Last year, as they worked to close an expected hole COVID-19 had created in the state’s budget, Oregon lawmakers bristled at Gov. Kate Brown’s decision to veto some of their decisions.
Top lawmakers and budget writers were so incensed by the line-item vetoes, which they believed were unconstitutional, that they even considered taking Brown to court over the matter. That would’ve been similar to legal squabbles over vetoes that have taken place around the country.
But lawmakers didn’t sue. Instead, they simply chose not to honor Brown’s decision.
In a move that has surprised observers, the Legislature has behaved essentially as if Brown didn’t issue vetoes at all. Lawmakers even passed two bills during the 2021 session that built upon language the governor had specifically sought to scrub from the books.
Perhaps even more unexpected: Brown signed those bills.
The actual policies at issue in this push-and-pull are the mundane stuff of state budgeting — highly technical tweaks to the way assets flow through Oregon’s many accounts and subaccounts. But underneath those details are larger questions about the limitations of executive power in Oregon.
The ultimate answers to those questions would need to come from Oregon courts, but neither side appears in a rush to get them. The Legislature and governor’s office have instead been content to let the contradiction linger, while both insist they are correct.
“If the legislative branch questioned the Governor’s authority to veto these items, it could have brought a lawsuit to settle them,” Liz Merah, a spokeswoman for Brown, said in an email Monday. “The legislature did not.”
House Speaker Tina Kotek’s office offered a different take.
“The issue is that the Governor took actions that the constitution does not authorize her 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 whole bills as she sees fit. But executive power is far more limited when it comes to deleting single items from bills that are otherwise passed into law. This “line-item” authority is only granted for appropriations bills that spend public money, and for eliminating an emergency clause that would make a bill take effect immediately.
Last year, following a special session to balance the state budget, Brown excised elements of two bills lawmakers had passed to save money. The governor said at the time she wanted to block some $18 million in cuts to ensure state agencies had the funding they needed to battle historic wildfires that had ignited since lawmakers passed the policies.
But while many of her vetoes were unquestionably legal, Brown took aim at one bill, House Bill 4304, that legislative officials said was not an “appropriations” bill. As a result, lawmakers say the bill wasn’t fair game for a line-item veto.
“If you look at the four corners of the bill, there’s a whole bunch of different things going on,” Dexter Johnson, the Legislature’s top attorney, told OPB at the time. “It’s very hard to say that the bill is an appropriations bill.”
Others were even more strident, and Senate President Peter Courtney said last year lawmakers were seriously considering filing suit to block what they viewed as an overreach by the governor.
“I’m deeply bothered ... philosophically in terms of how I view the legislative body,” Courtney, a Salem Democrat, said in September.
Courtney and others also worried that a legal tussle would be distracting and expensive as wildfires raged and COVID-19 posed an extreme health threat. No lawsuit emerged — but neither did any impact from Brown’s disputed veto.
Courtney’s office did not answer questions about the situation this week. Kotek’s office, meanwhile, insisted that lawmakers did not ignore Brown’s directive, saying it was acknowledged on the House floor as a “purported veto.”
How that meaningfully differs from simply disregarding the decision is unclear. Two bills passed earlier this year — House Bills 2433and 2158— included some of the very language Brown had tried to delete, as if no veto had been issued. The governor gave her blessing to both.
“Technically, the Governor acknowledged the ineffectiveness of the single-item vetoes by signing into law HB 2433 and HB 2158 this year,” Moran, the spokesman for the House speaker, said in an email. The governor’s office said Tuesday that the changes enshrined in the bill were “immaterial and do not change the fact that the items... were constitutionally vetoed.”
Johnson, the top legislative attorney, said last week that the Legislature’s action is not unprecedented. He pointed to instances where former Gov. Ted Kulongoski issued vetoes lawmakers thought were unlawful. The Legislature subsequently passed bills formally repealing the laws Kulongoski had tried to veto.
“The repeals would have been unnecessary, and would not have been done, if the legislature had believed the Governor’s vetoes were effective,” Johnson said.
But honoring a governor’s intentions with a later bill is not the same as disregarding their decision, as happened in this case. Greg Chaimov, a Portland attorney who formerly served as the lead counsel for the Legislature, said he could not recall an instance during his tenure where lawmakers flatly refused a veto. That’s particularly notable since Chaimov worked at the Legislature during a time when former Gov. John Kitzhaber earned the nickname “Dr. No” for his frequent use of the veto pen.
“He did line item stuff, but I can’t think of a veto in a way which we thought was unlawful,” Chaimov said.
Both Chaimov and Jim Moore, a political science professor at Pacific University, noted it’s not unheard of in Oregon for one branch of government to discount the will of another. As Moore put it: “There have been cases where governors do not completely execute what the Legislature has legislated, but that is pretty normal behavior.”
Legislatures elsewhere have been less restrained in challenging a governor’s vetoes. Lawmakers in Arizona, Minnesota andplenty of other states have filed court challenges over the years, many of them posing the same question that exists in Oregon: whether an item constitutes an “appropriation” that is fair game for a line-item veto.
In Washington, lawmakers are currently locked in a court battle with Gov. Jay Inslee over a similar issue.
In Oregon, all parties appear to agree that any question of the legitimacy of Brown’s vetoes could ultimately be answered by an appeals court decision. None have indicated they will seek such a ruling.
Copyright 2021 Oregon Public Broadcasting
