This decision allowed the governor to veto conditions or qualifications on an appropriation. Florida amended its constitution in 1968 to overturn the decision. The new language prohibited the governor from vetoing any qualification or restriction without also vetoing the appropriation item related to it.172

RESURGENT LEGISLATURES: 1970-1984

At both a state and national level, the 1970s were a time of legislative reassertion. Long-held assumptions about the supposedly innate benefits of executive authority and control were severely shaken. Moreover, the reapportionment decisions of the 1960's and 1970's helped to revitalize state legislatures. Under the pressure of federal courts, states were in the process of sweeping away the vestiges of rural dominance and malapportionment.

Legislative reforms

State constitutions were rewritten to provide for longer legislative sessions. In the early 1940's, only four state legislatures (New Jersey, New York, Rhode Island, and South Carolina) met annually. By 1976 that number had jumped to forty-two. 173 Also, legislatures were allowed to stay in session for longer periods of time "as the limitations on the number of days per year a legislature could meet were relaxed in many states.' ." 174 The longer sessions allowed important legislation to be passed earlier in the session and thus made available for formal and informal amendatory processes.

State legislatures became more professional. To an increasing extent the position of lawmaker was considered a full-time job and state legislators were compensated accordingly. Legislatures, particularly their committees, began to acquire their own professional staffs. State legislatures developed fiscal and budgetary expertise to reduce their dependence on executive agency budget analysis. Billdrafting services, in existence since the turn of the century, were expanded. More sophisticated information systems became available for legislators. Reforms were adopted to expedite legislative business: cut-off dates for the introduction of bills, limits on the number of bills that a legislator could introduce, and deadlines for committee hearings and floor action.175 These changes were intended to avoid the traditional logjam at the end of a legislative session. 176

The legislative calendar was adjusted to permit closer scrutiny of general vetoes and item vetoes. California was one of the early states to experiment with a special veto session. By 1984, at least four other legislatures (Kansas, Illinois, Virginia, and Wisconsin) regularly held veto sessions. "States which had gone decades without the legislative override of a gubernatorial veto now consider and accomplish such overrides regularly." 177 Instead of adjourn

172 Brown v. Firestone, 382 So.2d 654, 665 (Fla. 1980).

173 Herbert L. Wiltsee, "The State Legislatures," in The Book of the States, 1976-1977, at 33. 174 William T. Pound, "The State Legislatures," in The Book of the States, 1984-1985, at 79. 175 Id.

176 Karl T. Kurtz, "The State Legislatures," in The Book of the States, 1974-1975, at 55, 5758. 177 Pound, supra note 174, at 80.

ing sine die and allowing governors to exercise an absolute veto through the use of pocket vetoes, some legislatures simply recess subject to the call of the leadership. 178

Because of budgetary strife in the early 1980s, states found it necessary to make periodic adjustments in revenue estimates and spending. Whereas in previous years the legislatures would have depended on governors and executive officials to make these interim adjustments, special sessions were called to deal with issues through the regular legislative process. 179 The result of these reforms was a greater exertion of legislative authority in budgeting, program oversight, and review of administrative rules. Improvements in fiscal analysis allowed many legislatures to take more active role in budget development, expenditure oversight and revenue estimates. In such states as Colorado, New Mexico, and Texas, legislators were actively involved in developing the state budget. 180 Balanced budgets and impoundment

Some of the governors justified item vetoes by calling attention to statutory or constitutional requirements for a balanced budget. Striking appropriation items was defended as a necessary step in maintaining a balance between outlays and anticipated revenues. In a message to the Pennsylvania legislature on July 11, 1983, Governor Dick Thornburgh explained his opposition to a general appropriation bill: "Since the Constitution requires that I enact a balanced budget, I am required by law to reduce the expenditures contained in this bill." To meet what he considered to be his constitutional responsibilities, he reduced a number of items of appropriation, including those supporting the operations of the General Assembly.181 In 1984 a New Jersey court noted that the item veto "serves the governmental need to have a balanced budget in place at the start of the fiscal year." 182

Other courts were reluctant to be drawn into the dispute about whether certain executive actions were necessary to pursue a balanced budget. Said a New York court in 1977: "Assuming it were feasible to convert a courtroom into a super-auditing office to receive and criticize the budget estimates of a State with an $11 billion budget, the idea is not only a practical monstrosity but would duplicate exactly what the Legislature and the Governor do together, in harmony or in conflict, most often in conflict, for several months of each year.' " 183

Not only did governors veto appropriation items as a way of keeping the budget in balance, even after appropriation bills were enacted they insisted that the requirement of a balanced budget justified the withholding of funds as the fiscal year unfolded. In 1978 a Massachusetts court acknowledged that the governor had the constitutional prerogative to spend less than the full amount of an appropriation, provided he could achieve the objectives of the

178 Id.

179 Id.

180 Id. at 82.

181 Message to the Senate of the Commonwealth of Pennsylvania regarding Senate Bill No. 527 (July 11, 1983).

182 Karcher v. Kean, 479, A.2d 403, 416 (N.J. 1984).

183 Wein v. Carey, 41 N.Y.2d 498, 505 (1977).

underlying legislation. The constitutional requirement to execute the laws required that the governor have authority to use discretion in expending funds. 184 The governor had to be allowed "some discretion to exercise his judgment not to spend money in a wasteful fashion, provided that he has determined reasonably that such a decision will not compromise the achievement of underlying legislative purposes and goals. 185

However, in 1980 a New York court ruled that the governor had no authority to impound mandated appropriations, even to achieve a balanced budget. The court pointed out that the governor's authority was limited to proposing a balanced budget. At no time, the court said, had it suggested that once a budget plan is proposed and enacted "revenues and expenditures must match throughout the fiscal year.' "186 There was a fundamental difference between proposing and maintaining a balanced budget. If the executive branch was under no duty to reduce expenditures or raise revenues to maintain a balance as the year progressed, "it can hardly possess implied power unilaterally to 'reduce' a lawful appropriation." 187 If the legislature added funds to the governor's budget, as it did in this case, the governor had authority to exercise his item veto. But he chose not to do so.188 As a result of the court's decision, Governor Carey proceeded to exercise his item-veto power much more vigorously than had been the practice in prior decades.

189

Some state constitutions give the governor explicit authority to withhold funds to maintain a balanced budget. In 1945, Missouri rewrote its constitution to provide the following procedure: "The governor may control the rate at which any appropriation is expended during the period of the appropriation by allotment or other means, and may reduce the expenditures of the state or any of its agencies below their appropriations whenever the actual revenues are less than the revenue estimates upon which the appropriations were based." 190

The caseload escalates

The period from 1970 to 1984 marked an extraordinary upsurge in the number of court cases on the item veto. Over these fifteen years there were about fifty decisions, compared to about sixtythree for the entire previous seventy-seven years from 1893 to 1969. Instead of legal issues being ironed out by 1970, the item veto continued to provoke activity in the courts. Almost half of the more than fifty decisions concerned the stubborn issue of whether governors may veto conditions on appropriation items. Are conditions "tied to" appropriations or can they be "severed" while leaving the appropriation intact?

190 Missouri Constitution, Art. IV, § 27. This language remains in the current constitution, following the 1945 amendment.

Another large batch of cases involved the reach of the item veto to nonappropriation bills, to substantive legislation, and to measures that have the effect of blunting his item-veto authority. The complexities of state financing methods, combined with the infusion of federal funds, have raised a host of new and troublesome legal issues.

A third category of cases examines the governor's ability to apply the item veto to the legislative branch, to the judiciary, and to certain offices within the executive branch. This area raises issues of separation of powers, comity between the branches, and the recognition that state constitutions give to specific executive officials. A final category of cases deals with a number of procedural issues that govern the item veto.

Conditions and severability

Some of the conventional beliefs about vetoing conditions on appropriation bills were severely tested in the 1970s and 1980s. State judges were beginning to rethink traditional efforts to categorize 'affirmative" and "negative" item vetoes. For example, in 1977 a Washington court held that the governor's fourteen attempted vetoes of items and sections in a bill were invalid because the language disapproved reached a result unintended by the legislature. The item vetoes were thus "affirmative" and "creative" in their effect. 191

A year later a Wisconsin court decided that the governor could strike provisos or conditions on an appropriation and that the language vetoed was severable from the appropriation bill "so long as the net result of the partial veto is a complete, entire, and workable bill which the legislature itself could have passed in the first instance." " 192 However, a dissenting justice challenged the formula that courts had used for decades to discriminate between conditions that could and could not be severed from an appropriation bill. He noted an effort by one governor to exercise his item-veto authority by striking the digit "2" from a $25 million bonding authorization, and that "[e]ven this may not mark the limits of the use of the power." Advisors to a recent governor were reported to have considered deleting the first letter "t" from the word "thereafter" in order to alter the effective date of a liquor tax increase.193 The judge continued:

Only the limitations of one's imagination fix the outer limits of the exercise of the partial veto power by incision or deletion by a creative person. At some point this creative negative constitutes the enacting of legislation by one person, and at precisely that point the governor invades the exclusive power of the legislature to make laws.

In the scheme of our constitution, the governor is to review the laws and not to write them. He is not, by careful and ingenious deletions, to effectively "write with his eraser" and to devise new bills which will become law unless disapproved by two-thirds of the legislators who are elected by the people of the state.

The majority is rightfully wary of the elusive tests enunciated in some other jurisdictions. To hold that the exercise of the partial veto power may not have an "affirmative," "positive" or "creative" effect on legislation, or that the veto may not change the "meaning" or "policy" of a bill, as some courts elsewhere have done,

191 Washington Ass'n of Apt. Ass'ns v. Evans, 88 Wash.2d 563 (1977). 192 State ex rel. Kleczka v. Conta, 264 N.W.2d 539, 555 (Wis. 1978). 193 Id. at 557 (Hansen, J., concurring in part, dissenting in part).

would be to involve this court in disingenuous semantic games. While these tests may be appealing in the abstract, they are unworkable in practice. Every veto may be perceived in affirmative or negative terms, and as either conforming to or defying the general legislative intent, depending upon the observer's perspective. These tests are inescapably subjective. Without an objective point of reference, this court would be reduced to deciding cases upon its subjective assessment of the respective policies espoused by the legislature and the executive, an unseemly result which would foster uncertainty in the legislative process. More importantly, such a result would defeat its own purpose; the judicial department may no more assume the proper functions of the legislature, or interfere with their discharge, than may the governor. 194

This dissenting opinion was later cited by a Washington court in 1984 when it upheld the governor's veto of a section and all references in the bill to the section. However, the court announced that it was abandoning the affirmative/negative test which it had used to scrutinize item vetoes. The court regarded the test as unworkable, subjective, and an intrusion by the judiciary into the legislative branch. In the future, said the court, the check for item vetoes would be legislative overrides. 195 A dissenting judge remarked that the majority's decision to abandon the distinction between affirmative and negative vetoes stemmed "in large part from the fact that the Governor's veto here was clearly affirmative in nature." 196

In other decisions from 1970 to 1984, state judges wrestled with the application of item vetoes to conditions, provisos, and qualifications placed in appropriation bills. A Florida case in 1970 concerned the governor's claim that the legislature had written the general appropriation bill in such a way as to preclude his exercise of item-veto authority. The court disagreed. The state constitution prohibited the governor from vetoing "any qualification or restriction without also vetoing the appropriation to which it relates." The court announced that the legislature "may not validly so draft a general appropriations bill as to unduly and unreasonably" prevent the exercise of the executive power to veto specific appropriations. In this particular instance, the court sanctioned the legislature's action. Appropriations, it said, "may constitutionally be made contingent upon matters or events reasonably related to the subject of the appropriation, but may not be made to depend upon entirely unrelated events." 197 These vague standards of "unduly and unreasonably" interfering with the governor's item-veto authority, or conditioning appropriations "upon matters or events reasonably related to the subject of appropriations, but . . . not upon entirely unrelated events," simply sets the stage for future court rulings.

In 1971 the Iowa judiciary upheld the governor's veto of a section that prohibited the movement of permanent state offices. The court theorized that the section was not a condition limiting the expenditure of appropriated funds. 198 In 1973 a Delaware court decided that the governor's item veto applies only to items of appropriations and not to conditions. The state contitution limits the power to disapproving "any item or items of any bill making appropria

194 Id. at 557-58.

195 Washington Federation of State Employees v. State, 682 P.2d 869 (Wash. 1984). 196 Id. at 877 (Rosellini, J., dissenting).

197 In re Opinion to the Governor, 239 So.2d 1, 9 (Fla. 1970).

198 State ex rel. Turner v. Iowa State Highway Com'n, 186 N.W.2d 141 (Iowa 1971).