Last year, as they worked to fill a hole COVID-19 created in the state budget, Oregon lawmakers bristled against Gov. Kate Brown’s decision to veto some of their decisions.
Major lawmakers and budget drafters were so enraged by the clause-by-clause vetoes, that they thought unconstitutional, that they even considered taking Brown to court over it. It would have been similar to the legal wrangles over vetoes that have taken place across the country.
But lawmakers did not file a complaint. Instead, they simply chose not to honor Brown’s decision.
In a move that surprised observers, the legislature essentially behaved as if Brown had not vetoed it at all. Lawmakers even passed two bills in the 2021 session that relied on language the governor had specifically sought to erase from the books.
Perhaps even more unexpected: Brown signed these invoices.
The actual policies at issue in this push-and-pull are the mundane things of state budgeting – highly technical adjustments to the way assets flow through Oregon’s many accounts and sub-accounts. But beneath those details lie larger questions about the limits of executive power in Oregon.
The ultimate answers to these questions are expected to come from the Oregon courts, but neither side seems in a rush to get them. Instead, the Legislative Assembly and the Governor’s Office have been content to let the contradiction persist, while both insist they are right.
“If the legislature questioned the governor’s power to veto these items, it could have taken legal action to resolve them,” Brown spokesperson Liz Merah said in an email. Monday. “The legislator did not do it.
House Speaker Tina Kotek’s office has come up with a different approach.
“The problem is that the governor has taken action that the constitution does not authorize him to take in the first place,” spokesman Danny Moran said. “The veto was not valid.
Under the Oregon Constitution, Brown has wide latitude to veto entire bills as he sees fit. But executive power is much more limited when it comes to removing isolated elements from bills that would otherwise pass. This “by mail” authorization is only granted for supply bills that spend public money, and for the elimination of an emergency clause that would make a bill immediately enforceable.
Last year, following a special session to balance the state budget, Brown scrapped elements of two bills lawmakers passed to save money. The governor said at the time that she wanted to block some $ 18 million in cuts to ensure state agencies have the funding they need to tackle the historic wildfires that had started since lawmakers adopted the policies.
But while many of his vetoes were unmistakably legal, Brown targeted a bill, House Bill 4304, which lawmakers said was not an “appropriation” bill. veto article.
“If you look at the four corners of the bill, there are a whole bunch of different things going on,” Dexter Johnson, senior counsel for the Legislature, told the OPB. “It is very difficult to say that the bill is an appropriation bill.
Others were even more strident, and Senate Speaker Peter Courtney said last year that lawmakers were seriously considering filing a lawsuit to block what they saw as excessive interference by the governor.
“I am deeply disturbed … philosophically by how I view the legislature,” Courtney, a Democrat from Salem, said in September.
Courtney and others were also concerned that a legal feud would be distracting and costly as wildfires raged and COVID-19 posed an extreme health threat. No lawsuit has emerged – but neither has any impact from Brown’s contested veto.
Courtney’s office did not respond to questions about the situation this week. Kotek’s office, meanwhile, insisted lawmakers were not ignoring Brown’s directive, saying it had been recognized in the House as a “so-called veto.”
How this significantly differs from simply ignoring the decision is unclear. Two bills passed earlier this year – House Bills 2433 and 2158 – included some of the very terms Brown had tried to remove, as if no veto had been issued. The governor gave his blessing to both of them.
“Technically, the governor has recognized the ineffectiveness of single-element vetoes by signing laws HB 2433 and HB 2158 this year,” Moran, the Speaker’s spokesperson, said in an email. The governor’s office said on Tuesday that the changes in the bill were “immaterial and did not change the fact that the articles … were constitutionally vetoed.”
Johnson, the senior legislative attorney, said last week that passive aggression by the legislature, in this case, is not without precedent. He pointed to instances where former Gov. Ted Kulongoski issued vetoes that lawmakers deemed illegal. The legislature then passed bills formally repealing laws that Kulongoski had tried to veto.
“The repeals would have been unnecessary and would not have been carried out if the legislature had believed the governor’s vetoes were effective,” Johnson said.
But honoring a governor’s intentions with a subsequent bill is not the same as ignoring his decision, as happened in this case. Greg Chaimov, a Portland lawyer who was previously the legislature’s senior counsel, said he could not recall a case during his tenure where lawmakers flatly refused a veto. This is particularly noteworthy since Chaimov served the legislature at a time when former Governor John Kitzhaber earned the nickname “Dr. No ”for his frequent use of the veto pen.
“He did things on campaign elements, but I can’t think of a veto in a way that we thought was illegal,” Chaimov said.
Chaimov and Jim Moore, professor of political science at the University of the Pacific, noted that it is not uncommon in Oregon for one branch of government to ignore the will of another. As Moore put it, “There have been instances where governors do not fully implement what the legislature has legislated, but that is pretty normal behavior.
Elsewhere, legislatures have been less successful in challenging a governor’s veto. Lawmakers in Arizona, Minnesota and many other statess have filed court challenges over the years, many of them asking the same question that exists in Oregon: whether an article constitutes “appropriation” that is a fair game for a line article veto.
In Washington, lawmakers are currently locked in a legal battle with Governor Jay Inslee on a similar issue.
In Oregon, all parties seem to agree that any question about the legitimacy of Brown’s vetoes could ultimately be resolved by an appeals court decision. None have indicated that they would seek such a decision.