Evaluating proviso in the state budget: is the Florida Legislature complying with the Constitution?

• Author: Dunbar, Marc W.

Each spring, the Florida Legislature convenes in accordance with the Florida Constitution to consider a myriad of legislation. (1) Of more than 3,000 bills filed each year, only one is constitutionally required to be acted upon by our citizen legislators: the General Appropriations Act. (2) No single measure has a broader reach in impacting the lives of every Floridian. In 2006, the legislature spent over $73 billion, providing detailed spending instructions (in the form of proviso language) for each tax dollar spent. Given the complexity of such a spending plan, the legislature occasionally, albeit inadvertently, goes beyond its constitutional authority by including within the General Appropriations Act some nonfiscal provisions which alter, repeal, or create substantive law.

Over the last several years, Florida Governor Jeb Bush has questioned the propriety of some proviso language in the General Appropriations Act. Within the 2004 constitutionally required letter to Florida's secretary of state outlining his annual line item vetoes, Gov. Bush expressed these concerns:

In the recent past, the executive branch has seen a gradual increase in the level of attempted legislative interference in the expenditure by the executive of funds already appropriated by the legislature. This attempted interference has no place once the budget process has been concluded. Although it is appropriate and legal for the legislature to exercise its oversight responsibilities during its approval of a budget, its attempts to direct the manner and timing by which the executive exercises its authority is inappropriate and an abuse of legislative power. It violates our constitutional concept of the separation of powers.... Because the proviso itself does not constitute a specific appropriation, it is not subject to gubernatorial veto without also vetoing the funds to which the proviso is attached. However, it is important that I express my serious concerns regarding the legality of such proviso and reserve the right to seek an appropriate remedy in the future. (3)

The offensive language at issue in that veto letter involved requirements for ongoing consultation by the executive branch with the legislature as a prerequisite to the expenditure of appropriated funds. (4) This language is one example of budget proviso which the legislature uses to shape our laws and create public policy. This article assists the practitioner in evaluating proviso language found in a General Appropriations Act (or any corresponding appropriations implementing bills) against the constitutional restrictions placed on the legislature.

The power to appropriate funds from the state treasury is a duty assigned exclusively to the legislature by Article III of the Florida Constitution. (5) This "power of the purse" however, is not absolute and is tempered by two very basic restrictions. First, Article III, [section] 6 states that all general laws must "embrace but one subject and matter properly connected therewith." (6) Although appropriations bills are not "general laws," many of the laws enacted in conjunction with, or to implement, the appropriations bills are, in fact, general laws and, thus, are subject to the single subject requirement for general laws. (7) Second, Article III, [section] 12 prohibits the inclusion in appropriations bills of any subjects other than appropriations. (8) Collectively, these two sections are referred to as the "single subject requirement" governing the appropriations process.

Before embarking on an evaluation of the single subject boundaries as interpreted by Florida's courts, an overview of the policy behind the single subject requirement is necessary. In one of the first cases evaluating a single subject challenge to an appropriations bill, the Florida Supreme Court concluded that "the purpose of [the single subject requirement] is generally conceded to be to prevent including in bills appropriating money to carry on the government of the [s]tate, measures foreign to that purpose, and by taking advantage of the necessities of the [s]tate, force the legislature to adopt them, or stop the entire machinery of the government for want of funds to carry it on." (9) This practice, later referred to as "logrolling," has been denounced by the Florida Supreme Court as a vehicle for circumventing the veto power of the governor and as a means of "empire building" by the legislature. (10) The assurance sought by the court was that when an appropriation bill is up for consideration, the public should have confidence that its adoption is not prejudiced by the injection of any other matters, regardless of their merit. (11)

The seminal case evaluating the boundaries of the appropriations single subject requirement is Brown v. Firestone, 382 So. 2d 654, 664 (Fla. 1980). Writing for the Florida Supreme Court, Justice Alan Sundberg acknowledged that the legislature is not powerless to determine how appropriated funds may be used. (12) Speaking for the court, Justice Sundberg affirmed that the legislature may attach qualifications or restrictions to the use of appropriated funds. (13) These qualifications, known as "proviso," may be included within specific line items (14) of the General Appropriations Act or within free-standing provisions of general laws found in the various budget implementing bills. (15) Justice Sundberg stated that the Florida Constitution restricts the legislature's ability to use proviso and outlined two general principles to evaluate compliance with Article III, [subsection] 6 and 12. (16)

First, an appropriations bill must not change or amend existing laws on subjects other than appropriations; appropriations bills must deal only with appropriations and "matters properly connected therewith." (17)...