Attorney General: Use of Funds from Lottery Unconstitutional

William C. Flook, The Examiner

WASHINGTON –

Virginia Attorney General Robert McDonnell told state lawmakers Tuesday that their long-standing practice of sending lottery revenue into the state’s main funding pot and not directly into local education is unconstitutional.

The legal opinion, while advisory, clears up a budget dispute over the course of the proceeds and could prompt legislators to change the way they route the more than $400 million the lottery raises each year for local school systems.

Republican Lt. Gov. William Bolling last month sought to block the state Senate’s slim Democratic majority from passing its budget by insisting that the inclusion of lottery money into the state’s largest spending fund would require an 80 percent vote, which would have been impossible in the increasingly divisive chamber. Bolling was overruled.

The opinion from McDonnell, also a Republican, lends legal weight to Bolling’s original argument. The attorney general pointed to a July 2001 constitutional amendment that mandated the money go directly to schools.

The revenue, however, has been dropped into the general fund, which also pays for items such as transportation, public safety and human resources, and then put toward education.

“It is clear that in approving this constitutional amendment, the voters believed that the net lottery proceeds would be distributed directly to localities for the purpose of funding education,” McDonnell said in the opinion, which was issued at the request of Republican senators.

A senior staff lawyer for the General Assembly’s Division of Legislative Services reached a similar conclusion last week.

“I think everybody agrees now that this has been pointed out that [lottery proceeds have] not been functionally or administratively handled in the appropriate way,” said Sen. Mary Margaret Whipple, D-Arlington, chairwoman of the Senate Democratic Caucus.

Whipple, who said the matter was simply one of process, expected lawmakers to correct the misstep shortly.

“I don’t think that should be a difficult change to make,” she said.

“Now it is up to the budget conferees to bring back to us a report that follows the spirit and letter of the constitution,” said Sen. Stephen Newman, R-Lynchburg.

Into the funding pot

Where lottery dollars are supposed to go:

• Under the Virginia constitution, the money must be put into the “Lottery Proceeds Fund” and send directly to “counties, cities and towns” and their school divisions for education.

Where lottery dollars have been going:

• Legislators create the lottery proceeds fund for a brief period and quickly dump the money into the general fund, from which education money is drawn.

wflook@dcexaminer.com