From the Texas Monthly: Showdown with a Strong Governor - The Legislative Budget Board is correct about the limits of the line-item veto—but Governor Abbott has plenty of power

Here's analysis of the legal conflict regarding the legality of Governor Abbott's line item vetoes. At root there seems to be an effort on the part of Abbott to increase the power of the office of the governor. His predecessor attempted to do the same. It seems to be yet another case that will require mediation by the courts - and it involves language we covered in class last week!

The question - as the author describes it - is whether budget riders qualify as items of appropriation.

- Click here for the story.

The disagreement concerns the scope of the governor’s line-item veto authority, which is established in the Texas Constitution, Article 4, Section 14, as follows: “If any bill presented to the Governor contains several items of appropriation he may object to one or more of such items, and approve the other portion of the bill.” A seemingly straightforward statement, but you’ll notice that the document doesn’t specify what it means by “items of appropriation.” As is often the case with the Texas Constitution, there’s no way to retroactively clarify what the people who drafted the document meant by the phrase, or whether they even considered the language carefully; this isn’t exactly the Magna Carta we’re talking about. But since the governor is only allowed to veto “items of appropriations”, the actual meaning of the phrase matters and has been continuously debated.

This round of debate was triggered by Abbott, who forced the question with his line-item vetoes to the 2016-17 budget bill, most of which struck out various budget riders. By doing so, the governor’s office said, he cut almost $300m from the budget as passed by the Lege; he also broke with precedent, by asserting that such riders qualify as “items of appropriation.” The governor’s reasoning is summarized in atwo-page memo that circulated in his office. His argument, basically, is that the budget riders in question are blatant ruses. The Lege’s appropriations for the Facilities Commission, for example, included almost $1bn for Section (e), “Construction of Buildings and Facilities.” About $200m of this $1bn was intended for three specific projects, the details of which were laid out later, in budget riders that Abbott vetoed. According to the Lege, Section (e) would be the “item of appropriation” in that context: the governor could have vetoed the whole billion, or none of it. According to Abbott’s office, this is ridiculous; the budget riders were the functional equivalent of “items of appropriation”, regardless of the Lege’s hijinks: “The Legislature cannot use magic words to make an item veto-proof.”

Unnamed legislators, for obvious reasons, disagreed with Abbott’s interpretation. As a result, Joe Straus and Dan Patrick, on behalf of the House and Senate respectively, asked the Legislative Budget Board to assess Abbott’s vetoes, and send its analysis to Glenn Hegar, the comptroller. Or, if you take Patrick’s word for it, Straus asked the LBB to weigh in, and he stoically accepted their determination to do so. It’s not really important who called in the LBB. The point is that someone in the Lege asked Ursula Parks, the director of the Legislative Budget Board, to weigh in, and so she did. Her memo argues that Abbott’s vetoes exceeded his constitutional authority and represented a departure from precedent and tradition. An “item of appropriation”, she wrote, refers to an item that actually makes an appropriation of funds from the state treasury. The budget riders in dispute merely tell the state agencies what to do with those funds once appropriated; that being the case, per Parks, the governor can’t scribble them out.

Repost from August 3rd: Are some of the governor's line item vetoes invalid? We have a sudden dispute over what the clauses in the Texas Constitution regarding the line item veto authority actually means.

We mentioned the line item veto in class a few times. Its one of the few formal powers of the governor that gives the office some power, but it has some limits. In a previous post I linked to material from the Legislative Budget Board that argued Abbott's vetoes went beyond what the veto is supposed to do.

- Click here for the post.
- Click here for the vetoes.

The Legislative Budget Board issued a lengthy analysis to the comptroller regarding the veto arguing they were unconstitutional - click here for it - and Abbott's office responded to their claims here.

Are some of the governor's line item vetoes invalid? We have a sudden dispute over what the clauses in the Texas Constitution regarding the line item veto authority actually means.

The Legislative Budget Board claims that they are and details their reasoning in a July 21st letter to the Comptroller of Public Accounts Glen Hegar. They argue that the nature of the vetoes went beyond what is authorized by the Texas Constitution and indicates a desire on the part of the governor to expand the powers of the office.

This is an interesting development because ti goes against the commonly argued point that the specific language in the Texas Constitution makes it less likely that there is confusion about what the document means, at least as compared to the relatively short U.S. Constitution. Obviously this is an area where this is not the case.

- Click here for the proclamation listing the line item vetoes.
- Click here for the letter from the LBB challeging the vetoes.

The LBB argues that line item veto authority is limited to appropriations - actual spending - not to "riders" contained in the budget.

Here's a description of the controversy from an article in the Texas Tribune:

At issue are budget "riders" — directions to state agencies that are included in the budget but that do not actually make any appropriations. The LBB cited a 1975 opinion from the Texas Supreme Court that said governors have the power to veto appropriations, but not riders. And it cited an opinion from the Texas attorney general that recalled that court decision and that concluded that a particular rider was not an appropriation. Abbott was the AG at the time.

“Appropriations may be made by the Legislature and may also be vetoed by the Governor; the power of the veto is to prohibit a withdrawal of funds from the Treasury,” Parks wrote. “It does not extend to vetoing the Legislature’s intent and direction.”

The LBB is claiming that the governor is encroaching on legislative power by broadly interpreting the following part of the Texas Constitution - from Article 4 which establishes the power of the governor:

The Texas Constitution, Article 4, Section 14: If any bill presented to the Governor contains several items of appropriation he may object to one or more of such items, and approve the other portion of the bill. In such case he shall append to the bill, at the time of signing it, a statement of the items to which he objects, and no item so objected to shall take effect.

The line item veto only applies to spending, not to content which directs an activity. Some of the vetoed activity did not involve the appropriation of funds. This argument was solidified in a 1975 decision by the Texas Supreme Court - Jessen v Bullock. The governor's office disagrees with the assessment arguing that just because the LBB uses the term "rider" it does not mean that the item is protected from the activities of the governor.

- Click here for the governor's response.

From a Texas Tribune article describing the governor's actions:

By listing specific amounts in descriptive “riders” and as “informational items,” they argue, the budget writers are trying to keep the governor out of the detailed sections of the budget.

"According to all of the relevant legal authorities — including the Texas Supreme Court’s landmark decision in Jessen v. Bullock — the Governor may veto any language in an appropriation bill that (1) sets aside a sum of money (2) for a particular purpose," they wrote. "Each of Governor Abbott’s line-item vetoes of the 84th Legislature’s General Appropriations Act easily satisfies that simple test."

The memo says Abbott’s vetoes fall within his legal reach, that case law proves it, that the LBB’s arguments are not based in law, and that to rule otherwise would threaten the separation of powers between the executive and legislative branches described in the U.S. Constitution.

“In the LBB staff’s view, the only relevant question is whether legislative budget writers intended for an item to be veto-eligible,” the memo reads. “Under that view, the LBB staff — not the Texas Constitution — unilaterally determine which budget items are eligible for veto. That gets the law exactly backwards. The Texas Constitution — not the LBB staff — determines the scope of the Governor’s veto power.”

I'm assuming this conflict will not go away soon. It may well end up back in the Texas Supreme Court which will have to determine where the line between the legislative and executive function is drawn.

For more:

- Showdown with a Strong Governor.
- Patrick Backs Abbott in Line-Item Veto Dispute.
- Analysis: The Kind of Review That Precedes a Makeover.
- Inside the dispute about Gov. Greg Abbott’s budget power.

The governor uses line item veto authority to cut almost $300 million from the Texas Budget.

That amounts to .3% out of a total budget of $209 billion.

Background:

- Abbott wields veto pen to trim nearly $300 million from Texas budget.

For more on the budget itself go to the web site of the Legislative Budget Board.

Making sense of the indictment of the governor

As you have probably heard our governor was indicted on August 15th on charges of "abuse of official capacity" and "coercion of a public servant." The charges were filed in Travis County - where you'll find Austin, the state capital - and the uproar since then was pretty predictable.

Since we will be spending time discussing and following the case, it's not a bad idea to lay out the facts associated with the case - it's background and all that - so we can make sense of all it entails.

Here are few links to stories that should get you up to speed, expect more. This story should have legs.

- From the Austin American Statesman: An Interactive Timeline. This might be the best resource available, especially if you are completely new to this. It starts with the events that led to this particular dispute, though it lacks general context.

- Also from the AAS: Rick Perry indicted for Lehmberg veto threat. Thsi walks through the day of the indictment.

- From the Texas Tribune: Five Things to Know About the Perry Indictment. Among the points made: It will be hard to dismiss as purely partisan, but the prosecution wont be easy.

- The Texas Tribune has links to all its stories related to the indictment here.

- From the Texas Observer: Everything You Need to Know* About Rick Perry’s Newest Scandal (*But were afraid to ask). Another overview of the issues in the case, including commentary on the broader issues associated with it, such as the fact that the Travis County's District Attorneys was investigating possible corruption in awarding contracts to the Concern Prevention and Research Institute of Texas. Critics of the governor argue that he had overseen the awarding of contract to political supporters, which is illegal. Getting rid of the DA would have allowed him to appoint a - presumably friendly - replacement.

Did Governor Perry's line item veto of state funding for the Texas Public Integrity Unit violate the law?

A special investigator has been assigned to find out - and it highlights some of the issues associated with the line item veto. The governor withheld

- Click here for background from the Texas Tribune, and here for background from the Austin American-Statesman.

The story is long and convoluted and stems from long standing animosity between the state legislature and the Travis County District Attorney's Office. The office - usually held by a Democrat since it is in Austin - has been the source of recent investigations of activities of the legislature, which for the past ten years has been dominated by Republicans. The source of the tension should be obvious.

- Click here for the Texas Tribune's section on the Public Integrity Unit.
- Click here on the unit's prosecution of Tom Delay, and here for Delay's promise to go after the DA.

Conveniently enough, the current DA was popped for a DUI during the last legislative session and Republicans demanded her resignation. She didn't, and the governor used that as a reason to cut state funding for the unit. This has been attempted before.

But questions have persisted about whether the line item veto was not only politically motivated, but designed to minimize the ability of the unit to investigate corruption, which is illegal.

The Lubbock Avalanche Journal reports that Perry risks indictment, and offers a harsh assessment of his governorship.

- Click here for the article. 

That shaking you felt this morning wasn’t caused by fracking in a field near you, it was the eruption of stories reporting that Governor Rick Perry could face possible indictment for bribery, coercion, and abuse of official capacity.

Texas Tribune’s John Reynolds reported that a special prosecutor is looking into Perry’s attempts to force Travis County District Attorney Rosemary Lehmberg to resign by way of a veto for state funding of the Travis County DA's Public Integrity Unit. His actions prompted a complaint filed on June 14th from watchdog group, Texans for Public Justice.
Special Prosecutor Mike McCrum was on video this morning discussing that he is "deeply troubled and very concerned about certain aspects of what happened here”.

Why would Rick Perry do this? Two reasons: To replace an elected Democrat with a Republican DA (most likely, one of his friends or campaign donors) and to wipe out the state’s public corruption watchdog, the Travis County DA's Public Integrity Unit, which is presently looking at another incident of Perry’s corrupt administration, his involvement with corporate subsidy programs—the real basis for the “Texas Miracle” that he touts in his road shows, laying the groundwork for his 2016 aspirations.

It’s been no secret that Rick Perry operates a private employment agency for his friends and donors. The most recent being Joe Weber’s appointment to TxDOT and Phil Wilson’s move to the Upper Colorado River Authority. It’s Plutocracy in Action, which you may read about at the Houston Press, here.

Perry’s list of legitimate crimes is long, but it’s been completely ignored, even by the press, whose job is to be the ultimate communicator of truth, the people’s watchdog. Perry cultivates a mysterious and fortuitous inattention through his “pay-to-play” appointments and networking of corporate funders. History will judge him harshly. His legacy will be that of the most corrupt Texas Governor in history, since Pa and Ma Ferguson.