Line Item Vetoes: Legal or Not?

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My Wesbter's Dictionary defines an appropriation as "money officially authorized to be paid from a public treasury."

If only it were that simple. Expect a heated debate in the near future as to whether Governor Arnold Schwarzenegger's decision last week to line-item veto almost $500 million in spending was within his powers as chief executive... or not.

The latest salvo comes today, as the office of Legislative Counsel says Schwarzenegger overstepped his authority.

Signed by deputy legislative counsel Michael Beaver, the four page analysis (read it here) concludes that the spending reductions in the budget revision were not "appropriations" as defined either in the California Constitution or by legal precdent.

The opinion was requested by, and obtained by this reporter, from the office of Assembly Speaker Karen Bass. It seems to dovetail with the accusations of another Democratic legislator who solicited outside counsel for an opinion.

But both stand in sharp contrast to the opinion of the governor's own Department of Finance, represented in a posting to the Fox & Hounds blog last week by chief counsel Jennifer Rockwell. Rockwell asserts that the spending instructions in the budget revision are indeed "appropriations," and thus well within the purview of the governor.

We won't go too deep into legalese here, but it's helpful to place the arguments of the Legislative Counsel (vetoes not legal) and the Department of Finance (vetoes legal) side by side. It's also worth noting that the entire debate only exists because there became a need to revise an existing state budget, the one enacted back in February; that's not something that happens very often.

Without further ado...

Leg Counsel: "..to be considered an appropriation, a provision of a statute must set aside moneys for payment of a claim, make an appropriation of moneys from the public treasury, or add an additional amount to the funds already provided for."

Dept of Finance: "[to be an appropriation] all that is needed is a clear intent by the Legislature to provide that a certain sum of money – and no more than that sum – may be spent out of a particular fund on a particular activity."

Dept of Finance: "...the amendment to the budget bill which was sent to the governor this week did contain appropriations. Indeed at the front of this same bill is a statement by the legislature's own legal counsel that it is 'An act… relating to the State Budget, making an appropriation therefore.'"

Leg Counsel: "...the fact that provisions of AB 1 are related to existing appropriations previously authorized by the Budget Act of 2009 does not mean that those provisions are themselves items of appropriation..."

It's also always fun when attorneys with different opinions reference the same legal precedent interpreted in completely different ways. The focus of this squabble early on appears to be a California Supreme Court case from 1923 known as Wood v. Riley.

DOF counsel Rockwell says the case makes it clear that the Legislature has limited authority over stopping executive vetoes. "You can’t circumvent the state constitution with fancy language," she writes as her concluding comment.

Leg Counsel's Beaver, on the other hand, says the Wood case focuses on an instance where adding money to an existing appropriation, not subtracting it, was also construed as an appropriation. The legal effect of a budget reduction, he writes, "is not to grant authority to a state officer to expend a specified sum, but to lessen that authority."

If you've got the feeling that all of this is going to end up in front of a state judge, you're not alone. The Capitol is buzzing with folks pondering whether the vetoes will be challenged, especially by one or more interest groups representing those who depend on the services in question.

But perhaps the more important political bottom line is this: the Legislature can return from its recess and work to find some other option for the state programs in question. Granted, the odds of a bipartisan 'No-Tax-Painless-Cut Plan B' are long, but there are opportunities for another bite at the apple.

Then again, there are also a lot of judges in Sacramento Superior Court who could weigh in, too.

[Update 3:55 pm The governor's own legal affairs secretary, Andrea Lynn Holder, has released her own statement this afternoon concurring with the DOF position and saying the Guv's veto power "is clear and broad in the Constitution." Meantime, Assemblymember John Perez (D-LA) phoned to say that he, too, asked for and received the Leg Counsel opinion today. He says should a lawsuit challenging the vetoes be filed, he and other legislators would likely file an amicus brief in favor of the plaintiff(s).]

[4:55 pm: And there's this from Speaker Bass: "This opinion underscores what I have been saying all along....Governor Schwarzenegger’s hand-picked line item vetoes are as unconstitutional as they are unconscionable."]

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About John Myers

John Myers is senior editor of KQED's new California Politics & Government Desk. He has covered California politics for most of the past two decades, serving previously as Sacramento bureau chief for KQED News and most recently as political editor for KXTV News10 (ABC) in Sacramento. In 2014, he was named one of the nation's top statehouse reporters by The Washington Post. Follow him on Twitter @johnmyers.

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