Defund push misfires

by Kenneth Girardin |  | NY Torch

New York Gov. Andrew Cuomo and legislative leaders applaud after Cuomo signed New York's Secure Ammunition and Firearms Enforcement Act into law during a ceremony in the Red Room at the Capitol on Tuesday, Jan. 15, 2013, in Albany, N.Y. From left are Senate co-leader Jeffrey Klein, D-Bronx, Assembly Speaker Sheldon Silver, D-Manhattan, Lt. Gov. Robert Duffy, behind Cuomo, and Senate Democratic Leader Andrea Stewart-Cousins, D-Yonkers. Jumping out ahead of Washington, New York enacted the nation's toughest gun restrictions Tuesday and the first since the Connecticut school shooting, including an expanded assault-weapon ban and mandatory background checks for buying ammunition. (AP Photo/Mike Groll)Calls by gun control opponents to “defund” New York’s SAFE Act gun-control law have become standard fare during the state budget process—but the goal is completely impractical.

The 39-page SAFE Act was enacted at the onset of the 2013 legislative session pursuant to the governor’s “message of necessity,” which allowed it to come to a vote before most legislators had a chance to read or digest it. The law’s most controversial provisions were an expansion of the state’s “assault weapons” ban, creation of an ammunition purchase database, and a prohibition on placing more than seven bullets in a gun magazine.

In each of the five state budgets considered since the SAFE Act took effect, opponents have criticized spending that they believe is directly supporting the law.

Governor Andrew Cuomo requested $35.9 million for SAFE Act enforcement as part of his fiscal 2014 executive budget proposal, released shortly after the law was signed. Senate Republicans rejected it in their one-house budget, and the funding was given a less-explicit label in the final deal.

A year later, two GOP state senators alleged that the funds had again been “hidden” in the fiscal 2015 budget. “We were told there was no funding for it,” one told the New York Post. “If there was, I would have voted against it.”

Assemblyman David DiPietro (R-East Aurora), stoked the controversy again yesterday in a video posted on Facebook, saying he would vote against two budget bills because they contain two provisions that, in his view, fund the SAFE Act:

  • $4.6M reappropriated in the Capital Projects budget for the ammunition database; and
  • $3.2M in new money in the State Operations budget for “state police enforcement.”

There’s no reason to believe these items aren’t related to the SAFE Act—but taking them away won’t do anything to stop the executive branch from enforcing the law.

The “defund” push is reminiscent of congressional Republican efforts, when President Barack Obama was still in the White House, to “defund” the Affordable Care Act. The ACA included tax credits for people buying insurance on exchanges and federal “risk corridor” subsidies to insurance plans, both of which Congress had the power to take away to destabilize the system. The risk-corridor payments, estimated at $2.5 billion, were ultimately blocked through the budget process, rendering a number of health plans—including New York’s own Health Republic insurance co-op—insolvent.

But the simple truth is there’s no way to actually “defund” a duly enacted law such as the SAFE Act. Even if both measures identified by DiPietro were removed, nothing would stop the governor from using, say, the $214 million requested by the state police for “criminal activities investigation” for SAFE Act implementation and enforcement.

The fungibility of state money was illustrated in a recent Times Union article examining the number of people who work on the governor’s staff without having their pay funded through the Executive Chamber budget. The Department of Criminal Justice Services, State Police and Office of Technology Services together have budgets totaling $1.5 billion in state funds alone during the current fiscal year, much of which is not explicitly restricted and could be used for SAFE Act purposes. Creative uses of other department appropriations could potentially provide even more resources.

Here’s perhaps the best proof of the flexibility the governor has in state spending: for all the uproar among gun rights advocates over the SAFE Act ammunition database, no one has ever identified a provision of the budget which funds the state’s separate rifle registration system, which had tallied more than 44,000 records by 2015 without ever once being mentioned in the governor’s budget requests.

Republican senators have confused things by denying explicit SAFE Act funding appears in the budget. That’s not incorrect—but it doesn’t address the basic premise that the law, as structured, can’t be blocked simply by deleting lines in a spending bill.

Questions over state funding also bypass the fact that several components of the law pertain to the penal code, which is enforced by every police officer in the state, not just state troopers. Even if the state government were completely shut down, county, town, city and village police officers would still enforce the SAFE Act.

Unless the state budget was amended to explicitly prohibit the use of state funds to enforce a law—and perhaps not even then—there’s no stopping a governor from doing just that.

Groups opposed to the SAFE Act need to stop kidding themselves and confront the basic fact that, until they can muster the votes to repeal or amend it, the law isn’t going anywhere—and attempts to “defund” it are a waste of time.

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- Kenneth Girardin is the Communications and Marketing Manager at the Empire Center for Public Policy.