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TABLE 2. VOTES REQUIRED TO OVERRIDE AN ITEM VETO IN THE STATES-Continued

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Sources: National Conference of State Legislatures, "Legislative Budget Procedures in the 50 States," Legislative Finance Paper #21 (January 1983), pp. 5-7; U.S. Advisory Commission on Intergovernmental Relations, staff compilations based on 1984 survey of executive and legislative fiscal directors.

CHAPTER II. THE APPLICABILITY OF STATE PRACTICES TO THE FEDERAL SITUATION

The Congress is unique in its constitutional power and responsibility for the purse. The framers of the federal constitution fixed responsibility for budget decisions clearly and distinctly in the Congress. This legislative prerogative is a central tenet in the distribution and separation of federal powers. As Madison wrote in Federalist 58, "This power of the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure." State constitutions, however, limit the legislature's access to the pockets of the people. Constitutional provisions restrict the power of state legislatures to appropriate funds and place constraints on the authorization and appropriation proc

esses.

The structure of appropriations bills is a matter left exclusively to Congress. By contrast, state constitutions and statutes include specifications for the style and format of appropriation bills. To prevent the erosion of the governor's item-veto authority, the courts have given additional guidance to state legislatures regarding the manner in which they draft appropriation bills. Court decisions have encouraged line-itemization. At the national level, both Congress and the President prefer lump-sum funding to accommodate the need for executive discretion. To protect its interests, Congress relies to a large extent on nonstatutory controls, specifying in such places as the committee report the allocation of lump-sum amounts. Unless Congress substantially altered the structure of appropriation bills, an item veto would give the President little additional control over individual projects, programs, or activities. This is the point made by the second section of this chapter.

The third section discusses existing Presidential powers that serve as substitutes for the item veto. Budget execution is essentially an executive function. The Administration requires flexibility to implement the budget over the course of the fiscal year. The President therefore has some authority to transfer, reprogram, and impound funds. Existing authority can be used to do much of what the item veto is designed to do, while preserving the present balance between legislative and executive powers.

THE LEGISLATIVE ROLE IN BUDGET DECISIONS

The role of state legislatures in budget decisions differs dramatically from the responsibility assigned to the U.S. Congress. The constitutional grants of power are fundamentally different, as are the authorization-appropriation processes and the relationships between legislators and the Executive. Speaking generally, state leg.

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islatures are restricted to a much greater degree in their operations.

Constitutional grants of power

The U.S. Constitution states that "No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." 1 There are very few limitations on the use of this power. Congress may not increase or decrease the compensation of a President during his term in office 2 and may not diminish the compensation of members of the federal judiciary.3 Congress may not use its funding power to establish a religion. By and large, however, the Spending Power can be used broadly to achieve social, military, and economic goals.

In contrast, state constitutions have a strong anti-legislature flavor. Limitations are placed on state borrowing, requirements exist for balanced budgets, and prohibitions are directed against private, special, and local laws. State constitutions contain detailed prohibitions on the enactment of laws fixing the rate of interest: remitting fines, penalties, or forfeitures; exempting property from taxation; providing for the management of public schools; altering the salaries of public officers during their term in office, and other matters (see Appendix C-4). Moreover, state constitutions contain specific limitations that affect the authorization-appropriation proc

ess.

Authorization-appropriation process

The U.S. Constitution contains no restrictions on the procedures used by Congress to authorize and appropriate funds. Appropriation and authorization bills are handled solely by House and Senate rules as a part of the internal procedures of Congress. The Constitution does not mention Appropriations Committees nor does it distinguish between authorizations and appropriations. Congress may appropriate by legislative committees, by tax committees, or by appropriations committees. In fact, it was not until the Civil War that Congress established Appropriations Committees. Before 1865, the House Ways and Means Committee handled both appropriations bills and revenues measures. Before 1867, the Senate Finance Committee had jurisdiction over both measures. If Congress chooses to do so, it can place substantive legislation in appropriations bills and allow authorization committees to fund programs directly through the use of "backdoor spending." These matters are left exclusively to the established House and Senate rules and to the interpretation and execution of those rules. 5

State constitutions are filled with prescriptions and proscriptions on the authorization-appropriation process. Many states direct that general appropriations bills shall embrace nothing but appropria

1 U.S. Const., Art. I, § 9.

2 Id. at Art. II, § 1.

3 Id. at Art. III, § 1.

4 Id. at Amend. I; Flast v. Cohen, 392 U.S. 83, 104-05 (1968). However, plaintiffs who challenge federal assistance to religious institutions may be unable to establish standing as a litigant; Valley Forge College v. Americans United, 454 U.S. 464 (1982).

5 For evolution of House and Senate rules regarding_appropriation bills, see Louis Fisher, "The Authorization-Appropriation Process in Congress: Formal Rules and Informal Practices," 20 Cath. U.L. Rev. 51 (1979).

tions. The effect is to prohibit the addition of substantive legislation in appropriation bills. State legislatures are not supposed to use appropriation bills to create, amend, or repeal substantive legislation. General appropriation bills are restricted to specific subject areas, while the other appropriations are to be made by separate bills, each embracing but one subject. As a means of restricting "logrolling" by the legislature, other provisions in state constitutions require that each authorization bill be limited to a single subject. This requirement on "one subject per bill" also helps protect the governor's item-veto authority. (See Appendices C-5 and C-6.) The U.S. Constitution does not contain directions or requirements that affect the style and form of appropriation bills. Executive-legislative relations

In the Southern Confederacy as well as in some of the states, the item veto was associated with various procedures used to protect the executive budget from legislative excesses. The Provisional Constitution of the Confederacy prohibited the Confederate Congress from appropriating money "unless it be asked for by the President or some one of the heads of the Departments, except for the purpose of paying its own expenses and contingencies." The Permanent Constitution of the Confederacy was modified to require a two-thirds majority in both Houses to appropriate money unless the amounts were requested by department heads and submitted to Congress by the President, except for paying legislative expenses and contingencies and paying claims decided by a judicial tribunal. (See speech by Robert H. Smith in Appendix B.)

Some of the state constitutions also adopted extraordinary measures to protect the integrity of the governor's budget. Under the Maryland constitution, the governor initiates virtually all appropriations and presents them to the legislature in his budget bill. The legislature may reduce, but may not increase, the governor's estimates for the executive branch: "the General Assembly may amend the [governor's] bill by increasing or diminishing the items therein relating to the General Assembly, and by increasing or diminishing the items therein relating to the judiciary, but except as hereinbefore specified, may not alter the said bill except to strike out or reduce items therein. . . .6

The Nebraska constitutional convention of 1919-1920 proposed a procedure, adopted by the people, that prohibited the legislature from exceeding the governor's budget recommendations unless each house mustered a three-fifths vote. The constitution was later amended to provide for a unicameral legislature and to increase from three-fifths to two-thirds the majority needed to exceed the governor's recommendation. As amended again in 1972, the Nebraska constitution returned to the three-fifths margin: "No appropriations shall be made in excess of the recommendation contained in such budget including any amendment the Governor may make thereto unless by three-fifths vote of the Legislature. ...

6 Maryland constitution, Art. III, § 52, ¶6.

8

Elmen v. State Board of Equalization and Assessment, 231 N.W. 772, 776 (Neb. 1930).

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8 State ex rel. Meyer v. State Board of Equalization and Assessment, 176 N.W. 2d 920, 923 (Neb. 1970).

9 Nebraska constitution, Art. IV, § 7.

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