In a letter to Del. John O’Bannon, who requested the opinion on this writer’s behalf, Cuccinelli states that while this charitable giving may be “…noble in purpose and salutary in effect,” they are also “precluded by operation of Article IV, § 16 of the Constitution of Virginia.”
Virginia Attorney General Ken Cuccinelli has issued this official opinion on whether the state government can provide grants to nonprofit organizations it neither owns nor controls and so it seems, no it cannot.
This opinion, while it does not make new law, can be cited in court and have typically guided state policy.
The question now becomes whether the Governor will continue to press for the $1 million worth of grants he is seeking for two private nonprofits and even more, if the Senate will try to keep the nearly $6 million in grants it’s members are seeking for a variety of nonprofits.
If they do decide to spend the money, they open the gate for a lawsuit. In that case, Cuccinelli’s opinion will play the role of double-edged sword. As the state’s lawyer, his office would have to defend against any such suit. But with this opinion in hand, he may have to counsel his clients that they cannot win.
But my hope is that lawmakers will follow Cuccinelli’s advice and bring an end to a decades-old, bipartisan practice of handing out taxpayer money in clear violation of the state’s constitution. If they wish to continue doing so, the only option available to them is to amend the constitution. That takes a great deal of time and effort to do, and as Del. O’Bannon indicated to me, it’s not likely such a change would go anywhere (at least in the House).
We can hope so. But even more, we can hope that, finally, the folks we send to Richmond will gain a bit more appreciation for what the constitution says. I think the AG summed it up quite nicely:
“…where the Constitution commands or forbids, the government must obey.”