There was nothing sectional about the problems besetting legislatures. Nor was the trust in the governor's veto limited to a few states. Looking across to the Pacific states, the situation in California was not unlike that of other states when a constitutional convention was called in 1878. As reported in one study:

In many of its aspects the political organization of the state was so like that of other states in the Union during the period. . . . The two major parties had their separate organizations which struggled for power, prestige, and spoils, but were strikingly similar in the principles they enunciated. . . . The legislators were of especially low caliber. J.S. Hittell [author of "History of San Francisco", 1878] said that the governors had usually been men without any very high moral or intellectual character, but that they were so far above the predominant level of the legislators, and were held in such direct and undivided responsibility by public opinion that the veto power entrusted to them had been of inestimable value in the protection of the community against legislative fraud and recklessness. 39

The theme during this period of rambunctious political life appeared to be that politicians as a class were venal but that governors tended to be less venal than legislators. Thus, being the lesser of evils, governors ought to serve as guardians of the public purse against avaricious legislators and the depredations of private economic interests. A review of the constitutional convention records for Nebraska (1875), Missouri (1875), and California (1879), during this period suggests that the item veto clauses were included in their respective constitutions with little discussion and no apparent opposition. The bulk of the discussion on the general topic of the governor's veto revolved around the question of how much time, if any, the governor ought to have after the close of the legislative session to consider bills presented to him.

In most states the legislature passed hundreds of bills in the closing days of a session. Governors had only a few days to consider bills and veto them. The two extreme choices were unappealing: giving the governor too much power (allowing his "pocket veto" to serve as an absolute veto) or too little (allowing bills unsigned within the constitutional timeframe to become law). Constitutional conventions searched for intermediate solutions to balance executive and legislative prerogatives.

In the debate over budgetary restraint during this period, the item veto was only one small part of a much larger issue over the emerging role of the governor. The item veto cannot be fully understood apart from related constitutional questions: the fate of vetoes following adjournment, the legislative vote required to override vetoes, restrictions on special or local legislation, and the limitation of one subject per bill. An isolated discussion of the item veto necessarily distorts the political struggle during this period. To combat "logrolling," Florida's constitution of 1868 limited the number of subjects that could be included in a bill: "Each law enacted in the Legislature shall embrace but one subject and matter properly connected therewith...

"40

It is difficult to judge the effectiveness of the item veto during the post-Civil War period or, in fact, during any period. Some governors exercised the power while other governors rarely used it.

39 Carl Brent Swisher, Motivation and Political Technique in the California Constitutional Convention, 1878-1879, at 9 (1969 ed.).

40 Green v. Rawls, 122 So.2d 10, 13 (Fla. 1960).

But the sheer number of vetoes, regular or item, tell us relatively little about the relationship between the governor and the legislature. The political history and culture of each state is different and these subtle factors may, upon reflection, be the critical elements determining how often the item veto will be used.

At one end of the spectrum is the state of Nebraska, which added the item veto to its constitution in 1875. Once granted, however, no governor used this authority for twenty years, until 1895.41 Historically, Nebraska governors have been parsimonious in using their veto power.

New York governors, on the other hand, used the item veto immediately and often. Governor Samuel Tilden, upon taking office in 1875, used the veto power generally and the item veto in particular with vehemence.42 It turned out to be a major tool in his battle against corruption by the Tweed Ring and was a factor in his rapid rise to national prominence and eventually a Presidential nomination. Tilden recognized that the item veto could seriously disrupt executive-legislative relations. He voiced his concerns in an annual message to the legislature:

The amendment to the Constitution, first brought into operation at the last session, imposing on the Governor the obligation to revise every item of appropriation, works a change in official practice, amounting to a revolution. Hitherto, as the appropriations were embraced in bills that had to be accepted or rejected, as a whole, the items have been in effect, withdrawn from the action of the Governor. The responsibility now devolved on him is very laborious and difficult. It tends perhaps, to work some change in the customary relations of the departments. In ordinary legislation, it is stretching the function of the executive veto too far, to apply it to every case in which the Governor, if a member of the Senate or Assembly, would vote against a bill. There seems to be a disposition to hold the Executive to the extreme of accountability in respect to appropriations. This tendency may be carried so far as to disturb the constitutional equilibrium of the executive and legislative forces. Not desiring to amplify my official powers, nor disposed to shrink from any just responsibility, the occasion seems fit to invite a frank understanding, to avow my own wish for, and to seek from you a cordial cooperation on this subject, for the good of our common constituents.43

A review of the use of the item veto in Georgia, the first state to have the item veto, is instructive, It holds the honor of also being the first state to have a governor use the item veto, an event which occurred in 1869.44 This first use, however, did not signal a pattern for the future. The next two item vetoes were invoked in 1871 and 1873 and then "we discover no item vetoes [in Georgia] during the next twenty-one years." 45

GOOD GOVERNMENT ERA: 1880-1899

By 1880, there was definitely a national "reform" campaign underway for better governmental institutions at the local, state, and federal levels. This campaign took many forms and involved the efforts of political leaders for more than a generation. The consequence was civil service reform, the growth of independent commis

41 Knute Emil Carlson, "The Exercise of the Veto Power in Nebraska," Nebraska History and Political Science Series No. 12 (1917), at 11.

42 Prescott and Zimmerman, supra note 32, provide a detailed review of the use of the item veto during its early life in New York state. See Vol. I, at 173-223.

43 Id. at 179-80.

44 Prescott, supra note 26, at 7.

45 Id. at 19, 22.

sions and boards to carry out governmental functions, and a strengthening of local chief executives. The aspiration of budget experts and scientific managers was to keep politics out of administration. Scholars have wondered "how much the good government people, commonly called 'goo-goos,' were motivated by a desire for honesty in politics and how much by a patrician disdain for the low types, frequently of Irish background, who manned the machines." 46

Separating politics from administration

While reformers from the business world and universities became interested in the administration of public affairs, there was little being written that could be considered systematic or theoretical. Good will by reformers was in abundance; theory was a scarce commodity. Insofar as there was any coherent intellectual debate during this period it was between those who regarded public administration as an extension of politics and those of a younger generation who viewed public administration as a business-like activity with much the same norms as the private sector.

These general movements profoundly influenced the relationship of the governor to the legislature. To a greater extent, governors were expected to be administrative as well as political leaders. But governors had few institutional resources. There was little, if any, staff to support them. Agencies and state commissions tended to be independent fiefdoms with legislative protectors. It was not surprising, therefore, that governors turned toward constitutional alternatives as a first means to gain some advantage in their confrontations with the legislature. The veto power was viewed favorably by reformers eager to enhance the governor's power.

As state constitutions were being revised in the 1880's and 1890's there was a general movement towards extending gubernatorial terms beyond the two-year limit then prevalent. Reformers also wanted to lengthen the period of time after adjournment when governors could consider and veto bills and to make it more difficult for legislators to override the governor's veto.

Financing state governments was also undergoing change. States needed more money as they began to assume greater responsibilities in the health, education, and transportation fields. The raising of revenues and the expenditure of funds had followed separate tracks and lacked coordination. Hence, many states began to look at the governor as the final authority for keeping expenditures within the limits of revenues. A number of states enacted constitutional amendments severely restricting the state's right to incur indebtedness.

During this period, states had no discernible financial system. Appropriations were available for specific time periods, revenues were often earmarked for specific purposes, and the documentation accompanying appropriation requests tended to be idiosyncratic and not particularly useful. One study concluded:

46 David Shannon, Twentieth Century America: The Progressive Era 9 (1969).

The legislature had no accurate, complete, or single statement of needs, and its consideration of proposed appropriations was ineffective. The growing power of the governor to veto items of appropriations was relied upon to meet this situation.47

Debate over the governor's veto power occurred at two levels. The first level was constitutional in character: the separation of powers doctrine, executive-legislative relations, and the details of procedures. The second level was primarily political and concerned subtle questions of legislative strategies and the impact of item vetoes on reform objectives.

The item-veto concept in the 1880s and 1890s became a minor element in larger reform packages being promoted. Discussion of the item veto was rather perfunctory at state constitutional conventions, with numerous references to the notion that it was proving "successful" in other states. Reformers found it difficult to pinpoint the actual benefits of the item veto.

Restricting legislatures

The debate on the item veto sometimes produced contradictory positions. For example, reformers fought against "omnibus" bills and legislative "logrolling." They objected to "lump sum" appropriations that denied the governor the opportunity to veto individual items. But reformers also opposed bills that were "too detailed" and too restrictive on executive discretion. Legislators should confine themselves to broad policy questions, it was argued, and keep out of administrative details.

The statutes of Illinois allowed mayors to exercise an item veto at least as early as 1872.48 The governor received item-veto authority as proposed by the General Assembly in 1883 and ratified as a constitutional amendment in 1884.49 Illinois governors refrained from invoking the item veto: "It is a remarkable fact that although the power to disapprove items in appropriation bills had been granted to the governor in 1884, only one instance of its use occurred before 1903, namely, in 1899." 50

While governors of Illinois may have been shy about using the veto power generally and the item veto in particular, that was not the case in New York state. New York governors employed the item veto often. Alonzo Cornell began his tenure in 1880 by exercising his veto authority with vigor. According to one account, Governor Cornell "vetoed an unprecedented 180 items in the Supply Bill of 1880, amounting to $936,683. The largest items vetoed were appropriated funds for penal, correctional, and other institutions including national guard armories. A host of small items for legislative expenses, together with a goodly number of illegal 'gratuities,' also were vetoed." 51

Cornell's successor, Grover Cleveland, also relied heavily upon the veto to keep the legislature "honest" and to restrain expenditures. In his brief two-year term (he resigned as governor on Janu

47 Dodd, supra note 12, at 437.

48 Revised Statutes of the State of Illinois, 1874, at 216, § 46 (statute was approved April 10, 1872).

49 1 Annotated Statutes of the State of Illinois, 1986, at 144.

50 Niels H. Debel, "The Veto Power of the Governor of Illinois," University of Illinois Studies in the Social Sciences, Vol. VI, at 120 (1917).

51 Prescott and Zimmerman, supra note 32, Vol. I, at 203.

ary 6, 1885), Cleveland vetoed four single appropriation bills and a total of 150 items from two annual supply bills. 52 Cleveland's experience with the veto at the municipal level (as Mayor of Buffalo) and at the state level no doubt influenced him favorably toward its use at the national level. He employed the veto more than any other President save Franklin Roosevelt.53 The generally positive attitude expressed by reformers during this period toward the item veto undoutbedly reflected its frequent use by New York governors. In some respects, Grover Cleveland owed his reputation as an effective administrator to his willingness to employ the veto. Also, New York state was not only the largest state in the Union but provided leadership for administrative reforms. It was customary to extrapolate national trends from New York's experience.

Most states with the item veto fall somewhere between Illinois and New York. The state of Pennsylvania is an important case study for understanding the governor's item veto during this period. The Pennsylvania Constitutional Convention of 1872 adopted without debate a provision for an item veto.54 Governors of Pennsylvania, like governors of New York, employed the executive veto with considerable vigor. In 1893, for instance, the governor of Pennsylvania invoked the general veto on 72 of 443 bills.55 With respect to the item veto, Pennsylvania governors began early to employ it on appropriation bills. On occasion, they carried this authority further by reducing the amount fixed by the legislature. Enter the courts

The practice of item-reduction followed by several Pennsylvania governors after 1873 finally resulted in a court challenge at the close of the century. In 1899 the governor of Pennsylvania received an appropriation bill containing a two-year grant of $11 million for public schools. That amount was a single item, although it earmarked smaller sums for three specific purposes. Instead of approving or disapproving the $11 million, the governor approved $10 million and disapproved the balance. The constitution did not explicitly authorize the governor to reduce items. The veto message acknowledged that the governor's authority "to disapprove part of an item is doubted, but several of my predecessors in office have established precedents by withholding their approval from part of an item and approving other parts of the same item." 56

In 1901 the Pennsylvania judiciary upheld the governor's action. The court reviewed the erosion of the governor's veto power power over the years as a result of "omnibus" bills, "log rolling," and "riders" on appropriation bills-all of which meant "coercing the executive to approve obnoxious legislation or bring the wheels of the government to a stop for want of funds." 57 The court noted

52 Id. at 209.

53 During Grover Cleveland's two non-consecutive terms as President, he vetoed at total of 584 bills, seven of which were overridden.

54 Pennsylvania Constitutional Convention, Debates of the Convention (1873), Vol. 5, at 238. The item veto became Art. IV, § 16 of the 1873 constitution.

55 Jacob Tanger, Harold F. Alderfer, and M. Nelson McGeary, Pennsylvania Government: State and Local 109 (1950).

56 Commonwealth v. Barnett, 199 Pa. 161, 167 (1901).

57 Id. at 172.