Why the State’s Open Budget Law Matters

LAWMAKERS SHOULD QUIT MAKING EXCUSES
AND FOLLOW THE LAW

Two years ago, the Policy Council discovered a provision in state law requiring House and Senate appropriations committees to meet in joint open sessions on the governor’s proposed spending plan.

This would be a break with all known past tradition. For decades, South Carolina lawmakers have cobbled together the state budget with virtually no input from the governor. The state’s spending priorities were largely dictated by members of the General Assembly – and especially by the chairmen and members of the House Ways and Means Committee and the Senate Finance Committee. The governor’s only formal input into the budget process was limited to (a) general guidelines summed up in the State of the State address, and (b) budget vetoes. Governor Sanford began submitting executive budgets in 2003, but these budgets – like Gov. Haley’s executive budget in 2011 – were completely ignored.

Yet state law mandates a detailed budget process, and the governor’s budget is central to that process. Section 11-11-90 is plain and direct: Within five days of the governor’s submission of her budget, the Senate Finance and House Ways and Means Committees “shall sit jointly in open sessions while considering the budget.” These are to be “public hearings,” and the governor has the right to be heard “on all matters coming before the joint committee.” Section 11-11-100 allows that “the General Assembly may increase or decrease items in the budget bill as it may deem to be in the interest of greater economy and efficiency in the public service.” The intent is clear. The governor should draft “the budget,” and the legislature should make adjustments to that document. (Note: Section 11-11-15 transfers the Budget and Control Board’s budget-writing duties to the governor; hence “wherever the phrase ‘State Budget and Control Board’ appears in the context of preparing and submitting budget recommendations to the General Assembly, it means the Governor.”)

That’s the law, and it should be followed. It also happens to be a good law, based on sound constitutional reasoning. When the budget becomes entirely a product of the legislature, as it is currently in South Carolina, it’s no longer a coherent spending plan based on the needs of the state as a whole; it’s rather a collection of spending items, many of them duplicative, meant to benefit local and regional constituencies, without regard for what benefits the entire state. The governor is the one public official in the budget process who is elected by the entire state; he or she is accountable to the Upstate, the Midlands, the Lowcountry, the Pee Dee, and everywhere in between. The law’s requirement that the executive budget be used as the first draft, therefore, makes sense.

Even so, when presented with the law’s requirement to hold these joint open hearings, state lawmakers have usually dismissed it as outdated and unnecessary. It’s unclear why they think so; but whether they view a particular law as outdated and unnecessary is, of course, totally irrelevant. It’s the law. Ordinary citizens don’t have the luxury of deciding which laws are sufficiently relevant to obey; neither do elected officials.

Recently, however, a prominent state lawmaker, in an email to a constituent that was shared with the Policy Council, has offered a slightly more sophisticated two-part argument against abiding by 11-11-90 and 11-11-100.

(1) The current budget process, he says – a process in which subcommittees of the House and Senate appropriations committees write the budget from scratch – is already open and transparent. Any member of the public can attend these subcommittee and committee meetings. Testimony is taken from state agencies on those agencies’ requests, and members of the public are also allowed to testify.

What the lawmaker says is true, technically. These meetings are all open to the public. But there are two problems with this argument:

(a) There are far too many of these subcommittee and committee meetings for any citizen – or indeed for the media – to have a grasp of what the General Assembly proposes doing with that year’s revenue. Sure, a member of the public could hear about how much money the Department of Health and Human Services is asking for, or how much the Department of Corrections says it needs for a new program, but at no time in any of these meetings is the overall state budget considered in a way members of the public can understand. How large is the proposed budget compared to last year’s budget? Are lawmakers increasing or decreasing the governor’s recommendations? How much, if any, will be rebated to taxpayers, and will anything be put towards unfunded liabilities? These big-picture questions are not dealt with at the smaller meetings, which deal instead with particular requests and particular appropriations.

And (b) there are too many of these subcommittee and committee meetings for any one person – even a journalist assigned to the “budget beat” – to attend. During the first week of the 2013 session, for example, there were four Ways and Means subcommittees meeting at the same time – 10:00 a.m.

The current budget process, then, is “open and transparent” only in the narrow sense of those terms. Without the hearings, there is no practical way for a citizen to understand the overall state budget, to query his or her elected officials about budget priorities, or to grasp large-scale trends in state spending of taxpayer dollars.

(2) The law’s requirement of joint open hearings, the lawmaker thinks, would “duplicate what’s already being done twice” and would therefore lengthen the already too-long legislative session. He’s referring to the fact that, currently, House Ways and Means subcommittees formulate their budgets and send them to the full Ways and Means Committee, which then produces its own version of the state budget; then the Senate Finance subcommittees and committee through the same process, producing its own version.

But the joint open hearings, rather than duplicating this process, would abbreviate it. The bulk of the testimonies from state agencies – that is, the really time-consuming part of the budget process – could happen once, not twice, and they could happen with all members of the Senate Finance and House Ways and Means committees present. Not only would this be a more transparent way of budget-writing – currently, most committee members don’t hear most agencies’ budget requests, and the public and media, for reasons already mentioned, don’t hear any of it – it would also be a more efficient use of lawmakers’ time. After all, why should lawmakers be duplicating the subcommittee/testimony process in the first place?

(One reason some lawmakers will not want to forego the subcommittee/testimony process is that that process encourages lobbyists and other rent-seekers to curry favor with members of certain appropriations subcommittees. Those members tend to enjoy the attention and favor resulting from their positions.)

Once the joint committee is done with testimonies, members could take their first shot at amending the governor’s budget – increasing or decreasing specific items – and the final product would be introduced in the House as a bill. By in effect turning two budget processes into one, the joint open hearings would cut down drastically on the time taken to pass a budget – a serious problem in recent years, when lawmakers couldn’t get a budget passed until, in some cases, mid-summer, and consequently had to ignore some vital areas of reform.

These, then, are reasons why the law makes sense – although the most important point is, of course, that it’s the law.

One other objection to following the law may arise. Lawmakers may contend that 11-11-90 and 11-11-100 are “rules of procedure” and that, since the constitution allows both House and Senate to determine the “rules of procedure” of its own chamber (Article 3, Section 12), the legislature can ignore the law code’s budget process. But this law isn’t about one chamber’s rules of procedure; it’s about a process governing the legislative and executive branches. And even if the “constitutional” argument had validity, which it doesn’t, the open budget law would constitute “rules of procedure” set by the legislature itself, not imposed on the House by the Senate or on the Senate by the House. Lawmakers would still be required to follow the law that they themselves passed until either (a) the Supreme Court rule the law unconstitutional or (b) they found enough votes to abolish it.

Fortunately, the law isn’t unconstitutional and it shouldn’t be abolished. It should be followed.