Gov. Kate Brown’s proposed vetoes could be illegal, legislative officials say

Wildfire smoke turns the sky orange at the Oregon Capitol in Salem, Ore., Sept. 8, 2020. Unprecedented wildfire conditions across Oregon and the American West kicked up several fires over Labor Day weekend.

SALEM — When Gov. Kate Brown announced her intent to block a number of budget tweaks lawmakers passed last month, few were surprised. The governor had hinted for weeks she might use her veto pen to second-guess how lawmakers chose to respond to the fiscal chaos of the coronavirus pandemic.

But the specifics of Brown’s proposed vetoes are turning heads in Salem. Some legislators and legislative officials believe that the governor is on the verge of overstepping her constitutional authority to undo the will of another branch of government.

Now, with Brown facing a Monday deadline to either enact her vetoes or allow bills to go into law as passed, legislators are huddling to determine a plan of action.

“We’re certainly looking at that, but it’s too early for me to say more,” said state Sen. Elizabeth Steiner Hayward, D-Portland, one of the Legislature’s chief budget writers.

At issue are limitations in Oregon’s constitution for how the governor can use “line-item” veto power. While governors have broad authority to nix entire bills, they are more restricted when it comes to deleting small pieces of bills, while allowing the rest to pass. The constitution says that can be done only for “appropriations bills” or to block a bill from passing as an emergency, meaning it goes into effect right away.

Many of the most substantive vetoes Brown announced earlier this week undoubtedly meet the standard. She has suggested she will slash parts of House Bill 5723, the main budget bill of the special session that convened in August. With those vetoes, Brown would pull back $100 million the Legislature wanted to dole out for emergencies as it saw fit, and restore millions in cuts to many agencies responding to ongoing wildfires.

But other possible vetoes have rankled lawmakers, who say they risk setting a bad precedent and are likely unconstitutional. Those changes would alter House Bill 4304, which makes changes to a bevy of state programs.

Among the things Brown wants to block are moves by the Legislature to sweep money from some specialty funds, placing it back in the state’s general pot of money. She’s also signaled she would protect provisions designed to help the state pay down its pension obligations.

The problem: Legislative officials don’t think Brown has the authority to do that. The Legislature’s top budget official and attorney both say HB 4304 isn’t eligible for a line-item veto.

“We do not consider HB 4304 to be an appropriations bill and, therefore, not subject to a Governor line-item veto,” wrote Ken Rocco, who runs the Legislative Fiscal Office. “The Governor’s option is to veto the entire bill, as is the case with any bill that the Legislature passes.”

Dexter Johnson, the Legislature’s top attorney, said House Bill 4304 contains provisions that are far removed from budgetary concerns, making the bill ineligible 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,” Johnson said Thursday. “It’s very hard to say that the bill is an appropriations bill.”

Others agree. Gregory Chaimov, an attorney who formerly served as the Legislature’s counsel, told OPB he feels fairly certain Brown is overstepping her bounds.

“The purpose of the line-item veto was to give the governor authority to veto specific spending decisions and not program decisions,” Chaimov said. “If you push me for an answer to, ‘Can the governor do this?’ I think the answer is no.”

Brown’s office says the vetoes she’s considering are perfectly legal.

“The governor is acting within her authority,” said Brown’s deputy communications director, Charles Boyle. “House Bill 4304, passed during a special session focused almost exclusively on budget issues, is an appropriation bill because it appropriates funds — including the provisions at issue here, which redirect revenue streams.”

To some OPB spoke with, the substance of the vetoes Brown is proposing are less concerning than the precedent they might set, but it’s unclear what lawmakers are doing to push back.

The Legislature can override a gubernatorial veto with a two-thirds vote in each chamber, but that would require lawmakers calling themselves back into session to do so, at a time when partisan division has at times proved crippling.

Johnson and Chaimov both noted that overriding any vetoes wouldn’t stop the governor from similar acts in the future. Only a favorable court opinion could do that — a point that Brown has appeared to rely on before.

In 2019, the governor blocked a legislative transfer of funds that some thought was similarly questionable. A summary of that decision noted: “As of September 1, 2019, Oregon appellate courts have not interpreted the term ‘appropriation bills’” as it relates to the governor’s veto authority.

Top-ranking lawmakers largely declined to speak about the veto question when asked Thursday.

Sen. Betsy Johnson, a Scappoose Democrat and top budget writer, called the matter a “work in progress” but would not say more. House Speaker Tina Kotek’s office said she was “aware of the concern and is researching the issue.” Senate President Peter Courtney’s office did not respond to an inquiry.

Under the state constitution, Brown had 30 business days to either sign the budget bills, issue a veto, or take no action, meaning they would pass into law anyway. That deadline is Monday, Sept. 21.

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