stitutional provisions authorizing some form of the amendatory veto. The constitutional language is provided in Appendix C-2. The principal argument heard in favor of the amendatory veto is that it makes the legislative process more flexible and allows for the correction of technical errors. With the exception of South Dakota, however, state constitutions do not contain language limiting the scope or purpose of this process. Article IV, § 5 of the South Dakota constitution provides that bills "with errors in style or form" may be returned to the legislature by the governor with specific recommendations for change. Other governors have used the process on occasion to "rewrite" a bill and produce substantial policy changes. 13 In the state of Illinois, during the 1980s, the governor's use of the amendatory veto triggered a major political battle. The notion that the procedure could be confined to minor and technical alterations was refuted by practice.14 Supporters and critics of the amendatory veto, while they disagree on its desirability and utility, agree that it involves the governor even more directly in the legislative process. In that sense, the amendatory veto provides an additional breach in the separation of powers doctrine and changes the power dynamics between the governor and the legislature. PATTERNS OF ADOPTING THE ITEM VETO A study of state constitutions leads to three major impressions: (1) each state has a unique history that colors its views on the gubernatorial veto, (2) one state, when writing or revising its constitution, often copies the constitutions of neighbor states, and (3) political ideas tend to go in and out of fashion as constitution writers strive to include concepts considered in vogue. Borrowing has become so heavy that some new states "included totally irrelevant provisions in their constitutions just because they were found elsewhere." 15 America is the land of constitutions. Since 1787, one source reports that through 1983 there have been at least 230 constitutional conventions called to write or revise state constitutions. 16 There is even a "model state constitution" available for would-be constitution writers.17 Yet there remains much that is not understood about the dynamics of the constitution-writing process and about the consequences that follow from small changes in the wording of provisions. Constitution writing, now as in the past, remains a pastime principally of lawyers and professors who are motivated to "reform" government. The story of the item veto is best told in chronological fashion because it did not appear "full-blown" at any one point in time. Be 13 John Nelson Walters, "The Illinois Amendatory Veto," 11 John Marshall J. of Pract. & Proced. 415 (1978). 14 Don Sevener, "The Amendatory Veto: To Be or Not to Be So Powerful?," 11 Ill. Issues 14 (1985). 15 Benjamin, supra note 10, at 99. 16 Albert Strum and Janice May, "State Constitutions: 1982-1983," The Book of the States, 1984-1985, at 212 (1984). 17 Citizens Forum on Self-Government, Model State Constitution (6th ed. 1968). The Model State Constitution was first published in 1921 by the National Municipal League and subsequently revised six times. The National Municipal League has been renamed the Citizens Forum on Self Government. ginning as a supposedly simply concept, it evolved over the decades to become an exceptionally complex and contentious part of the American legislative process. From its first appearance in 1861, the item veto and its variations were adopted by one state after another, always with high hopes. Most of the item vetoes were in place by 1915. Reformers viewed this power as integral to "good government." But like most broad concepts, it contained the seeds of numerous surprises, snags, and paradoxes after being placed in operation. For purpose of analysis, it is useful to consider the item veto within several periods of time. These periods, roughly a generation in length, are arbitrary in the sense that they use contemporary perspectives to bring order to the past. These blocks of time, however, help to organize the events and highlight broad trends in executive-legislative relations as well as judicial involvement. Generalizations about the nature and operation of the item veto are hazardous for two reasons: the passage of over a century, and the difficulty of studying the history and politics of fifty diverse states. There is no question that the growth in the forms of gubernatorial vetoes has played a major part in the general enhancement of the governor's office since the Civil War. The item veto, whether invoked or simply held as a threat, has been a powerful political factor in the relations between the governor and the legislature. THE AGE OF SPOILS: 1865-1879 It is generally held that the item veto "first appeared in the constitution of the Confederate States in 1861." 18 This statement is usually followed by the observation that Georgia and Texas were the first states with such a provision, these being contained in their reconstruction constitutions of 1865 and 1866, respectively. 19 As is often the case with constitutional history, closer strutiny reveals a slightly different reality. Confederate constitution The addition of an item veto to the Confederate Constitution was discussed by Robert H. Smith in an address of March 30, 1861. The seceded states framed a provisional government generally along the lines of the Federal Constitution. Smith said that the states met on February 4, 1861, at Montgomery, Alabama, and drafted a constitution which followed "with almost literal fidelity the Constitution of the United States," but departed from that text "only so far as experience had clearly proven that additional checks were required for the Nation's interest." One deviation from the Federal Constitution concerned the need for an item veto: Of this character is the power given the [Confederate] President to arrest corrupt or illegitimate expenditures, by vetoing particular clauses in an appropriation bill, and at the same time approving other parts of the bill. There is hardly a more flagrant abuse of it's [sic] power, by the Congress of the United States than the habitual practice of loading bills, which are necessary for Governmental operations with reprehensible, not to say venal dispositions of the public money, and which only 18 Fairlie, supra note 3, at 483. 19 Finla Goff Crawford, State Government 171 (1931). obtain favor by a system of combinations among members interested in similar abuses upon the treasury. Bills necessary for the support of the Government are loaded with items of the most exceptionable character, and are thrown upon the [U.S.] President at the close of the session, for his sanction, as the only alternative for keeping the Government in motion. . . . the Convention of the Confederate States wisely determined that the Executive was the proper department to know and call for the moneys necessary for the support of Government, and that here the responsibility should rest. Therefore the Provisional Constitution prohibits Congress from appropriating money "from the treasury 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." 20 Smith noted that the permanent Constitution 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 the payment of claims decided by a judicial tribunal. Bills appropriating money were to "specify in federal currency the exact amount of each appropriation and the purposes for which it is made, “and Congress shall grant no extra compensation to any public contractor, officer, agent or servant, after such contract shall have been made or service rendered." 21 The provisions were added to protect the integrity of the executive budget. The Confederate Constitution also picked up other elements of the British parliamentary system. To improve communication between the Executive and the Legislature, Smith said that the Executive should have "the right to be heard through his constitutional advisers on the floor of the Legislature." The Permanent Constitution of the Confederacy allowed Congress, by law, to give department heads "a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department." 22 All of these features-giving the Executive the leading hand with budgetary estimates and enabling departmental heads to participate in legislative debate-Smith described as "modified derivations from the British Construction." 23 These reforms, combined with the power to veto appropriation items, "greatly purified our Government, and, at the same time, placed its different parts in nearer and more harmonious relations. "24 Excerpts from Smith's speech are reproduced in Appendix B. Early State actions The item veto in Georgia's Constitution of 1865 reads as follows: "He [the governor] may approve any appropriation or disapprove any other appropriation in the same bill, and the latter shall not be effectual unless passed by two-thirds of each house." However, the identical language is found in Georgia's 1861 constitution, after it had seceded from the Union. In fact, the phraseology of the Confederate constitution and the Georgia constitution with respect to 20 Hon. Robert H. Smith, "An Address to the Citizens of Alabama on the Constitution and Laws of the Confederate States of America," at Temperance Hall, March 30, 1861 (Mobile: 1861), at 7-8. 21 Id. at 8-9. 22 Id. at 9. 23 Id. the item veto is identical. It has been claimed that the two constitutions "were penned by the same hand." 25 However, Thomas R.R. Cobb, who served both as a delegate from Georgia to the Constitution Convention of the Confederate States and later as Chairman of the Georgia State Constitutional Convention, functioned more in the capacity of a scribe. Apparently the author of the item-veto provision was Smith.26 With respect to Texas, an elected convention met in Austin in February 1866. The stormy session paid little attention to the niceties of governmental structure and powers. Apparently with minimal public discussion (there is none in the official record of the Convention) 27, the provision for an item veto was copied from the Confederate constitution and included in the state constitution.28 The governor was authorized to "approve any appropriation and disapprove any other appropriation in the same bill." 29 While the South is given credit for the item veto as an institutional innovation 30, southern states were no more likely to adopt this provision in their constitutions than other states. During the years 1865-1879, there was no national or sectional movement promoting the item veto as part of a broad reform effort. State action was rather haphazard. It appears from the records that the next state to consider the item veto was New York. A convention in 1867 produced a completely new constitution. The convention considered an item veto of appropriation bills but rejected it. The debate on the issue, however, was lengthy and sophisticated. Amasa Parker, a promoter of the item veto, indicated that it had been adopted in two states "and is in successful operation." When asked which states he replied: Tennessee [Parker was mistaken and should have said Georgia], and I believe Texas. I must say, in common fairness, I believe it was a provision in the Constitution of the so-called Confederate government. That was to my mind, in the first place, an objection to it. I did not quite like the example, but I remembered to have been taught the old maxim, fas est ab hoste doceri (we may take a good idea even from our enemies), and I could not see that a good principle ought to be rejected because it had been used by rebels. 31 Although the New York convention decided to exclude the item veto in the constitution presented to the voters, in 1872 a New York Constitutional Commission recommended that the item veto on appropriations bills be given the governor. 32 This amendment was ratified in 1874. 25 Walter McElreath, A Treatise on the Constitution of Georgia 130 (1912). 26 Frank W. Prescott, "A Footnote on Georgia's Constitutional History: The Item Veto of the Governor," 42 Ga. Hist. Q. 1, 2 n.5 (1958). 27 The Convention Journal of 1866 does not contain an account of the debates; Charles W. Ramsdell, Reconstruction in Texas 320 (1910). 28 Fred Gantt, Jr., The Chief Executive in Texas: A Study in Gubernatorial Leadership 183 (1964). 29 Swindler, supra note 1, Vol. 9, at 287. 30 Speaking to a campaign audience in Richmond, Virginia in 1952, presidential candidate Adlai E. Stevenson waxed eloquently on the item veto: "Is it too much to hope that our Federal Government may soon adopt this priceless invention of southern statesmanship?" This statement appears in the testimony of Congressman Charles E. Bennett in "Item Veto," Hearings before the House Committee on the Judiciary, 85th Cong., 1st Sess. 49 (1957). 31 Proceedings and Debates of the Constitutional Convention of the State of New York, 18671868 (1868), Vol. 1, pp. 1117-18. 32 Frank W. Prescott and Joseph F. Zimmerman, The Politics of the Veto of Legislation in New York State 143 (1980). West Virginia rewrote its constitution in 1872 and included an item veto for the governor. The wording used in the constitutional provision was drafted to be more precise than the wording of the Confederate Constitution. 33 Article VII, section 15 of the West Virginia Constitution read: Every bill passed by the Legislature, making appropriations of money embracing distinct items, shall, before it becomes a law, be presented to the Governor; if he disapprove the bill, or any item or appropriation therein contained, he shall communicate such disapproval with his reasons therefor, to the House in which the bill originated; but all items not disapproved shall have the force and effect of law, according to the original provisions of the bill. Any item, or items, so disapproved shall be void, unless re-passed by a majority of each House, according to the rules and limitations prescribed in the preceding section in reference to other bills. 34 Legislative corruption and abuse Two factors seemed to attract constitution writers to the item veto in the late 1860's and 1870's: the reputation of state legislatures for corruption and the need to provide a check on hasty and ill-conceived legislation, particularly bills passed in the final days of a session. The item veto was expected to be used against "porkbarrel" and "log-rolling" tactics. 35 With regard to legislative corruption, most students of this period describe the venality of political life at that time.36 Many state legislators were considered vulnerable to bribes for introducing private and special legislation. At the national, state, and local level, the post-Civil war period was "marked by excesses of freebooting entrepreneurs and political spoilsmen that led to constitutional, statutory, and judicial restraints designed to protect the victims of what seemed an age of greed, grab, and gain." 37 The following description of the Illinois legislature of the time appears reasonably typical of other states as well: The record of the Illinois assembly in the period immediately following the Civil War is perhaps no more shameful than the general legislative debacle of that period; but the enactment of 2,113 bills during Governor Ogelsby's term (1964-68), and of an additional 1,814 during the term of Governor Palmer (1868-72), illustrates the orgy which took place in legislatures generally. The disturbing feature of these legislative mills was the fact that a large majority of their products were obviously, and even blatantly, special in nature. Grants, subsidies, charters, appropriationsfavors in the form of special and local legislation-were enacted in gross negligence of public interest. (The fiction of Mark Twain's "Gilded Age" is hardly as strange as the truth.) A clear impression of the extent of this violation of legislative principle may be had by comparing the four volumes of special and local bills enacted in 1869 with the single volume of enactments of general state interest and purpose. One of the primary tasks undertaken by the Illinois constitutional convention of 1869-70 was that of providing some effective limitation upon arbitrary legislative action. 38 33 Report of the "Committee of the Whole" on the Report of the Committee on the Executive Department, at 7. In Constitutional Convention of the State of West Virginia, Journal of the Constitutional Convention (1872). 34 The West Virginia Constitution of 1872 also included a provision limiting each law to one object: "No act hereafter passed, shall embrace more than one object and that shall be expressed in the title" (Art. VI, § 30). 35 Harold M. Dorr, "The Executive Veto in Michigan," 20 Mich. Hist. Mag. 91, 95-96 (1936). 36 For an informative discussion of the ethics then prevailing in state legislatures, consult Robert Luce, Legislative Assemblies 422-35 (1924). 37 Allan R. Richards, "The Heritage of the Eighteenth and Nineteenth Centuries," in James W. Fesler, ed., The 50 States and Their Local Governments 59 (1967). 38 Glenn R. Negley, "The Executive Veto in Illinois," 22 Am. Pol. Sci. Rev. 1049, 1050 (1939) (footnote omitted). |