by Karl Kurtz
The federal economic stimulus package (The American Recovery and Reinvestment Act) raises some interesting state legislative procedural questions. Section 1607 of the Federal Stimulus Bill (HR1) states:
45 days after the date of enactment of this Act, for funds provided
to any State or agency thereof, the Governor of the State shall
certify that: (1) the State will request and use funds provided
by this Act; and (2) the funds will be used to create jobs and
promote economic growth.
(b) ACCEPTANCE BY STATE LEGISLATURE.—If funds provided
to any State in any division of this Act are not accepted for use
by the Governor, then acceptance by the State legislature, by means
of the adoption of a concurrent resolution, shall be sufficient to
provide funding to such State.
(c) DISTRIBUTION.—After the adoption of a State legislature’s
concurrent resolution, funding to the State will be for distribution
to local governments, councils of government, public entities, and
public-private entities within the State either by formula or at
the State’s discretion.
Sections (b) and (c) were inserted because of the threat by several governors, led by Gov. Mark Sanford of South Carolina, not to accept funds. Congress uses both joint resolutions, which must be signed by the president to become law, and concurrent resolutions, which do not go to the President. Presumably, Congress used the term "concurrent resolution" thinking that states have similar rules allowing such resolutions to pass without approval by the governor. This is indeed the case in South Carolina, the state at which this provision was aimed.
However, the problem is that many states have no provision for "concurrent" resolutions. As our North Carolina colleague Gerry Cohen points out, the North Carolina Constitution provides for joint resolutions, which do not require the signature of the governor, but contains no references to concurrent resolutions. Nebraska has a unicameral legislature, so how can it enact a concurrent resolution? What should state legislatures that don't have concurrent resolutions do?
That's not the only drafting problem in Section 1607. Paragraph (a) is explicit about the time frame for certification by governors, but it doesn't say anything about the timetable for state legislative certification. Do legislatures have to act within the 45 days? If so, what if the governor doesn't act one way or another until the 45th day? Is the legislature out of luck?
NCSL is seeking guidance from the administration on these questions as they develop implementation plans.
All of this may prove to be academic, as the recalcitrant governors now mostly seem to be saying that they will accept all of the funds except for the incentives to the states to make changes to eligibility for unemployment compensation, which were clearly optional and would in any case require state legislative action for states to participate.
As a footnote, NCSL provided Congress and the administration with language that would have eliminated these problems. Our suggested language would have substituted the word "state" for "governor" in paragraph (a), thereby deferring to each state's practice regarding the appropriation of federal funds. Unfortunately, congressional drafters did not accept this language.