Hogan v. Frosh

In the State House, there are all kinds of back channel ways to communicate effectively. There are lounges where lawmakers can meet face to face. There are student pages who will pass around a note for you and cell phones, of course, to digitally convey your words by text or email. And then there’s the state budget. Nothing quite makes a governor’s point more than to zero out a preferred program or spending item.

That’s essentially what Gov. Larry Hogan did when he released a budget last week that not only reduced Attorney General Brian Frosh’s spending but specifically pruned several programs that Mr. Frosh has championed. One would allow him to expand prosecutions related to the opioid epidemic. Another would have established an office to help ensure all sexual assault DNA evidence kits are eventually tested. And the third was likely the loudest message of them all: The governor zeroed out funding to allow Mr. Frosh to sue the federal government on behalf of the citizens of Maryland.

Modest cuts to state budgets have been standard procedure — the attorney general’s office estimates its total spending has been trimmed by about 2 percent annually since the governor took office — but singling out these highly visible programs? That’s not bean counting, that’s payback counting. Governor Hogan made it clear last year that he was against giving Attorney General Frosh the authority to decide whether he should sue President Donald Trump over the DACA rollback, over payments his real estate empire has accrued from foreign governments since he was elected (as a violation of the Constitution’s Emoluments Clause), over the travel bans, all of which (and many more for a running total of 20) Mr. Frosh has targeted for federal lawsuits, usually joining fellow Blue State attorneys general from around the country.

Mr. Hogan objected, not because he sought to forbid lawsuits against the Trump administration (he has actually directed Mr. Frosh to initiate a few of them), but because he wanted to have final say over whether one was filed — as Maryland governors have in the past. The Democratic majority in the legislature refused to follow the governor’s wishes and passed the Maryland Defense Act by lopsided margins over the objections of GOP members. Mr. Frosh was not only cheered by voters in a state that doesn’t care much for the current president, but he raised his own political profile immeasurably.

The governor’s office says that the AG’s budget is being treated like that of any other agency at a time of limited state resources and that Mr. Frosh is welcome to finance his federal lawsuits by using funds for his office’s Consumer Protection Division, but that’s a bit of a red herring. While it’s true that that particular office is buoyed by settlements, court-ordered or otherwise, that’s the division’s sole source of funding, and an unreliable one at that. There is no extra $1 million worth of civil payouts sitting in the halls of the AG’s office in Baltimore. That makes Mr. Frosh’s counter-claim — that shifting money from consumer protection to federal litigation will shortchange Marylanders — a valid point.

Still, here’s the bottom line: The governor’s budget cuts are so modest in the context of a $40 billion-plus spending plan — involving a few lawyers here and a few administrative staff there — that it’s difficult to believe sympathetic lawmakers won’t ultimately restore what’s needed. That’s right. At some point during the budget negotiations in the next two months, the House and Senate will put language in the budget bill fencing off the funds and, where possible, restoring existing mandates. Or, to put it another way: Legislators will send their own message right back to the governor.

Does all that sound like an enormous waste of time? Welcome to Annapolis. The governor can claim he was being fiscally prudent. Lawmakers and Mr. Frosh can say they are standing up to President Trump while the governor was trying to protect him. Everybody gets to play to their political base, and nothing much changes at the end of the day.

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