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By Derk Wilcox
Michigan lawmakers routinely sidestep a constitutional provision when they direct state taxpayer money to private parties or specific local government projects. Now the Mackinac Center’s legal arm is taking the state to court to challenge earmarks, otherwise known as pork projects.
Last year’s state budget contained more than $1 billion in earmarks, including $10 million for Potter Park Zoo in Lansing and $10 million for a youth sports complex in Frankenmuth.
The Michigan Constitution requires that earmarks receive a two-thirds vote in both chambers of the Legislature. A project demonstrates its importance by receiving a supermajority vote, the thinking goes.
Recent sittings of the Legislature have passed budgets filled with earmarks that lack the required two-thirds vote. In the past, the Michigan Supreme Court called attempts to work around the supermajority requirement “subterfuge.” But the courts have more recently become complacent and allowed legislators to practice such subterfuge.
The Mackinac Center Legal Foundation is challenging these earmarks. We filed a friend-of-the-court brief in a case brought by a third party, questioning a special grant to pension plans for Detroit public employees. And in May we also brought, as a plaintiff, a larger, more direct court challenge to abuse of the earmark process.
Our lawsuit argues that bypassing the supermajority requirement makes the constitutional provision meaningless and void while ignoring the explicit intent people showed when they established the current constitution in 1963. Our briefing shows that the Constitutional Convention delegates were specifically asked to allow such spending for economic development. The delegates and the voters who ratified the constitution rejected such claims, however, and they rejected them repeatedly. Michigan’s constitutions have contained such prohibitions for over a century.
Yet politicians keep coming up with ways around the prohibition to support nebulous claims of economic development. The courts have been acquiescing to the Legislature’s claim that earmarks do not need a two-thirds vote because they are in the public interest or are for a public use. When that claim is challenged, a court must determine whether the project meets the standard, not just defer to legislators’ characterizations.
With this challenge, the Mackinac Center Legal Foundation will try to confine the budget to its constitutional role of funding only items that benefit the state as a whole. The state should promote economic development by providing a good economic climate with lower taxes and regulatory hurdles, not by giving special favors to well-connected players.
