The Item Veto and the Threat of Appropriations Bundling in Alaska

• Publication year: 2013

§ 30 Alaska L. Rev. 125. THE ITEM VETO AND THE THREAT OF APPROPRIATIONS BUNDLING IN ALASKA

Alaska Law Review
Volume 30, No. 1, June 2013
Cited: 30 Alaska L. Rev. 125

THE ITEM VETO AND THE THREAT OF APPROPRIATIONS BUNDLING IN ALASKA

NICHOLAS PASSARELLO ^[*]

ABSTRACT

The item veto power forms an important check on the legislature in many states, including Alaska. The power allows the governor to veto individual items in an appropriations bill rather than vetoing or signing the bill as a whole. In 2011 the Alaska State Legislature contemplated challenging this crucial executive power. A proposed draft of the annual capital appropriations bill contained language that linked each energy appropriation to all the others, providing that if the governor struck one item then none of the items would go into effect. Further, the legislature inserted language providing that none of the proposed energy appropriations would go into effect if the section of the bill linking them together were successfully challenged in court. While neither provision was included in the final version of the bill signed into law, they prompted a controversy about whether such language would comport with the requirements of the state constitution. If they had been passed, the provisions would indeed have been unconstitutional and invalid, as they usurp the governor's constitutional item veto power and violate the confinement clause's requirement that the content of appropriations bills be limited to appropriations.

INTRODUCTION

At both the state and federal levels, the separation of powers comprises an essential part of the constitutional scheme. The dynamic tension caused by one branch of government limiting the others is designed to ensure that no one branch acquires too much power and engages in tyrannical governance. One of the ways the executive branch checks the legislative is through the veto power. ^[1] Many state governors enjoy a variation on the veto power, the item veto, through which the governor can strike individual items in an appropriations bill rather than veto or sign the entire bill as it is presented to him. ^[2] The Alaska Constitution vests this power with the governor. ^[3] Since the item veto is an effective check on the power of the legislature (and especially because this particular power limits legislators' politically essential ability to bring state spending back to their home district), it should come as no surprise that the legislature occasionally chafes at the restrictions placed on them by this executive power.

In the spring of 2011 the Alaska State Legislature contemplated mounting an attack on the governor's item veto power. A preliminary version of that session's capital appropriations bill, Senate Bill ("S.B.") 46, included language that would prevent the governor from striking individual energy appropriations and force him to accept or reject the entire package of energy spending as a whole. ^[4] The governor's office girded itself for battle, preparing arguments to challenge the language as unconstitutional. ^[5] In the end, the litigation never came; the legislature removed the language from the version of the appropriations bill that it eventually passed. ^[6] But the move to limit executive checks on the legislature's lawmaking authority, tentative though it was, raises interesting issues about the interaction of the two branches in Alaska.

The first part of this Note describes a constellation of constitutional provisions, both in Alaska and elsewhere, that pertain to the separation of powers doctrine. Section 1 discusses the item veto generally, including its theoretical justifications and where it appears. Section 11 describes the item veto power as it is applied in Alaska. Section III addresses the Alaska Constitution's confinement clause, a constitutional provision that augments the item veto power. The second part of this Note turns to the story of a recent controversy that implicates the constitutional powers and restrictions described in the first portion. Section IV outlines the legislative history and language of S.B. 46, the legislation provoking the issue. Section V endeavors to lay out and evaluate the arguments against the constitutionality of the proposed bill. Ultimately, this Note concludes that the language proposed in the bill would have violated the governor's item veto power and the confinement clause. The issue is surely unsettled; the legislature removed the potentially offending language before passing the bill, and so the questions it raised were never brought before the courts for disposition. The lack of resolution means that nothing prevents the legislature, either in Alaska or in other states with similar constitutional provisions, from passing a future bill containing similar language. Thus this Note seeks first to provide an account of the events and attitudes in the spring of 2011 related to the legislature's contemplated attempt to curb the executive's item veto power, and second to take a position on the constitutionality of that attempt in an effort to contribute to the discourse should the issue arise in the future. Section I begins by setting out the constitutional backdrop against which it unfolded.

I. THE ITEM VETO

Most graduates of a high-school civics class will recall that the veto plays an important role in the checks and balances between the branches of government. For the sake of those who may have forgotten, veto (literally: "I forbid") refers to "[a] power of one governmental branch to prohibit an action by another branch; esp[ecially], a chief executive's refusal to sign into law a bill passed by the legislature." ^[7] The Federal Constitution and most state constitutions grant general veto power to the chief executive. ^[8] This power allows the executive to reject a bill passed by the legislature in toto, preventing any part of the bill from becoming law. ^[9] However, the power of the executive is usually tempered by a process through which the legislature may override the veto and pass the bill into law despite the executive's objections (often in the form of a super-majority vote). ^[10] The drafters of the Federal Constitution saw the veto as "both theoretically and realistically necessary to preserve the separation of powers." ^[11] The general veto is a self-defensive, negative power used to block an act of the legislature, not a creative power wielded by the executive in crafting legislation. ^[12] Instead, the veto process serves the twin goals of allowing the chief executive an opportunity to consider bills passed by the legislature and allowing the legislature an opportunity to consider any of the executive's objections and, in some cases, override his veto. ^[13] This give-and-take between the legislative and executive branches comprises an important part of the checks-and-balances system of the American constitutional tradition.

The item veto (or line-item veto) comprises a separate and more rare variation of the veto power. In contrast to the general veto power, through which the executive may either sign or negate an entire piece of legislation, the item veto power allows the executive to "veto some provisions in a legislative bill without affecting other provisions." ^[14] Unlike the general veto power, which can function only as a negative check on executive power, the item veto grants the governor a more involved role in formulation of the budget; it provides the chief executive with a "limited legislative function." ^[15] Whereas the general veto results in either enactment of the law as passed by the legislature or no law at all, the item veto opens the possibility of enactment of a budget different from the appropriations bill passed by the legislature. The chief executive is therefore participating in the process of making the law, an inherently quasi-legislative role. The authority to shape the contours of the law is not unchecked, however. Like the general veto power, the legislature can override the item veto, again usually in the form of a super-majority vote. ^[16] Thus, the item veto allows the chief executive a greater role in the formulation of legislation, but still functions within the checks-and-balances system.

The justification for the item veto power rests on a variety of policy goals. Professor Richard Briffault identifies three interrelated reasons: preventing log-rolling, imposing fiscal restrictions on the legislature, and fortifying the executive branch's role in the budgetary process. ^[17] Log-rolling refers to the process in which several provisions supported by an individual legislator or minority of legislators are combined into a single piece of legislation supported by a majority of legislators on a quid pro quo basis: "no one provision may command majority support, but the total package will." ^[18] The practice is undesirable from both a theoretical and practical standpoint. It leads to government programs that are only supported by a minority of representatives, and it dilutes the executive's general veto power by forcing her to choose to sign or veto the whole of a bill containing many heterogeneous components. ^[19] Many constitutions attempt to control log-rolling through single-subject or confinement rules (discussed in Section 111 infra) that restrict bills to a single subject, but alone these rules are ineffective because of difficulties in legally defining the scope of a "subject". ^[20] The item veto better controls log-rolling because it is...