Three cases involved legislative practices that had the effect of blunting the governor's item-veto authority. In 1935 a Ohio court struck down a statutory procedure that allowed the Controlling Board of Ohio to use transfer authority to replenish items vetoed by the governor. Under the constitution, those items were void unless repassed by the legislature with a three-fifths majority in each house. The legislature could not vest in the Controlling Board the power to essentially override the governor's veto and bring back to life an appropriation item that had been absolutely voided.1 146

In 1936 a Wisconsin court ruled that the governor could not exercise his item-veto authority on a revenue bill that contained a revolving fund, even if the creation of this fund by the legislature impaired his item-veto power. The court held that the constitution limited the item-veto authority to appropriation bills. The paragraphs deleted by the governor were revenue-raising meaures, and the court treated taxation and appropriation as "more nearly antonyms than synonyms." 147 The court admitted that the creation of a revolving fund could impair "to some extent the power of the governor effectively to reach objectionable appropriations by excercise of the partial veto. If this is an evil, however, it cannot be remedied by giving a distorted meaning to the term 'appropriation bill.'” 148

In the third case involving a possible blunting of item-veto authority, a New York court warned that the legislature could not take an appropriation bill submitted by the governor and substitute lump sums in place of his proposed line items. The “whole spirit" of the constitution, the court said, was "against lump sum appropriations and in favor of appropriations showing the items of expenditure." 149 This represented the announcement of a general principle, however. It would prove much more difficult to apply this principle to concrete cases.

Four other cases from 1930 to 1949 concerned procedures for item vetoes. In 1930 a Nebraska court examined the state constitution's requirement that the legislature could increase the governor's budget estimates only by securing a three-fifths majority in each House. In the face of such supermajorities, the governor was not allowed to exercise his item veto. The court held that the threefifths majority could be on final passage of the bill and not necessarily on the amendment proposing an increase.150 This issue would be further refined by the Nebraska judiciary in 1970.151

In 1935 a North Dakota court reviewed the state constitution's requirement that bills be presented to the governor at least three days before the legislature adjourns. It denied the claim that this requirement was not meant to be applied to appropriation bills. Such an interpretation, said the court, would severely restrict the opportunity for item vetoes.152 On the other hand, in 1935 an

146 State ex rel. Public Utilities Commission v. Controlling Board, 130 Ohio St. 127 (1935). 147 State ex rel. Finnegan v. Dammann, 220 Wis. 143, 148 (1936).

148 Id. at 149.

149 People v. Tremaine, 281 N.Y. 1, 7 (1939).

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

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

152 State ex rel. Sandaker v. Olson, 65 N.D. 561 (1935).

Oklahoma court decided that the item-veto authority applied only to appropriation bills. For other bills the governor had to choose between approval or total disapproval. 153

Finally, in 1943 a Louisiana court received a case which raised the question of its authority to exercise appellate jurisdiction in cases where the amount in dispute was less than the statutory minimum of $2,000. The governor had vetoed two items of $1,500. In an effort to satisfy the statutory threshold, the two claimants consolidated their cases. The court held that this could not be done. 154

THE MATURE EXECUTIVE: 1950-1969

The decades of the 1950s and 1960s were years favorable to the extension of executive authority, both in relation to the legislature and to the administrative bureaucracy. Democracy functioned best, according to most scholars and opinion leaders, when the executive was permitted to be dominant over the legislature. Legislatures were generally perceived as inefficient and parochial. Governors, on the other hand, were portrayed as the dynamic factor in the state political systems. These perceptions had political consequences. Over time, certain institutional advantages slipped away from the legislature and found a home with the governor.

Governor as legislative leader

The veto power reflected these shifts of power. Writing in 1950, Frank Prescott concluded: "constitutionally, the governor's veto power today is at its zenith and the trend is toward strengthening it." 155 It was a rare occurrence for a veto, either regular or item, to be overriden by the legislature. The veto power, while generally viewed as a very powerful weapon in the hands of the governor, nonetheless tended to be invoked on a lower percentage of bills than had been true in prior decades. Much of the explanation is to be found in different methods of communicating the governor's dissatisfaction with specific legislation.

By the 1960s, governors were expected to be legislative leaders. A number of factors contributed to their ability to function in this role. For one thing, they began to acquire sufficient staff support so that individuals could be assigned full-time liaison with legislative leaders and committee chairmen. Problems associated with legislation were more likely to be discovered early in the legislative process rather than being first sighted when there was no alternative to a veto. Informal processes to resolve executive-legislative differences over legislation often superseded the more formal and rigid veto procedure.

At a lower level of visibility, and often by extraconstitutional means, one state after another began to permit legislatures to recall measures from the governor's desk before being signed, per

153 McAlester v. Oklahoma Tax Commission, 174 Okla. 322 (1935).

154 State ex rel. Nunez v. Baynard, 203 La. 711 (1943). In 1948 an Arizona court dealt with a case that indirectly involved the governor's valid use of an item veto in a general appropriation bill; Millett v. Frohmiller, 66 Ariz. 339 (1948). A 1949 South Carolina decision ruled that after the governor had vetoed certain items, the remaining bill was a valid act; Parker v. Bates, 56 S.E.2d 723 (S.C. 1949).

155 Frank W. Prescott, "The Executive Veto in American States," 3 West. Pol. Q. 107, 112 (1950).

mitting changes by the legislature and even permanent withdrawal. This procedure can amount, in practice, to an amendatory veto. In the words of one account, it "creates a negotiating situation in which, under threat of a full veto, the legislature can recall a bill and make changes in it desired by the governor, thus allowing him to exercise de facto amendatory power.'

156

Most negotiating procedures between governors and legislators are informal and exist because both sides find them useful. Texas, where the governor's veto power "has been one of the most valuable means of gubernatorial control of public policy," 157 is probably typical of the development of informal negotiating procedures between the governor and the legislature prior to the passage of a bill. Fred Gantt reported in 1964:

vance....

The threat of veto apparently has been used less in the past two decades than formerly because it has been superseded by attempts to work out problems in adWhen Beauford Jester came into office [1947] he expanded [Coke] Stevenson's tactics by using messages to call attention informally to sections of bills to which he objected. The implication was that the bill would be vetoed unless these sections were removed and revised, and the technique frequently worked. Jester assigned a staff member to check all bills for technical errors as well as for policy considerations. The Stevenson-Jester tactics have apparently become accepted practice, for in numerous cases differences of opinion are compromised prior to passage of bills. Such informal discussion has proved helpful both to sponsors of bills and to governors in reducing the number of vetoes. 158

Bill-recall procedures

Other states relied on various forms of the amendatory veto, either allowing the governor to return a bill with recommendations for change or permitting the legislature to recall a bill from the governor's desk. The latter procedure is described by Prescott and Zimmerman in their study on New York State:

A little publicized facet of gubernatorial-legislative cooperation involves the recall of bills from the Governor's desk by the Assembly and the Senate. . . . [D]ata on the number of recalls makes clear that recalls were much more common in the post1960 period than in the 1932 to 1959 period.... [M]ost of these measures (92.8%) were recalled only once from the Governor's desk. Of the 1,401 bills recalled in the period 1932 to 1973, a total of 618 were subsequently returned to the Governor who approved the acts. Four hundred and fifty-one of the returned measures had been amended by the Legislature to meet the Governor's objections. 159

The veto situation in New York state is possibly the most interesting because its governors have traditionally used the formal veto power to a greater extent than governors in other states. What Prescott and Zimmerman describe is actually a variation on the item-veto concept that is never recorded in the official records. Why has the recall of bills become so important in New York? Once again, Prescott and Zimmerman suggest an answer:

The vast bulk of these acts were recalled at the request of the Governor's Counsel to give the Governor additional time to study the bills. The State Constitution stipulates that a bill becomes law if the Governor fails to sign or veto it within ten days, Sundays excepted, of receiving it during the regular or special session of the legislature. The Senate, for example, reaches an agreement with the Governor's Counsel that a specified number of bills, selected at random, will be sent to the Governor on

156 Benjamin, supra note 10, at 104. Benjamin estimated that in 1982, "some 33 states allow the legislature to recall measures from the governor's desk before they are signed." 157 Gantt, supra note 28, at 178.

158 Id. at 187-88.

159 Prescott and Zimmerman, supra note 32, Vol. II, at 1206.

each Thursday during the session, thereby allowing the Governor to have two Sundays rather than one to consider the measures.

160

With respect to New York, the "recall" can serve as a substitute for the veto during the legislative session. Thus, most formal vetoes still occur at the end of the session.

The politics of the item veto are well illustrated by California. The Governor may "reduce or eliminate one or more items of appropriation while approving other portions of a bill." The item veto has generally been used sparingly over the years. Between 1939 and 1961, for instance, the governor eliminated or reduced items in only six of the nineteen budget bills, for a total of $22.4 million.161 This situation was to change during the first term of Ronald Reagan as governor.

In 1967, Governor Reagan's first year, the number of items he reduced or eliminated totaled fifty-four for a dollar reduction of $43.5 million, or three percent of the budget bill. A doctoral dissertation comments on the political maneuvers during this period:

It was a widely shared view among many Republican legislators and members of the press that Democratic members of the legislature under Governor Reagan deliberately "loaded up" the budget with augmentation which they considered politically sensitive, for the purpose of forcing him to reiterate his original budget position at the time of budget bill signing by item vetoing the unwanted increases.

If this was the Democratic motive, it left Reagan unmoved. Privately, Reagan was known to prefer that the Legislature add some increases, which he could then blue pencil and once again dramatize his public image as the "champion or economy.'

" 162

The political utility of the item veto, at least in California, appears to rest more on threat than actual use. It is seen "as a bargaining tool in negotiations to effect an overall budgetary statement between the Governor and the Legislature." 163 At other times, the non-use of the item veto is more revealing of the political reality of the moment than its invocation. This situation results from the fact that when the governor is responsible for submitting a unified budget, vetoes of specific items in an appropriation bill simply may mean that he is holding true to his original budget program and total. But when he decides not to item veto an increase to his budget, this often means that a substantial political compromise has been reached.

The bulk of important bills still tended to occur during the final days of a legislative session, giving many vetoes an absolute character. To counter this gubernatorial advantage, some of the state legislatures began to convene "veto sessions." Prior to 1967, for example, if the governor of California neither signed nor vetoed a bill within ten days while the legislature was in session, the bill became law. If the ten-day period did not expire prior to the adjournment of the legislature, then the governor was given an additional thirty days to sign a bill. If he did not sign the bill, it failed to become law through the use of a "pocket veto.'

An amendment to the California constitution in 1966 provided a veto session for the legislature. This session occurred thirty days

160 Id.

161 D. Jay Doubleday, Legislative Review of the Budget in California 155 (1967).

162 Harold H. Griffin, "The Politics of the Budgetary Process in California, 1965-1971," Ph.D. diss., University of Califonria at Los Angeles, (1976), at 257.

163 Id.

after the close of the regular session and lasted five days. The only business on the agenda was consideration of the governor's vetoes, including item vetoes. Presumably, the legislature could use this session to reassert its budget priorities. Yet the actual effect during Reagan's first term was much different from that envisioned by the amendment sponsors:

This new power of review of the Legislature existed more in theory than in practice, due to the political reality that once an item veto was “blue-penciled” by the Governor, the question of overriding the veto became one not merely of the merits of the case but one of party loyalty and loyalty to the Governor. Under these circumstances, positions in the Legislature regarding item vetoes became solidified along strict party lines and in no instances was an item veto of the Governor overridden during the 1967-1970 period. Therefore, the thus-far futile gesture of placing item vetoes on a veto session agenda became the final and behaviorally inoperative stage of the budget process in California each year. 164

California's veto session was eliminated in 1972.

Adjudication subsides

Litigation on the item veto slowed considerably from 1950 to 1969. Only one case was decided in the state courts during the 1950s. In 1957 a New Mexico court allowed the governor to exercise his item-veto power even though the bill was general legislation which only incidentally contained an item of appropriation. The state constitution authorized item vetoes for "any bill appropriating money," a phrase which the court said was not synonymous with "general appropriation bill." 165

Six cases were handed down in the 1960s. Three cases limited the item veto to appropriations. A court in Connecticut ruled that the governor was without authority to veto three sections constituting items of general legislation.166 Courts in Delaware and Massachusetts decided that the governor could not use his item veto on a nonappropriation bill. The Delaware constitution limited the governor's line-item veto to "any bill making appropriations of money." 167 Similarly, the Massachusetts constitution limited the power to "any bill appropriating money." 168

In a Washington case, the judiciary ruled that the state constitution did not restrict the type of funds subject to the governor's item-veto authority. It could be used, as it was in this instance, to veto items within the legislative branch without violating the doctrine of separation of powers. 169 In another Washington case, the court held that the effect of the governor's item veto of a higher salary for his office was not to eliminate the salary. Rather, the veto merely preserved the existing salary, 170

A Florida court held that the governor may veto an item within an item. He had vetoed a portion of an appropriation item, deleting maximum salaries that the legislature had established for certain state officers. The court said that the legislature had written the bill in such a way that "there can be 'items' within 'items.'

164 Id. at 35.

165 Dickson v. Saiz, 62 N.M. 227 (1957).

166 Patterson v. Dempsey, 152 Conn. 431 (1965).

167 Opinion of the Justices, 210 A.2d 852, 854 (Del. 1965).

168 Opinion of the Justices, 349 Mass. 804, 806 (1965).

169 State v. Martin, 385 F.2d 846 (Wash. 1963).

170 State ex rel. Ruoff v. Rosellini, 55 Wash. 554 (1960).

171 Green v. Rawls, 122 So.2d 10, 16 (Fla. 1960).

999 171