The Democrat-controlled General Assembly went into overdrive at the end of last week to make sure several pieces of legislation Republican Gov. Larry Hogan might veto would get to his desk early enough that the House and Senate can attempt an override vote before they adjourn on April 9. There’s a policy reason for that because in an election year (unless there is a special session of the General Assembly) bills that are vetoed after the legislature leaves town aren’t subject to an override vote the following January. It’s now or never. There’s a partisan motivation, too; veto fights were good politics the last time a Republican was governor. So what is Governor Hogan to do? Here are some of the highlights of the veto-bait legislation and our take on how Mr. Hogan should handle them.
Three of the pieces of legislation relate to public sector unions, and they were all opposed by the Hogan administration during bill hearings.
Two of them (HB 811/ SB819 and HB 1017/ SB677) are couched as a pre-emptive response to what many are expecting to be a blow to public sector unions from the Supreme Court. The justices are due to rule soon on a case that could outlaw so-called “fair share” provisions that require employees who decline to join a union to pay a fee to cover the costs of collective bargaining done on their behalf. (Union dues, which cover other things, including political activity, are higher.) These two bills, which relate to state workers and teachers, respectively, are designed to help unions communicate with non-members and to market themselves to new employees by giving them regular access to the workers’ contact information — including home addresses and phone numbers and, in the case of teachers, personal cell phone numbers.
The third bill (HB 864/SB 654) deals with what happens when the state and a union can’t come to an agreement in negotiations. Last year, the American Federation of State, County and Municipal Employees and the state were deadlocked on a number of provisions as a Dec. 31 deadline approached, and the state took the position that after that point, it could unilaterally institute some of the new work rules proposals it wanted. This legislation stipulates that in a situation like that, the previous memorandum of understanding between the state and a union remains in effect until a new one is approved by both sides.
What Governor Hogan should do: The contact information bills are a close call. We sympathize with the unions’ need to communicate with the workers they represent, but the Hogan administration also raised valid concerns about the current desire by the public to exercise greater control over who gets their personal information. The bill allows workers to opt out of receiving communication from the union but not to opt out of being included in the database. If it did, we would support it, but as is, we think a veto is reasonable. The memorandum of understanding bill, by contrast, strikes us as a simple matter of fairness. Neither side should be able to get something they want in a negotiation simply by running out the clock. Mr. Hogan should let it become law.
In the years since Republicans have been seeking to end what they call the “death tax,” Maryland has periodically adjusted its estate tax in reaction to changes enacted by Congress. During the George W. Bush administration, Maryland de-coupled from the federal estate tax, but starting in 2014, the state began a process of gradually syncing the level of exemptions under state law to those in the federal tax code. Federal law at the time exempted estates of under $5 million, and Maryland has been inching its exemption up so that it would re-couple with the federal level as of 2019. (Currently, we’re up to $4 million.) But the Trump administration’s tax cuts again monkeyed with the federal exemption, doubling it to more than $11 million. HB 308/SB646 makes a number of changes to Maryland’s estate tax, but the crux of it is to de-couple (again) so that Maryland’s exemption in 2019 is what it would have been if the federal estate tax hadn’t changed.
What Governor Hogan should do: Figuring out how to deal with the downstream consequences of the Trump tax cuts has been a major preoccupation of this legislative session, with Governor Hogan and Democratic leaders working to mitigate unintended state tax increases as a result of the new law. But this is different from the income tax side effects from the Trump tax cuts; in that case, many Marylanders would have paid more in state taxes because of the federal change than they would have otherwise. That, we agree, needed to be ameliorated. The estate tax, though, is a case in which Maryland would be effectively forced to cut its taxes (by more than $500 million through fiscal 2021) if it did nothing. This bill preserves the status quo of before the federal tax cuts, and Mr. Hogan should allow it to become law.
Automatic voter registration
Two years ago, Maryland expanded the number of state agencies that can help residents register to vote to include the Motor Vehicle Administration, the Maryland Health Benefits Exchange, local departments of social services, and the Mobility Certification Office in the Maryland Transit Administration. House Bill 152/Senate Bill 1048 makes registration automatic for those who interact with any of those agencies and are eligible to vote, unless they opt out. It would also help ensure that state voter records are up to date with respect to voters’ addresses and other information.
What Governor Hogan should do: He should sign this bill. Several other states have enacted legislation like this, with support often crossing party lines. A generation ago, the Motor Voter bill made it easy for people to register to vote through state departments of motor vehicles, but that only got us so far. If we want to take the next step to expand voter participation, we not only need to create more points of contact (after all, far fewer young people are getting their driver’s licenses these days) but to change the question from asking whether you want to register to vote to asking whether you don’t. Lawmakers rejected this idea two years ago, but the new version addresses some previous concerns by giving individuals the chance to opt out at the point of contact. Politically, this one should be a no-brainer for the governor. Siding against legislation to expand voter participation is positively Trumpish.
Filling administration vacancies
Last year, Governor Hogan got in a fight with the legislature over two of his nominees to fill vacancies in his cabinet, Wendi Peters and Dennis Schrader, who were serving as the secretaries of planning and health, respectively. Both had been appointed during the interim in 2016, and Mr. Hogan forwarded both names for confirmation when the legislature returned in 2017. The Executive Nominations Committee voted not to recommend Ms. Peters, and Mr. Hogan withdrew both from consideration before the full Senate voted on her or the committee voted on Mr. Schrader. Worried that Mr. Hogan would re-nominate them when the legislature adjourned, the General Assembly stipulated that any cabinet secretaries nominated during the interim and not acted on in the 2017 session could not be paid as of the start of the new fiscal year. Mr. Hogan re-appointed both anyway, and they served without pay for some months. A circuit judge eventually decided that they had to be paid, but the Court of Appeals put that ruling on hold pending an appeal. Meanwhile, Mr. Hogan moved both into other positions in their agencies that do not require confirmation.
There was a lot of politics wrapped up in that kerfuffle, but also some constitutional questions. Senate Bill 687 seeks to resolve the simplest among them. As it stands, a governor could theoretically nominate a cabinet secretary during the legislative interim, forward his or her name to the Senate on the first day of the General Assembly session, and withdraw it immediately. The person could then serve on an acting basis until the end of the legislative session, at which point the governor could nominate him or her again. SB 687 prohibits that.
What Governor Hogan should do: This bill closes what’s a pretty clear-cut loophole in the constitution. Certain nominations are required to be made with the advice and consent of the Senate, and governors shouldn’t be able to circumvent that process. Moreover, this bill is not going to animate any but the most partisan of voters on either side. Mr. Hogan should allow it to become law.
The biggie among the veto-bait bills is one that makes a series of reforms to the way Maryland doles out school construction money to local jurisdictions. What’s controversial about it is an amendment tacked onto the bill in the House that would strip the Board of Public Works (a body that consists of the governor, comptroller and treasurer) of its role in approving projects.
What Governor Hogan should do: There’s a lot of good policy in this bill related to increasing the equity and adequacy of the state’s support for school construction, and in the wake of school shootings in Florida and St. Mary’s County, the bill includes some cash for school safety upgrades, too. We’d like to see all that become law. But we also appreciate the view of Democrats in the General Assembly that Comptroller Peter Franchot (abetted by Governor Hogan) has hijacked the process to substitute his judgment for that of local officials and state professionals. But, as we explained in detail last week, we don’t like the idea of exempting hundreds of millions in state spending from the Board of Public Works. He should veto this one, but the question is what he can do to prevent an override on the most politically charged of all these bills. The only hope he has of doing that is to use his veto message to acknowledge Democrats’ legitimate concerns about the process and to voice support for the primacy of local decision making in prioritizing school capital projects. With Sen. Nathaniel Oaks’ resignation, Mr. Hogan only needs to pick off one vote. That approach at least gives him a chance.
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