When the citizens of a conservative Midwestern state are facing sales tax rates “higher than in California” and income taxes at “the levels of New York,” they might just welcome a good old-fashioned constitutional crisis, ideally one less bloody than the constitutional crisis out of which the state was forged more than 150 years ago.
What set the alarm bells ringing this time was a study commissioned by the legislature that recommended a spending boost of $2 billion or more. These additional dollars would allegedly raise high school graduation rates to 95 percent and improve reading and math scores.
“The bottom line is that Kansans cannot afford what the court is demanding,” Kansas Senate President Susan Wagle said in a statement, “and we cannot afford what the new study is recommending.”
“Bankrupt the state,” said Rep. John Whitmer, R-Wichita. “That’s what you’d have to do.”
As readers of the Sentinel know, the Kansas Supreme Court has been dictating school spending in Kansas for more than a decade. Spoiler alert: the Court always wants more. The Court pulls its authority from a single clause in the lengthy Article 6 of the state constitution: “The legislature shall make suitable provision for finance of the educational interests of the state.” The Court has assumed for itself the right to determine what “suitable” means.
This unholy assumption of power rests on the state’s unique way of selecting justices. When there is an opening on the Supreme Court, a lawyer-controlled commission presents three candidates from which the governor picks one. Unlike most states, the designated justice is spared Senate conformation and is all but immune to citizen recall.
As the watchdog group Kansans for Justice notes, “No Kansas Supreme Court justices have ever been voted out. This makes them a powerful group with no ramification for their actions.”
In his bold new bestseller Skin in the Game, Nassim Nicholas Taleb argues that people who make decisions without any personal consequence to themselves have the potential to undermine justice and wreck economies. “Skin in the game means that you do not pay attention to what people say, only to what they do, and how much of their neck they are putting on the line.” In Kansas governors and legislatures have their necks on the line with every vote. As they have displayed over and over again, the justices in the State Supreme Court do not.
Supported blindly by virtually every major media outlet in the state, the Supreme Court has felt free to impose its will on state’s officials and the citizens who elected them. Buoyed by this latest report, the justices may decide to up the ante on taxpayers even more.
As Taleb would argue, this kind of top-down authoritarianism inevitably leads to disaster. Having no skin in the game, the Justices and their media acolytes lack any real world feel for the difficulty, let alone the efficacy, of raising an 85 percent graduation rate to 95 percent.
This is a fool’s errand, and the legislators will deserve to have their necks on the chopping block if they fail to reject it. A compromise is no longer in order. A constitutional crisis is. The air needs to be cleared.