Law & Principles
Trent England | October 18, 2017
Rainy day fund raid was unconstitutional
After draining all $240 million out of Oklahoma’s Constitutional Reserve Fund, Secretary of Finance Preston Doerflinger decided to ask the state Attorney General whether doing so was legal. Recently, the Oklahoma Attorney General issued an opinion that, with minor caveats, claims to legitimize Doerflinger’s actions. In doing all this, Oklahoma’s executive branch has drained away not just the money, but the very purpose, from the Constitutional Reserve Fund.
Sound legal analysis begins with common sense, so let’s start there. First, it appears that before last year no one had ever claimed that Oklahoma’s executive branch could unilaterally take money out of the Constitutional Reserve Fund. Second, the purpose of the provision is rather obvious: to have funds in reserve and to protect those reserve funds in the state Constitution. If the money can be removed by a single, unelected state official, that purpose is frustrated.
A final point of common sense, though it might not be so common these days, relates to what constitutions are for. The Oklahoma Constitution is how we, the people of Oklahoma, both grant and limit the powers of our state government. Put another way: the Constitution belongs to us; it exists for us; we are its intended beneficiaries.
One of the ticklish questions for Doerflinger is why he did not take money out of other state funds that actually had more in them than the Constitutional Reserve Fund. The Oklahoma Tobacco Settlement Endowment Trust (TSET), for example, had more than four times the balance. The Attorney General, waving such questions aside, says the Constitutional Reserve Fund is “not held in trust for another entity or a specific purpose.”
The Constitutional Reserve Fund is held in trust for the people of Oklahoma—taxpayers and service recipients alike—with the specific purpose being that in a fiscal pinch or dire emergency the state might have a third option rather than suddenly raising taxes or cutting services. The fact that the Constitutional Reserve Fund lacks a designated bureaucracy or its own special interest beneficiaries is no excuse to consider it less important than other constitutional accounts. It is a sad irony of modern government that narrow interests are “special” while those things that benefit the whole people are devalued.
The Oklahoma Constitution creates the Constitutional Reserve Fund and specifies its uses. In short, 3/8 of the funds can be appropriated to address a projected revenue shortfall, 3/8 can be appropriated when there is a revenue failure, and 1/4 can be appropriated when either the governor or the legislature declares an emergency (this requires either a 2/3 or 3/4 supermajority in both legislative chambers). Again, until last year, everyone seems to have believed these were the only ways to take money out of the Constitutional Reserve Fund.
The Attorney General’s opinion claims the Constitutional Reserve Fund is just one more state “treasury fund” subject to borrowing in order to pay the state’s monthly bills. Instead of the Constitution defining the only ways to take money out of the fund, the opinion declares that the Constitution limits only “appropriations” from the fund. Such a claim demolishes the very idea of a rainy day fund. The Attorney General’s opinion takes the position that money in the Constitutional Reserve Fund is entirely up for grabs, so long as whoever does the grabbing does not call it an appropriation.
Trent England serves as Vice President for Strategic Initiatives at the Oklahoma Council of Public Affairs, where he also is the David and Ann Brown Distinguished Fellow for the Advancement of Liberty and directs the Center for the Constitution & Freedom and the Save Our States project. He also hosts a radio program, The Trent England Show, from 7 to 9 a.m. every weekday on Oklahoma’s AM 1640, “The Eagle.”
David and Ann Brown Distinguished Fellow
Trent England is the David and Ann Brown Distinguished Fellow at the Oklahoma Council of Public Affairs, where he previously served as executive vice president. He is also the founder and executive director of Save Our States, which educates Americans about the importance of the Electoral College. England is a producer of the feature-length documentary “Safeguard: An Electoral College Story.” He has appeared three times on Fox & Friends and is a frequent guest on media programs from coast to coast. He is the author of Why We Must Defend the Electoral College and a contributor to The Heritage Guide to the Constitution and One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty. His writing has also appeared in the Wall Street Journal, USA Today, Washington Times, Hillsdale College's Imprimis speech digest, and other publications. Trent formerly hosted morning drive-time radio in Oklahoma City and has filled for various radio hosts including Ben Shapiro. A former legal policy analyst at The Heritage Foundation, he holds a law degree from The George Mason University School of Law and a bachelor of arts in government from Claremont McKenna College.