ANNAPOLIS — A portion of a bill that would limit mandated spending increases within the state budget is unconstitutional, according to an advisory by an attorney to the General Assembly.
The email is part of a larger debate between Republican Gov. Larry Hogan, who is seeking the limitations when projected spending exceeds projected revenues, and the Democratic majority legislature, which is seeking to maintain the status quo and argues that the bill is an effort to increase the authority of a state executive that is already the most powerful in the country.
State Budget Secretary David Brinkley Tuesday said current approaches to dealing with mandated spending in lean years only allow reductions on a year-to-year basis through a separate bill. Meanwhile, state budget growth for mandated spending increases by about 4.8 percent while this year’s revenue growth is just 3.5 percent.
“It’s a malignancy that continues to grow,” Brinkley said.
Hogan’s proposal calls for the ability to limit the growth on mandated spending beginning in fiscal 2019 for years when the state revenues aren’t expected to increase by more than 2 percent over projections made in the previous December.
The bill exempts four categories including K-12 education, state pensions, the state rainy day fund and payments on state bonds.
There are roughly 150 mandated spending items within the state budget. Only 86 would be affected by the Hogan proposal. The rest are exempt.
But the bill also requires the legislature to offset any new mandated spending items in the future by reducing other required formula spending by an equal amount.
David Stamper, an assistant attorney general for the legislature, wrote in an email that the requirement “is invalid.”
“The General Assembly cannot by ordinary legislation limit the authority of its successors,” Stamper wrote in an email Tuesday.
Douglass Mayer, a Hogan spokesman, said the governor disagrees.
“We think they’re wrong,” Mayer said. “They are wrong and if this is the best argument that they can come up with then they need to get a better argument.”
Several Democrats on the House Appropriations Committee Tuesday were skeptical about the plan and said Brinkley and Hogan already have a tool available to previous governors — the Budget Reconciliation and Financing Act .
The once-rare tool, known in legislative circles as the BRFA (pronounced berfuh) has become more commonly used in recent years. Brinkley said that in his 20 years in the legislature there may have only been four years in which such a bill was not used. Hogan said earlier this year that he will not use the tool to complete his proposed budget.
BRFA is a mechanism that belongs to the governor, but lawmakers like it because it gives them the opportunity to affect other policies through amendments. Brinkley said such actions have gotten out of control.
Del. Ben Barnes, D-Anne Arundel and Prince George’s and a member of the committee, questioned the need for the trigger provision on mandated spending.
“Just because you don’t want to use a BRFA doesn’t seem like a good enough reason to pass this wide-sweeping legislation,” Barnes said.
Just an hour before the hearing on the bill, Hogan criticized Democrats for not supporting the measure and sponsoring 85 bills that would create $3.7 billion in new mandated spending over the next four years — $80 million per day — in the unlikely event that all those bills should become law.
Hogan called those bills “reckless actions.”
“Unfortunately it would appear that some members of the General Assembly are choosing to ignore fiscal responsibility altogether,” Hogan said. He later added that he believed recent poll numbers showing his job approval at 70 percent proved that he had a mandate from Maryland residents.
Hogan said lawmakers were “ignoring more than two-thirds of all Marylanders who are supportive of the changes we have instituted and that the state is on the right track and headed in the right direction.”
Democrats quickly countered with a spreadsheet that showed what they said were 32 tax-cut bills sponsored by Republican legislators or Hogan that would cost the state nearly $13.5 billion over five years.
House Speaker Michael Busch rejected Hogan’s polling-based argument, saying it was not the way to govern.
“If we had to govern by every time we thought someone was popular or not popular we would be changing positions every 15 seconds,” Busch said, adding later: “You can’t turn around every 15 seconds and look at public opinion polls.”