After Rants v. Vilsack: An Update on Item-Veto Law in Iowa and Elsewhere

• Author: Jeffrey A. Scudder
• Position: J.D. Candidate, The University of Iowa College of Law
• Pages: 08

Jeffrey A. Scudder: J.D. Candidate, The University of Iowa College of Law, 2006; B.A., The University of Northern Iowa, 2003. First and foremost, I wish to thank my family and friends for their support and encouragement. For stimulating my interest in all things "political," I am grateful to the best high school government teacher a person could have, Mrs. Beth Ann Schumacher. Thank you also to members of Volumes 90 and 91 of the Iowa Law Review for their help with this piece. All remaining errors and omissions are mine.

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I Introduction

"It is a malformed monstrosity, born out of wedlock."¹ That is how U.S. Senator Robert Byrd has described the line-item veto.² Notwithstanding Senator Byrd's opinion, the item veto has long been a popular concept at the federal level. Presidents began asking Congress for such a power more than a century ago,³ and in 1996 the legislative branch finally obliged.⁴ Its appearance was short-lived, however, as the U.S. Supreme Court held the line-item veto unconstitutional in 1998.⁵

After his reelection in 2004, President George W. Bush renewed the call for federal item-veto authority.⁶ He and members of his staff claimed that it was possible to devise a veto power that would "pass constitutional muster."⁷As a result, interest in the federal item-veto power seems poised to grow once again.

This Note focuses on the item veto's equally storied but more successful history at the state level. Specifically, the focus is on the Iowa Supreme Court decision in Rants v. Vilsack⁸ in June 2004, which marked a new chapter in Iowa's item-veto case law. This Note begins in Part II.A by providing general background information on the executive veto power and describing how the item-veto power is perhaps more appropriate at the state level,⁹ given the unique budgeting responsibilities most governors assume.

This Note, in Part II.B, also describes the 1968 amendment that granted item-veto power to the Iowa Governor.¹⁰ Part II.C briefly recounts the item- veto cases leading up to the dispute in Rants v. Vilsack.¹¹ The Note then Page 376 discusses the litigation in Part III.A, including relevant external facts, issues,¹² and the Iowa Supreme Court's resolution of those issues.¹³ In Part IV, this Note analyzes the Rants decision and the impact it will have on Iowa item-veto law going forward. The analysis takes into account the Iowa court's application of its own precedent to the Rants litigation, and also considers recent developments in item-veto case law outside of Iowa.¹⁴ Finally, this Note analyzes the helpfulness of Iowa's single-subject requirement in Part IV.C.¹⁵

II Background

A Description Of The Veto Power

Three types of veto power exist today: the general veto, the pocket veto, and the item veto.¹⁶ The general-veto power is granted in the Federal Constitution and most state constitutions¹⁷ and empowers the executive to "affirmatively disapprove" any bill adopted by the legislative branch.¹⁸ The pocket veto typically applies when a bill gains legislative approval in a lawmaking session's final stages.¹⁹ In that case, the pocket veto operates to give the executive more time to consider the bill, and in the event of executive inaction on a piece of legislation, changes the default result from approval to disapproval.²⁰

The item veto is fundamentally different from the general- and pocket- veto powers mentioned above. While the general and pocket vetoes are "qualified negative check[s] upon legislative power,"²¹ the item veto actually blurs the separation of powers and gives the executive a "limited legislative function."²² Given item-veto authority, an executive may selectively disapprove individual "items" within a bill without using his general-veto Page 377 power to disapprove the entire bill and return it to the legislative branch.²³ A majority of states have incorporated the item-veto power into their respective constitutions.²⁴

Scholars use multiple rationales to support item-veto power. Professor Richard Briffault has described three justifications at length: (1) an attempt to prevent legislative "logrolling"; (2) states' focus on balancing their budgets; and (3) giving the executive more power in the budgetary process.²⁵

"Logrolling" refers to the legislative practice of grouping multiple, unrelated pieces of legislation together so that less-popular provisions can be adopted in the context of a more popular overall bill.²⁶ In response, some states have "single-subject requirements"²⁷ aimed at limiting the scope of individual measures, but "[t]he invalidation of a state law for a violation of the single-subject rule is a rarity."²⁸ Briffault argues that the item veto furthers anti-logrolling efforts by "vesting" them in the governor rather than in the courts, which are more insulated from politics.²⁹ Also, "the item veto focuses on the area most prone to pork barrel legislation and which the states have concluded most needs protection against logrolling and riders- the budgetary process."³⁰

Briffault's two remaining justifications for the item veto are interrelated. He notes first that "[t]he item veto is closely associated with the effort to reduce state spending and balance state budgets,"³¹ which "nearly all state constitutions require."³² Second, governors are assuming a larger role in their states' budgeting processes.³³ "Governors may be more likely to seek Page 378 state-wide budget goals and hold down the size of the budget because they answer to a state-wide constituency and are in a better position to assess the impact of spending measures on the state budget."³⁴ Thus, when a legislature gets out-of-hand in drafting the state budget, a governor can use his item veto to strike appropriations and reign in overall spending on behalf of taxpayers.³⁵

B 1968: Iowa Joins Forty-Two Other States In Adopting The Item Veto

In 1968, Iowa voters passed an amendment to the state constitution that granted the Iowa Governor item-veto authority.³⁶ Article III, section 16 of the Iowa Constitution states that "[t]he Governor may approve appropriation bills in whole or in part, and may disapprove any item of an appropriation bill; and the part approved shall become a law."³⁷

The Iowa Governor's item-veto power is thus limited in scope, and can be used only to disapprove "any item" within an "appropriation bill."³⁸Defining those two ostensibly simple phrases has proved difficult for Iowa courts, in part because the applicable statutory definitions are circular. The Iowa Code defines an appropriation bill as one "which has as its primary purpose the making of appropriations of money from the public treasury."³⁹Since 1968, the Iowa Supreme Court has developed and refined the scope of Iowa's item-veto power.

C Item-Veto Case Law In Iowa: 1968 To 2003

1. State ex rel Turner v. Iowa State Highway Commission

The Iowa Supreme Court had its first opportunity to weigh in on the item-veto amendment in 1971, just a few years after its adoption. In State ex Page 379 rel. Turner v. Iowa State Highway Commission, the Iowa Attorney General brought an action in equity to prevent the highway commission from relocating its resident engineers' offices.⁴⁰ The Governor had vetoed a highway-appropriation-bill provision that prohibited such relocations,⁴¹ and the Attorney General claimed the veto violated the Iowa Constitution.⁴²

The court upheld the item veto, construing the Iowa Constitution to permit vetoes of non-monetary provisions within appropriation bills.⁴³Noting that the vetoed provision "did not 'qualify an appropriation' or 'direct the method of its use,'"⁴⁴ the court also posited in dicta that:

[S]hould the Governor of Iowa exceed his authority and attempt to disapprove an item in a nonappropriation bill, or to disapprove part of an appropriation bill which is not in and of itself an "item," the natural result would be that the bill as a whole would become law as though he had approved it or had failed to exercise the affirmative disapproval required by our Constitution.⁴⁵

In essence, the Iowa Supreme Court used its first review of the item-veto amendment to give the term "item" a liberal construction, holding that it could encompass non-monetary provisions.⁴⁶ Page 380

2. Welden v Ray

In Welden v. Ray, the Iowa Governor item-vetoed myriad provisions that were legislative qualifications on the direct appropriation of money.⁴⁷ The Iowa Supreme Court reaffirmed the proposition that "[t]he appropriation of money is essentially a legislative function under [Iowa's] scheme of government."⁴⁸ Accordingly, it held that "if the Governor desires to veto a legislatively-imposed qualification upon an appropriation, he must veto the accompanying appropriation as well."⁴⁹

Welden thus put the Iowa legislature on notice that it...