For years, Forgotston worked as a staff attorney for the House Appropriations Committee in Baton Rouge. Having been in the belly of the beast, he knows first-hand how lawmakers sometimes pass laws that they know are unconstitutional -- sometimes to assuage the demands of an aroused but largely uninformed electorate, but just as often to help themselves and/or their cronies.
Forgotston has railed for years about the arrogance of those in power, but no official sin gets under his skin more than lawmakers passing blatantly unconstitutional laws.
"The worst argument one can make before a legislative committee -- and I know, because I used to make it -- is that a particular measure violates the state constitution," says Forgotston. "The response is always the same: 'That, C.B., is for the courts to decide.'"
Technically, that response is accurate. The courts have a duty to strike down unconstitutional laws. But don't lawmakers also have an obligation to consider the constitutional implications of a measure before passing it? If they punt every tough decision to the courts, they not only shirk their oaths of office ("to support the constitution"), but they also waste millions in taxpayer dollars by forcing the state attorney general's office to defend unconstitutional laws once those laws are challenged. (The AG has a duty to assume that all laws are constitutional; therefore, the office sometimes finds itself struggling to defend measures it knows are bad laws. This taxes the limited resources of the office and wastes taxpayer dollars.)
Worst of all, many bad laws are passed and not challenged --not because they are arguably valid constitutionally, but because no one has the resources (read: money and time) to mount a legal challenge. This is what really gets Forgotston's goat, and I have to say he's right.
"Litigation is expensive," says Forgotston. "Most of us don't have the financial resources to litigate the constitutionality of a state law. Such lawsuits, which end up being decided by the Louisiana Supreme Court, cost hundreds of thousands of dollars.
"A blatant example of how lawmakers abuse our constitution, and thus us, is how they routinely pass illegal or unconstitutional taxes disguised as 'fees.' They know that the amount is often too small for the average citizen to complain effectively or be able to afford to litigate against."
One example cited by Forgotston is lawmakers' penchant for passing small surcharges ("fees") during non-fiscal sessions, such as when lawmakers added a one-dollar charge to our driver's licenses during the administration of former Gov. Mike Foster. Who can afford to challenge that, when the amount in question is only a dollar per person? It was patently illegal, but no one bothered to challenge such a trifling error.
Forgotston recently suggested an answer to that dilemma: a public interest litigation group. I'd like to second that motion.
"My suggestion is to either revamp or consolidate all the paid so-called legislative 'watchdog' and 'think tank' groups and use the resources for public interest litigation, strictly to deal with unconstitutional acts of the Louisiana Legislature," Forgotston says.
That would mean combining groups such as the Public Affairs Research Council (PAR), the Council for A Better Louisiana (CABL) and others. I'm not sure those groups would go for that, but I do think they -- and many of their members -- would support the establishment of the Louisiana Public Interest Law Center (my name for it). The sole purpose of the center would be to litigate matters large and small on behalf of powerless citizens when lawmakers, police juries or parish councils enact laws that run afoul of the state constitution or home rule charters.
"Legislators who disrespect our constitution disrespect us, their constituents," Forgotston says.
I agree. I say it's time to fight back. Does anyone else agree?