending by Congress.

Davlin: When the Clinton administration had a balanced budget for, I think, two years during his term, the national debt at the time was was much smaller.

I think we're talking about $5 trillion in the mid nineties we're, we've blown way past that now.

It is if they haven't done it by now, is it realistic to say, hey, why don't we just do like we did in 95 and pass a balanced budget.

Cunningham: Yeah, I do think it's more difficult with with a bigger deficit.

Definitely more difficult.

I don't know that that is a reason to not do it.

It's perhaps more reason to to get moving on this.

And there's lots of different ways that you can create a statute rather than changing the Constitution to to roll down that deficit.

Davlin: Now, you mentioned that you yourself are concerned about spending.

Are there any, that's the thing, a lot of people are concerned about spending.

But when you start to talk about specific programs to take away, that's where we run into issues.

Is that maybe where, you know, you see the biggest hurdle to creating a statutory fix?

Cunningham: Yeah, that's a great question.

There are a lot a lot of federal programs.

And I think that there's a lot of room for cuts across federal programs.

And even though we suggested that there is a poll that 80% of Americans want, they want a balanced budget, it's not their primary reason to vote for a candidate as opposed to not voting for a candidate.

All to say, if there was enough political will by by the voters to vote for candidates primarily because they want their candidate to slash the deficit or to create a balanced budget, I think that that could definitely occur.

Davlin: You testified against the Senate proposal in mid-February.

What was your sense from the committee?

They seemed to be pretty on board, most of them anyway, for for passing this.

Did they seem open to your concerns?

Cunnningham: I don't know that I can speak to how open they were with regard to my testimony.

You only get 2 minutes, which is not a lot of time, but I'm glad that you brought that up.

I think that your viewers should be aware of the precise bill that is being proposed right now in the Senate.

It's a bill to change the Constitution, but it's not limited to the balanced budget question.

And we've been talking about how to balance the budget, which is definitely something we need to do.

But when you look at that bill in particular, and I'll quote it for you, just to make sure that I don't mistake what the legislature is trying to pass, they want to change the Constitution in order to do three things.

One is to impose fiscal restraints on the federal government.

The second is to limit the power and jurisdiction of the federal government.

And the third one is to limit the terms of office of several of the officials.

And it's that second thing to limit the power and jurisdiction of the federal government, which is deeply concerning.

It's deeply concerning because every single word just about of the Constitution addresses the power and scope of the federal government.

That means that I don't know, take the Bill of Rights.

That means that it would be open to revision, free speech, free exercise of religion, the freedom to carry and bear arms.

It goes on and on.

All of those deal with the power and the jurisdiction of the federal government.

And as a result, if there was a convention of states, it wouldn't be limited to just balancing the budget.

It would open this entire docume Davlin: Do you get the sense when you're looking at this, not just in Idaho, but nationwide, that other states are putting language into their concurrent resolutions or are very limited to the budget?

Cunningham: That's a great question.

There are 19 states, by my count, that have proposed resolutions to have a convention that is broader, that includes this language about limiting the power of the federal government.

There are about 28 or 29.

And by the way, it's hard to know exactly how to count.

There are about 29 states who have proposed a constitutional amendment with regard to just the balanced budget.

Davlin: So I'm hearing a couple of things here, that states aren't on the same page, but they're getting closer to that two thirds threshold to potentially make this happen.

Cunningham: They certainly are.

And it poses a really interesting question because how is it that you count?

In other words, if Idaho passed this piece of legislation that we've been talking about, it says balance budget, limit the power of the federal government and term limits.

Do you count that as just a balanced budget amendment?

So it goes from 29 to 30?

Or do you not count it because it's not specific, specifically just a balanced budget amendment?

Those are open questions.

And we don't really have an authority to say how you count these petitions.

Davlin: McKay Cunningham, thanks so much for joining us.

Cunningham: Thank you.

Davlin: Dr. Jim Weatherby passed away earlier this week.

Longtime Idaho Reports viewers will know that Dr. Weatherby was a regular guest on the show with near weekly appearances on our pundit's panel for decades.

Weatherby was the former executive director of the Association of Idaho Cities and a professor emeritus at Boise State University's School of Public Service.

He was among the most astute observers of Idaho politics in the state's history.

And he was always generous with his time with people who were willing to listen and learn.

He loved his wife, Dana, and their children and grandchildren, and he spoke of them frequently.

He also had a wicked sense of humor.

Dr. Jim Weatherby: I think the kindness business has been overdone.

As you know, or some of you know, I was a lobbyist for 15 years.

And to be praised as being so kind, or I was told that more than one occasion that I was too nice a guy to be a lobbyist.

And I took great offense at that.

Davlin: In joining us today to remember Dr. Weatherby is Kevin Richert of Idaho Education News, Dr. Stephanie Witt of Boise State University School of Public Service.

And Jim Jones, former attorney general and Supreme Court justice.

You know, he joked, Jim Weatherby joked that kindness was an insult to him, but he really was an incredibly kind and generous person when it came to his time and explaining what he knew to people like me who had so much to learn.

Dr. Stephanie Witt: Well, he was a tremendously generous guy with me, with this time, with sharing information.

I try to joke that the parts about Idaho I get right, I learned from Jim.

You know, he was so patient with me when I first came to the state and first learning kind of how things work on the ground with Idaho's state and local governments.

And he was so generous with me and with all our students.

And he was a very dedicated teacher.

And he put so much time in preparation, whether it was to return a call to someone on the media, or to come into class, or to do this show.

I remember he had this big thick binder that he would drag all over campus even after he retired, doing background on whatever we were going to talk about that week on Idaho Reports.

Davlin: Yeah, I for years, we met with him twice a week for coffee in preparation for the show, and he would have that binder with him and he would outline what he had his eye on and be able to give us some historical context.

And, you know, just in the middle of this coffee shop and I never wanted to take that for granted because I learned so much from those coffee meetings.

Kevin Richert: You know, I don't like the word mentor because I think we've cheapened it as a society.

We overuse it.

Jim was a mentor to me and to so many of us who have tried to write about Idaho politics or study Idaho politics or just try to make sense of Idaho politics.

He always had time for that.

And he was he was so good.

I mean, there was a time when I was at the Statesman that Bill Manny was an editor there, and he instituted a Weatherby moratorium.

He wanted reporters to have to go to somebody else to get context and insight and wisdom about Idaho politics, which says something.

I mean, he was so good at it that he became, you know, there was too much of a good thing.

And it also really speaks to his generosity.

He had time for the dumbest questions from reporters.

And I know I exercised that a lot.

He's just a true teacher.

You know, I had a chance a few years ago to go back to school and to get my master's in public administration at Boise State.

I took three classes from from Dr. Stephanie Witt.

And I don't think I get that chance because I don't think that that program exists in Boise without Jim's vision for it to have this thriving MPA program in the state's capital.

And that's not just about me.

I mean, you know, it.

I mean, there are so many smart and passionate people going through that program and they got their chance to learn and to advance their careers in a program that has Jim's fingerprints all over it.

I mean, that's a huge part of his legacy.

We just owe him so much.

I know I owe him so much.

Witt: It's hard to find a governmental agency, or elected body, or nonprofit in the Treasure Valley that does not have a student who came from Weatherby.

Right.

His students are running all of those kinds of organizations.

And to me, that's one of the best senses of his footprint on the legacy in the area is the number of people from all political stripes that were former students of his.

Davlin: And Justice Jones, you knew him when you were attorney general starting in 1983.

He was with the Association of Idaho Cities at the time.

Jim Jones: Yes.

You know, I think I learned a lot from Jim, too, because, you know, I'd run for Congress a couple of times, unsuccessfully.

And then I got the AG's job.

But I really hadn't dealt with the legislature and didn't know a whole lot about how you approach that, you know.

And just watching him, you know, he would come in and he would be honest and straightforward and humble and helpful.

If there was something that was a little bit awry with the city's position, he would tell you.

I mean, he would not hold back.

And we worked with him very closely on issues related to city government, because Dan Chadwick in my office worked with the cities and helped them out on legal issues and so on.

Davlin: Dan Chaddock was with the counties at the time.

Yeah.

Jones: Well, no, at that time he handled all local government.

Of course.

Cities and counties.

Irrigation districts.

But, you know, it was just so helpful.

And we always got along with him so good.

And when he said something, you know, you could count on it.

Davlin: Yeah.

Yeah.

That's it's a valuable trait to be sure.

Well, and I think one of the best ways we could honor Jim's memory is to have a good, solid pundit panel right now looking at some of the news of the week, because it was absolutely a busy week.

I will say if there is a public memorial service that we will post that information on the Idaho Reports page, if anyone is interested.

A lot did happen this week in the legislature, and a lot, as always happened in the education arena.

Launch got its day in front of the Joint Budget Committee.

Richert: The first step happened on Friday.

The Joint Finance Appropriations Committee funded Launch.

They gave Governor Little his funding request.

That was the easy step.

I mean, that's a pretty solid committee in terms of support for Launch.

What happens now, and we've talked so much the session about this whole budget process, this whole budgeting process and how different it is, what happens to a Launch budget bill in the House and the Senate.

Well, now we go into this uncharted territory.

And, you know, a lot of it, you know, points right towards Mike Moyle, the speaker of the House, who is no fan of Launch and has made no bones about that.

I spoke to him on Thursday and said is is a Launch bill going to make it onto the floor?

And he said, you know, he did not make that assurance.

He said, you know, I could put it in the House Ways and Means Committee and bury it, and don't think I won't.

It depends on what the bill looks like.

So we'll see.

You know, this is a very unusual, you know, unprecedented process for budgeting.

So, you know, we'll see where it goes from here on.

Davlin: We heard from Governor Little last week that he did not have an assurance from the House speaker that Launch, which is his big program for his second term, that launch would get a vote on the House floor at all.

Richert: No.

And there's no guarantee that that's going to happen.

I mean, I think the point that he's trying to make and we've heard other people make it, is that there's a lot of support in the communities for this, that there are a lot of high school seniors who've applied.

There are a lot of employers who are looking for help finding employees.

I know the governor is kind of hoping that that kind of critical mass brings pressure to bear on lawmakers who may be on the fence about this.

We'll see.

Davlin: On Friday, the House passed the school facilities bill with only six no votes.

There was a lot of debate and a lot of people brought up concerns about the bill and different provisions in the 30 pages of the legislation.

But ultimately, it passed pretty easily.

Kevin, did you have a chance to watch that debate?

Richert: I did not, but I'm not terribly surprised by the results.

I think the House vote was pretty anticlimactic.

When you see what was happening in the committee earlier this week.

You've got the governor behind this.

You've got legislative leadership behind it.

You've got education groups behind it.

I mean, who's going to stand in the path of it at this point?

And I, I can't imagine it's going to hit much resistance in the Senate unless something really unusual surfaces in the days to come.

Davlin: It seems.

Dr. Witt, like most people agree that something needs to be done about school facilities.

You know, we've been talking about this.

This is not a new issue at all.

This has been going on for decades that there is uneven funding when it comes to school facilities in Idaho.

Witt: You know, we talked earlier about Bob Huntley and his lawsuit that brought to the fore this issue about the inequities that result when low property value districts try to pay for school buildings in comparison to those that might be better financed, that you end up with wide discrepancies in the quality and safety of the public school buildings.

So it's a relatively unique thing that our local taxpayers have to bear 100% of the cost of the school buildings.

Maybe there's another way to do that.

Davlin: You know, and Justice Jones, you were on the court when that lawsuit made its way to your bench.

And of course, the court ruled against it.

But there was some, in that decision, there was an interesting almost path forward for what a successful lawsuit might look like.

And we haven't seen that yet.

It's been, what, eight or nine years since that lawsuit was, you know, since you ruled on that lawsuit.

Are you surprised that that hasn't come in front of the court again?

Jones: I am a bit surprised.

You know, the court did sort of dangle an invitation that if the legislature did not meet its responsibility, and it's their responsibility under the Constitution to pay for buildings and to maintain the buildings, we kind of left it open.

If they don't do that, then you can come back.

They, the plaintiffs didn't come back.

I've kind of looked at the issue of whether that invitation would be open to anybody else, because we definitely held that putting it all on the property tax is arbitrary and not in keeping with the constitutional requirement.

So it could happen.

Davlin: Taking a look at this legislation, would that satisfy the legislature's obligation to fund school facilities?

Would that would that take that path forward off the table?

Jones: Well, it depends on how this plan works out.

If it actually does make a real dent, then I think that would probably discourage anyone from bringing a suit.

But I think it's a matter let's see how it works out.

Davlin: There's another issue, too.

There's a lot crammed into this bill, a lot of different policy proposals that on the surface have nothing to do directly with school facility funding.

And we've gone over it before, but just as a reminder, you know, diversity, equity and inclusion bans in hiring processes.

The makeup of the State Board of Education.

Richert: The August school election date.

Davlin: The August school election date is a huge one.

Seemingly nothing to do with school facility funding.

There's a constitutional provision that says that legislation has to have a single topic that ties it all together.

And this kind of, this stretches that on, you know, looking at what's in that bill.

Richert: Yeah.

And it feels like everybody kind of does a wink and nod about this right now.

I mean, when Governor Little was asked about it last week, he talked about the, you know, the golden thread and the subject matter of this that kind of ties it all together.

I mean, that thread is working really hard when it comes to this bill.

Davlin: Stretched pretty tight, I think, as we put it last week in our interview with one of the bill's sponsors, Majority Leader Jason Monks.

We have about a minute left.

Do you think that would stand up to the court scrutiny.

Jones: If somebody challenged it I think there's a really good chance that it would be found in violation of the single subject rule.

I mean, you can't put everything on the Christmas tree and have it run through.

And this is about as bad as you can get.

Davlin: You know, considering how popular though wanting to fund school facilities is, again, it got a standing ovation during the governor's state of the state speech.

Do you think anyone would bring that challenge if this were to pass, Dr. Witt?

Witt: Well, we don't seem to have any shortage of people willing to sue about things.

I'm sure someone will.

Davlin: All right.

Well, hey, thank you all so much for joining us.

Dr. Stephanie Witt, Boise State University School of Public Service.

Jim Jones, former attorney general and Supreme Court justice.

And Kevin Richert, Idaho education news.

And thank you for watching.

We have much more on our Web site.

You can find all of our online coverage at IdahoReports.org We'll see you next week.

Weatherby: And I want to thank my wife, Dana, who was by my side every time, through all of the struggles of dealing with the Idaho legislature and lobbying.

Narrator: Presentation of Idaho Reports on Idaho Public Television is made possible through the generous support of the Laura Moore Cunningham Foundation, committed to fulfilling the Moore and Bettis family legacy of building the great state of Idaho.

By the Friends of Idaho Public Television and by the corporation for Public Broadcasting.