Изображения страниц
PDF
EPUB

CHAPTER I. ITEM VETO AS A STATE REFORM: ITS ORIGIN
AND EVOLUTION

The veto power at the state level has passed through a number of stages. After a period of initial distrust toward executive power, states gradually relied on the governor's veto to check legislative spending. Constitutional language was adopted to give governors the general veto power, then the power to strike items within a bill, and finally the power to reduce individual items. This use of the veto to constrain legislative action did not take place in a vacuum. It was accompanied by other constitutional amendments, such as provisions to limit each legislative bill to a single subject, 4 to restrict special and local legislation, to prohibit legislation in appropriation bills, to limit state borrowing, to require the executive to propose a balanced budget, and to require the legislative to enact a balanced budget.

These constitutional amendments did more than delegate additional power and responsibility to governors. The veto power, especially the item veto, transferred new duties to the courts. Inevitable ambiguities in constitutional language regarding item-veto authority required state judges to adjudicate delicate and complex questions of public funding. A growing number of court cases have tried to balance the governor's right to veto items with the legislature's right to specify the conditions under which appropriations shall be spent.

GROWTH OF THE VETO POWER

By the time of America's break with England, the colonies had associated the veto power with abuses by royal governors and the King of England. Vetoes by the Crown led the list of justifications offered in the Declaration of Independence: "He has refused his Assent to Laws, the most wholesome and necessary for the public good." After hostilities began with England, few states were willing to entrust executives with a veto power. Between 1776 and 1787, only three states adopted a veto: South Carolina, New York, and Massachusetts. The temporary constitution of South Carolina of 1776 gave its president an absolute veto, but the president was a member of the general assembly and selected by the general assembly and a legislative council consisting of thirteen legislators. There was no separate executive branch. Two years later, when the state constitution was revised to provide for a governor, the veto power was eliminated.1

18 William F. Swindler, Sources and Documents of United States Constitutions 464, 471-72 (1973).

(1)

The general veto power

The New York constitution of 1777 established a council of revision composed of the governor, the chancellor, and the judges of the supreme court. The council had ten days to return any bill to the legislature, with its objections in writing. A two-thirds vote of all members of each House was needed to make the bill a law.2 The Massachusetts constitution of 1780 allowed the governor to disapprove a bill within five days, with his objections. A two-thirds. majority of the members of each House could override the veto.

The Federal Constitution gave the President a veto subject to a two-thirds override vote of both Houses. Within a few years three other states added a veto power to their constitutions: Georgia in 1789, Pennsylvania in 1790, and New Hampshire in 1792. The other original states resisted the move to a veto for the governor until Connecticut revised its constitution in 1818 to provide for a qualified (subject to override) veto. In 1821 New York transferred the veto power from the council of revision to the governor, and in 1844 New Jersey adopted a qualified veto.

Some of the newly-admitted states gave the governor a qualified veto: Kentucky in 1791 and Vermont in 1793 (a veto power shared between governor and council). But the Tennessee constitution of 1796 and the Ohio constitution of 1802 denied the governor the power to veto bills. No other state gave the governor a veto power until 1812, a lapse of time that partly reflected the suspicion of Jeffersonian Republicans toward centralized power. The people of Ohio, for example, "were intensely partisan followers of the new Republican party under the leadership of Thomas Jefferson. They did not share the admiration of the 'framers' of 1787 for the British constitution, nor were they impressed with the example in the federal constitution of a monarchical veto power.'

[ocr errors]

3

With the admission of Louisiana in 1812, the pattern was to grant the governor a qualified veto. The general acceptance of the veto power was accelerated by the decision of Congress to grant territorial governors this power. After the Civil War, the veto power spread to some of the original states. The Maryland constitution of 1867 added the veto power, as did the reconstruction constitutions of South Carolina in 1868, Tennessee in 1870, and Virginia in 1870. The governor also gained a veto power in West Virginia in 1872, in Delaware in 1893, in Ohio in 1903, and in Rhode Island in 1909. That left North Carolina as the only state which still denied the governor the veto power. Today, every state constitution with the exception of North Carolina allows the governor to exercise a veto over bills passed by the legislature.

Although the executive veto now extends to forty-nine of the fifty states, there remain significant variations in the procedures used by governors to invoke the veto power and by legislatures to

2 For a history of the council of revision and of the governor's veto power in New York, see Frank W. Prescott and Joseph F. Zimmerman, "The Council of Revision and the Veto of Legislation in New York State: 1777-1822," Occasional Paper No. 1, State University of New York (1973).

3 John A. Fairlie, "The Veto Power of that State Governor," 11 Am. Pol. Sci. Rev. 473, 476 (1917).

4 Alonzo H. Tuttle, "History of the Executive Veto in the Ohio Constitution," 2 Ohio St. L. J. 99, 101 (1936).

override. As a general rule, when a governor disapproves a bill, he refuses to sign and returns the bill to the legislature with his objections. The margin of legislative votes necessary to override a gubernatorial veto differs from one state to the next. It may require a simple majority of legislators voting, a majority of the full membership, a two-thirds vote, or a three-fifths majority.

After the Civil War, states began to assign the governor some form of "item veto" over legislation, usually confined to appropriation bills. Some state constitutions were later amended to allow the governor not only to approve or disapprove an appropriation item but to reduce its amount. Another modification was the "amendatory veto," which permitted the governor to return any bill (not just appropriation bills) to the legislature with his proposals for change. The following sections discuss these variations: the item veto, the item-reduction veto, and the amendatory veto.

The item veto

The first instance of "item veto" authority occurred when the Confederate States adopted their provisional Constitution on February 8, 1861.5 When the permanent Constitution of the Confederacy was adopted the following month, it contained substantially the same provision. The Confederate Constitution followed the general veto power of the Federal Constitution. In addition, however, there was the following provision: "The President may approve any appropriation and disapprove any other appropriation in the same bill. In such case he shall, in signing the bill, designate the appropriations disapproved; and shall return a copy of such appropriations, with his objections, to the House in which the bill shall have originated; and the same proceedings shall then be had as in the case of other bills disapproved by the President."6 Although the President of the Confederacy, Jefferson Davis, was empowered to veto "items" of an appropriation bill, he never exercised that authority.7

The item veto was introduced in the Confederate Constitution as part of a plan to adapt English budget principles to American conditions, with the goal of securing greater cooperation between the executive and the legislature:

The leaders of the South greatly admired the English governmental system but they were not blind imitators, for they did not wish to set up a parliamentary type of government in the Confederate States. Hence, it was provided that proposals for expenditure should originate with the President while Congress, with two unimportant exceptions, was forbidden to initiate appropriations unless they were authorized by a two-thirds vote of both houses. To defend his budget estimates, the President was given the item veto. These provisions were intended to be a compromise between English financial procedure and prevailing American practice.

The period immediately following the Civil War was one in which a number of state constitutions were written and amended.

5 Provisional Constitution of the Confederate States of America, Article I, Section 5. This document is reproduced in 1 Jefferson Davis, Rise and Fall of the Confederate Government 640-73 (1958 ed.), Appendix K.

6 Constitution of the Confederate States of America, Art. I, § 7. Reproduced in Henry Steele Commager, ed., Documents of American History 378 (1973).

"Edward Campbell Mason, The Veto Power 136 n.1 (1890).

8 Roger H. Wells, "The Item Veto and State Budget Reform," 18 Am. Pol. Sci. Rev. 782 (1924). (See also appendix B.)

This activity was stimulated by three factors: (1) the requirement that the former states of the Confederacy write acceptable constitutions as a prerequisite for readmission into the Union, (2) the admission of new Western states in the Union, and (3) the movement by older states to "modernize" their original constitutions.

For a variety of reasons to be discussed shortly, the item veto became a popular feature for constitutional writers to consider. One state after another adopted the item veto to enhance the governor's power in relationship to the legislature. From what may appear at first glance to be a relatively simple concept has emerged a dizzying array of permutations. Even when constitutional language is similar in state constitutions, judicial interpretations and executive customs produce a power with ever-changing boundaries. Congress, for its part, entertained ambivalent feeling about the item veto, approving it in the constitutions of the territories, but denying it to the President.

9

In 1986, the constitutions of forty-three states provide for an item veto (Appendix A). For the most part, this veto is limited to "lineitems" in appropriation bills. But the definition of a line-item as well as the applicability of this authority to different categories of bills has been the subject of continuing controversy, with resolution generally being sought in the judicial arena.

The spread of item veto authority among the states was largely a post-Civil War phenomena. As one study noted: "Between 1870 and 1890 this reform spread like wild-fire through states anxious to use executive power to restrain legislative depredations on the public purse. Within a half century of the Civil War, 36 states had given their governors the item veto. . . ."

The item-reduction veto

" 10

Just as the general veto seemed too blunt an instrument, forcing the governor to accept or reject a bill in whole, so did the item-veto seem too inflexible in some states. Rather than require the governor to strike an entire item, a few state constitutions were amended to permit the reduction of an item. Ten state constitutions explicitly allow the governor to reduce items. The constitutional language appears in Appendix C-2. In some states, as in Pennsylvania, courts discovered an implied power to reduce dollar amounts in appropriation bills.11 This issue provoked a number of court cases and will be discussed later in the study.

The amendatory veto

The amendatory veto differs from the item veto in that it normally permits a governor to "condition" his approval of an enacted bill by returning it to the legislature with suggestions for change. He may present "amendments" for the consideration of legislators. First adopted by Alabama in 1901,12 today seven states have con

O Congress, in enacting organic laws for territories, granted governors the power to veto items in appropriation bills: Hawaii, 31 Stat. 149, sec. 149, sec. 49 (1900); Alaska, 37 Stat. 516, sec. 14 (1912); the Philippine Islands, 39 Stat. 551, sec. 19 (1916); Puerto Rico, 39 Stat. 961, sec. 34 (1917); Guam 64 Stat. 389, sec. 19 (1950); and the Virgin Islands, 68 Stat. 502, sec. 9(d) (1954).

10 Gerald Benjamin, "The Diffusion of the Governor's Veto Power," 55 State Gov't 99, 102 (1982) (footnote omitted).

11 Commonwealth v. Barnett, 199 Pa. 161 (1901). 12 Walter F. Dodd, State Government 191 (1928).

« ПредыдущаяПродолжить »