🔒Spending cap resolution seems unlikely

When I retire I plan to write a book about Connecticut's constitutional spending cap. It will discuss how the cap was intended to restrain spending when it was put in the constitution in 1992, how lawmakers have spent the state to the brink of insolvency, and how the legislature created a “Spending Cap Commission” in Dec. 2015 to fix unresolved legal glitches in the cap.

The underlying motifs of law, politics and finance should make for interesting reading, and it will cover several issues.

The initial chapters will discuss points made in previous columns I've written on this topic.

First, the cap has lingered in legal limbo since 1992 because the legislature has ignored the cap's directive to define (with a 60 percent majority) the economic terms necessary to enforce the cap's full implementation.

Second, the legislature's abdication of duty has resulted in two dueling attorney general opinions about the cap: a 1993 opinion saying it is enforceable, and a 2015 opinion saying it is not enforceable. Third, our current budget was approved with a vote inconsistent with the 1993 opinion, but consistent with the 2015 opinion. Accordingly, we do not know if our budget is lawful or not — something that will slowly dawn on bond-rating agencies.

In the next chapters I will explain how, as 2015 ended and 2016 began, it became clear that there were two ways to resolve this conundrum: The issues could be litigated and the courts could decide which attorney general opinion is correct and the state would proceed accordingly; or the legislature could fix the glitch by defining the measuring terms with the 60 percent majority — which is where the Spending Cap Commission comes in. 

The Commission has been created to draft “proposed definitions” of the measuring terms for purposes of “the constitution of the state.” The “proposed definitions” would then be taken to the full state House and Senate where a 60 percent majority vote would be necessary to fix the problem once and for all. The bill creating the Commission states that the Commission will terminate when it “submits its proposed definitions or by Dec. 1, 2016, whichever is later,” so at least in theory it could last forever if it takes that long to draft definitions.

The Commission could go one of two ways. It could be a success, approving definitions that will win the bipartisan support necessary to achieve a 60 percent majority vote in the House and Senate. This would resolve the legal uncertainty and bring us into compliance with the constitution. On the other hand, the Commission could prove to be a ruse — a device designed to create the illusion that lawmakers take the constitution seriously, and to appease voters in an election year — especially the 80 percent who voted to approve the cap in 1992 (which includes me).

Unfortunately, all indications are the Commission will be a ruse. Sixty-seven percent of the Commission's members will be appointed by the current majority party, and 33 percent by the minority party — so the majority party's appointees will control the drafting of the “proposed definitions,” which reduces (perhaps to near zero) the chances that their proposed definitions would ever get enough minority party votes to reach 60 percent in the House and Senate.

This lopsided uni-partisan configuration is obvious enough to suggest it is intentional, and it should anger voters and lawmakers regardless of party affiliation.  Majorities and minorities will inevitably end up trading places over time; and the wisdom baked into the constitutional cap's 60 percent requirement is the stability inherent in bipartisanship.

I understand that politics is a game played with a hard ball. But this is serious business and we need stewards who are able to see beyond the short-term horizons on which they seem fixated.

Nevertheless, I want my book to end on a positive note, and to increase the likelihood of that happening, I have two suggestions for the legislature — one is serious and the other is 67 percent serious and 33 percent fanciful.

During this legislative session lawmakers should make two operational changes to the Spending Cap Commission.

First, its membership should be restructured to include equal numbers from each political party — something that would greatly enhance the likelihood that any proposed definitions they draft would reach the 60 percent majority when taken to the House and Senate.

Second, while the lifespan of the commission can remain as is, I would add a provision stating that if the work is not done by Dec. 1, the commission would be sequestered with enough food for a week.

Of course, for this technique to work, both sides must really want to get a deal done — and I am not sure that is the case in Connecticut.

John M. Horak has practiced law at Reid and Riege P.C. in Hartford since 1980. His opinions are his own.

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