February 13, day 5 of the 68th Legislative Budget session, accusations of “Legislating in the Budget” were thrown at the current Appropriations Chairman John Bear. Representatives Steve Harshman, Landon Brown. Lloyd Larsen criticized Chairman Bear for making policy changes in the budget. In past sessions, Democrats, liberal Republicans and Conservatives have all legislated in the budget, despite their protestations on the floor.
Simply put, legislating in the budget is making policy changes in a spending bill. Article 3, section 34 of the Wyoming Constitution strictly prohibits this practice:
“The general appropriation bills [the budget] shall embrace nothing but appropriations for the ordinary expenses of the legislative, executive and judicial departments of the state…”
In 2019, Governor Gordon sent a letter to then Speaker of the House, Representative Harshman about the practice of legislating in the budget.
“The Constitution envisions single-topic pieces of legislation and where these footnotes appear to be more appropriate as their own bills, I have attempted in this review to be forbearing, objecting to only the most grievous examples of “legislating from within the budget…” The entire letter is about the unconstitutional practice.
Budget amendments do not go through the same process as single subject bills. Regular bills must go through the committee process and receive input from the public. If a policy change is made in the budget, the public is excluded.
Even Rep. Landon Brown agrees. On Feb 13, in the afternoon he said, “you're being asked to make a major policy decision within a funding document. That is the main priority of the budget is to fund the government… [Legislating in the budget] is not allowed. We're not allowed to do that. That does not pass constitutional muster.”
Rep. Lloyd Larsen’s contribution to the admonishment of Chairman Bear was done in his typical schoolmaster tone; “We're amending the green books. Can't do that in the budget bill. Tisk tisk tisk. You can't do that. But even if it's the greatest idea of all time, we can’t legislate in the budget bill.”
Not more than 5 minutes later Rep. Steve Harshman, who almost always sides with the liberal Republican contingent in the House, admitted that he’s not opposed to violating Article 3, section 34.
“Hey, and I'm not always opposed to legislating in the budget, but I um, Hey, it's our appropriations and we've had this thing with the executive branch. I mean, that's the natural friction of three branches of government.”
One example of legislating in the budget is the sale of the Kelly Parcel. The sale was first proposed in the 2024 bill HB121. That measure failed. Then proponents of the sale added an amendment to the budget authorizing it. All of the legislators who are now decrying legislating in the budget voted for it. The budget bill is for spending money, it's not for crafting policy and the Wyoming Constitution says so.
The Wyoming Tomorrow Scholarship was originally proposed in 2021 House Bill 165. It died in committee. Later, this same scholarship was created in a budget amendment. A brand-new scholarship, a completely new policy and system of funding education was created without public input or being vetted by any committees.
There are countless other examples where policies were created by a small budget amendment without any public testimony or discussion in a committee. Critics of this practice claim that this eliminates public participation. Proponents of legislating in the budget argue that these policy changes have already been vetted and could have failed for any number of reasons.
Both conservative and liberal legislators have engaged in this practice. Shortly after Rep. Harshman said he didn’t always have a problem with legislating in the budget, Rep. John Bear said; “You heard the word ‘can’t’ an awful lot, but then you also heard of where we have done it in the past. I guess this is where the good coach and I have a lot in common. We like to get stuff done. And I think this can be done. It's been done before and we can do it here.”
Regardless of what any them say, the Constitution still says it shall not be done in Article 3, section 34.