The showdown between Greg Abbott and the Legislative Budget Board can be summarized as follows: this is a separation of powers case. And it’s a substantive and provocative case, to boot. To give a quick summary, the debate concerns Abbott’s line-item vetos to the state’s biennial budget, which the governor signed June 20th, after whittling it down by about $300m, mostly by cutting appropriations for state facilities.
Last month Ursula Parks, the director of the Legislative Budget Board, sent a letter to Glenn Hegar, the comptroller, arguing that a number of Abbott’s line-item vetoes exceeded his constitutional authority, and therefore were invalid. Briefly put, LBB’s argument is that although the governor can veto items of appropriation, he can’t veto the budget riders that direct portions of those appropriations for, say, a new parking garage; those line-item vetoes should be ignored, Parks says, and the comptroller should go ahead and release the funds as appropriated by the Lege. The governor’s office, naturally, disagrees. Their reasoning, as summarized in a brief memo written prior to the vetoes and detailed in the 62-page brief I mentioned Friday, is that the aforementioned budget riders are functionally equivalent to items of appropriation, and that the Lege is trying to use “magic words” to protect its parking garages and whatnot from the governor’s veto pen.
After puzzling over these documents, I think the LBB is correct, and also that I wouldn’t want to get caught in a courtroom fight with these Abbott attorneys. (I’ll explain why in a separate post, though.) First I’d like to deal with the side drama that was spurred by the substantive dispute. Ultimately, Dan Patrick’s adverse reaction to Parks’s memo tells us nothing about the constitutional question. But it does tell us something about Patrick.
Necessary context first: Per the Texas Constitution, the lieutenant governor is a statewide elected official, elected separately from the governor, whose office is part of the executive branch. In addition, Texas’s lieutenant governor is the president of the state senate. In some contexts, his role corresponds directly to that of the Speaker of the Texas House; Patrick and Joe Straus are, for example, the joint chairs of the Legislative Budget Board. In some respects, however, the lieutenant governor’s control over the upper chamber exceeds the speaker’s control over the lower one. In the House, for example, a pair of committees—Calendars and Local & Consent—schedule bills to be heard on the floor; Straus appoints the members of these committees, and can exert some pressure on them, but not to a despotic degree. The Senate has a quasi-corresponding intent calendar, but the lieutenant governor decides the order in which bills are heard on the floor, or whether they are heard on the floor at all.
This hybrid legislative-executive role helps explain why the lieutenant governor is sometimes described as the most powerful statewide official in Texas. It does not help explain Patrick’s inexplicable response to the LBB memo.
His immediate reaction, on July 22nd, was denunciation: he proclaimed himself “extremely disappointed” in the LBB, and called for a review of all legislative agencies. The next day, after Straus spokesman Jason Embry politely but firmly disputed Patrick’s professed shock and disappointment, Patrick’s office issued a sullen follow-up statement. Per Embry, Parks was acting on behalf of both chambers: “In light of legislators’ questions, Comptroller Hegar requested a written analysis, and staff from the Speaker’s office and the Lieutenant Governor’s office together instructed the staff of the budget board to provide him one.” In the second statement the lieutenant-governor’s office insisted that Patrick “did not initiate this issue”. In their version of events, the concerns about Abbott’s line-item vetoes originated with the LBB, not the legislators: “The Lt. Governor’s staff informed the LBB Director that while she was free to write a letter in response to the Comptroller’s request, we would not sign on. The Speaker’s Office obviously decided not to sign on either.”
The day after that, the Texas Tribune’s Patrick Svitek reported that Patrick’s budget director had, like Straus’s, given LBB director Ursula Parks the all-clear to send the LBB’s memo over to the comptroller. The logical inference would be that both budget directors had reviewed the memo; in any case, neither registered any objections in the email exchange. A Patrick spokesman, in response to that development, insisted that the budget director had merely acceded to the inevitable caprices of a willful LBB director, hell-bent on self-expression and protected by the First Amendment: “As we pointed out in our original statement, we were clear that we would not sign the letter but we agreed that the executive director had a right to send it if she insisted.” With that, Patrick piped down; a potential showdown with Straus was averted, and public interest in the spat, which wasn’t exactly raging to begin with, has probably subsided.
Since we’re not mind readers, we’ll never know whether Patrick’s professed disappointment with the LBB was sincere or feigned. What’s interesting here is the lieutenant-governor’s vociferously professed disagreement itself. As noted above, Patrick is a joint chair of the LBB: in a sense, he called for an investigation into himself. He is the president of the Texas Senate: he passed the budget that Abbott is accused of unduly interfering with. And prior to the appearance of the LBB memo, Patrick proclaimed himself exceedingly proud of the budget, and the Senate, and the Senate’s budget process.
“It’s the best budget the Senate’s ever produced,”he told the Dallas Morning News on May 29th. On June 9th, he told the Fort Worth Star-Telegram that the Senate had, in his view, prevailed over the House when the two chambers met to reconcile their respective budgets in conference committee: “The budget follows the Senate bill on all the key issues.” When Abbott signed the budget, on June 20th, Patrick sent out a fulsome statement, declaring himself proud and offering special kudos to Jane Nelson, the Senate Finance Chair, “for her outstanding leadership and effectiveness.”
As mentioned, the bulk of Abbott’s cuts came at the expense of state facilities—appropriations that had been shored up thanks to the worthy efforts of Kevin Eltife, the outgoing Republican senator from Tyler. In my view, the facilities funding represented the Senate’s most sensible contribution to Texas’s 2016-17 budget, which I would summarize as “the House budget, with serious cuts to public education and Medicaid, which were necessary so the Senate could add an extra $330m to the House’s $565m border security plan and give Patrick $1.2bn in property tax relief rather than risk him forcing a special session by refusing to call the conference budget back to the floor at all.” Patrick would probably disagree with that assessment. But the point is that Parks, in defending the Lege, was defending the Legislature. Whether she’s right or wrong on the substance, her memo is a defense of the Lege’s biennial budget, which Patrick has described as a venture led by the Senate; she’s taking what is presumably Patrick’s side.
In other words, as the Dallas Morning News’ Bob Garrett noted, it’s really weird that Patrick would respond by taking the governor’s side. As Garrett says, this is a fight between the legislative and executive branches. To put it differently, Abbott’s line-item vetos may be considered an attempt, on the governor’s part, to pick on the Texas Senate (to say nothing of the long-suffering Texas House). Patrick, in response to Garrett’s question, offered an unconvincing defense: “I will always defend the power and authority of the lieutenant governor’s office and of the Legislature.” Not always, Governor Patrick. From now on, perhaps?
The episode may have been a rookie misstep on Patrick’s part. He was elected lieutenant governor in 2014, and his predecessor had held the job for more than a decade; the same is true for Abbott, and all year long, one of the recurring questions in Texas politics has been whether our new statewide officials are taking a new approach to their respective offices, or just trying to figure out how the printer works. But my hunch is that Patrick’s reaction reveals more than that. “I will never be running against Greg Abbott for governor,” he said in June, dismissing speculation that he has his eye on higher office in 2018. Maybe not: it’s hard to imagine him unseating an incumbent governor as well-funded and well-regarded as Abbott in the Republican primary. But the lieutenant governor, again, is a legislative-executive hybrid. By siding with Abbott over the Lege, Patrick tipped his hand about which role he prefers.