After puzzling over the legal arguments, I’ve come to some conclusions about the ongoing showdown between Governor Abbott and the Legislative Budget Board. The substantive debate is interesting and has potentially serious implications. But making sense of the respective legal arguments is not for the faint of heart, so I’ll summarize my conclusions before I lay out my reasoning:
This is a separation of powers case. On the surface, the adversaries are Greg Abbott and Ursula Parks, the director of the Legislative Budget Board, and they’re tousling over the meaning of a phrase: “items of appropriation.” But the underlying issue is the balance of power between the legislative and executive branches of state government. Abbott is advocating for a broader interpretation of the governor’s line-item veto power. For him to prevail would mark an expansion of the governor’s power and an abridgment of the Legislature’s.
The governor’s interpretation is intuitively appealing, and his reasoning is analytically sound, in my view. Since the question may eventually be resolved in court, state law may eventually conform to his interpretation. After years of covering the Texas Attorney General’s Office as helmed by Greg Abbott, I think everyone should proceed on the assumption that facing off against the guy’s team in court is bringing a knife to a gunfight. Frankly, I’m a little bit nervous about publicly disagreeing with the governor’s analysis in this case, not because I fear retribution, but out of a slightly superstitious concern for being totally wrong in public. But it can’t be helped. The philosophical debate has been presented in the form of a legal question, which the comptroller, Glenn Hegar, has to answer. I can see why Parks’ analysis would strike the governor as obnoxious, but on closer inspection, the law she’s assessing is in fact obnoxious from a governor’s perspective, because it blatantly favors the Lege’s authority in the budget process. As it stands, in other words, she is correct.
And because this is a separation of powers case, I hope the Lege prevails if the question does end up in court. As the governor’s office has observed, citing Alexander Hamilton in the Federalist Papers, “legislatures are not infallible”; Lord, he wasn’t kidding. But governors aren’t infallible either. Candidly, I like Abbott. I think his gubernatorial administration is off to a strong start, and having been seriously spooked by the Texas Senate’s collective defection from the state’s core values, I want the governor to be as strong as possible: I’m counting on him and the Texas House to keep our great state on stable footing. At the same time, Abbott is among the top-flight Texas conservatives who have influenced my own thinking over the years in various ways. He really has only himself to blame for this example: I’m a sworn enemy of executive overreach. I’m relieved that Parks is right, because I’m rooting for the Lege. Nothing against Abbott, but any extension of his constitutional authority is an extension to all future governors of Texas, whoever they may be. And although Abbott is extremely popular among the legislators, they need to be careful here. Any power they concede now will be conceded permanently. They shouldn’t give the governor any power a Lege might want to use someday. And they shouldn’t give Abbott any power that they wouldn’t trust a Dan Patrick or Wendy Davis to wield; there came a pharaoh who knew not Joseph.
And with that, let’s tackle some lawyering.
The disagreement concerns the scope of the governor’s line-item veto authority, which is established in the Texas Constitution, Article 4, Section 14, as follows: “If any bill presented to the Governor contains several items of appropriation he may object to one or more of such items, and approve the other portion of the bill.” A seemingly straightforward statement, but you’ll notice that the document doesn’t specify what it means by “items of appropriation.” As is often the case with the Texas Constitution, there’s no way to retroactively clarify what the people who drafted the document meant by the phrase, or whether they even considered the language carefully; this isn’t exactly the Magna Carta we’re talking about. But since the governor is only allowed to veto “items of appropriations”, the actual meaning of the phrase matters and has been continuously debated.
This round of debate was triggered by Abbott, who forced the question with his line-item vetoes to the 2016-17 budget bill, most of which struck out various budget riders. By doing so, the governor’s office said, he cut almost $300m from the budget as passed by the Lege; he also broke with precedent, by asserting that such riders qualify as “items of appropriation.” The governor’s reasoning is summarized in a two-page memo that circulated in his office. His argument, basically, is that the budget riders in question are blatant ruses. The Lege’s appropriations for the Facilities Commission, for example, included almost $1bn for Section (e), “Construction of Buildings and Facilities.” About $200m of this $1bn was intended for three specific projects, the details of which were laid out later, in budget riders that Abbott vetoed. According to the Lege, Section (e) would be the “item of appropriation” in that context: the governor could have vetoed the whole billion, or none of it. According to Abbott’s office, this is ridiculous; the budget riders were the functional equivalent of “items of appropriation”, regardless of the Lege’s hijinks: “The Legislature cannot use magic words to make an item veto-proof.”
Unnamed legislators, for obvious reasons, disagreed with Abbott’s interpretation. As a result, Joe Straus and Dan Patrick, on behalf of the House and Senate respectively, asked the Legislative Budget Board to assess Abbott’s vetoes, and send its analysis to Glenn Hegar, the comptroller. Or, if you take Patrick’s word for it, Straus asked the LBB to weigh in, and he stoically accepted their determination to do so. It’s not really important who called in the LBB. The point is that someone in the Lege asked Ursula Parks, the director of the Legislative Budget Board, to weigh in, and so she did. Her memo argues that Abbott’s vetoes exceeded his constitutional authority and represented a departure from precedent and tradition. An “item of appropriation”, she wrote, refers to an item that actually makes an appropriation of funds from the state treasury. The budget riders in dispute merely tell the state agencies what to do with those funds once appropriated; that being the case, per Parks, the governor can’t scribble them out.
After days of puzzling over everything, I realized that in addition to being irredeemably confusing, this debate is fundamentally vacuous. I was distracted by all the sophisticated legal reasoning and institutional knowledge; I was hypnotized by the magic words. Once the spell was broken, I saw that the governor’s office and the Legislative Budget Board are making the same argument: “items of appropriation” means “items of appropriation.” No one could disagree with that tautological truth. But what does “items of appropriation” mean? In the second memo from the governor’s staff (the 62-pager I mentioned Friday, only to be scooped by Ross Ramsey while distracted by Ken Paxton) the governor’s office lays out its case against the Lege at greater length, and argues that the LBB’s analysis is mostly semantic. Well, yeah. Of course it is. Parks is weighing in on Texas’s century-long debate over the actual meaning of deceptively banal phrase.
And so, after a solid week of being genuinely torn, I suddenly saw why Parks is clearly right. Analytically, I prefer Abbott’s definition of “items of appropriation”, and think it’s conceptually more coherent than than the Lege’s. At the same time,the governor’s office has fallen into a trap that gets me routinely. They’re making an argument based on analytical reasoning rather than Texas law. And I can empathize, because Texas law provides plenty of evidence for Alexander Hamilton’s observation about the infallibility of legislators, and yet there it is, smugly trumping all critics.
In this case, both the LBB and the governor agree that Jessen v Bullock, a 1975 Texas Supreme Court ruling, is the landmark ruling, and that its interpretation of this devilish phrase carries the day. So I checked Jessen, and found that Parks is correct.
You can read the ruling for yourself if you for some reason want the full story. Here’s the gist. Bob Bullock, then the comptroller, had declined to release funds that the Lege had appropriated, because the governor had vetoed a rider detailing the financing structure of the project at hand. And although Texas lore paints Bullock as the most fearsome person to ever haunt the dome, the Texas Supreme Court apparently didn’t see it that way. They ordered Bullock to unlock the vault:
“This rider…was not intended by the Legislature to appropriate funds, and therefore was not an “item of appropriation” which was subject to veto apart from the remainder of the bill.”
Emphasis added because finally we’re dealing with a phrase of clear meaning: “items of appropriations” means “items that the Legislature intends to have considered as items of appropriations.” There’s no caveats that would create an exception if the Lege’s intention is to goof around with budget gimmicks, or spite the governor, or because their intention was grotesquely misguided or anything like that. In the current case, the Lege obviously intended to appropriate $1bn to the Facilities Commission for the construction of buildings and facilities; the evidence is that they passed a budget including that appropriation. Why they want to do so is an interesting question. But I’m invoking Jessen, as it is apparently in fashion to do, as authoritative support for the following verdict: it doesn’t matter. The intention alone carries the day. The Texas Constitution protects the Legislature’s right to use magic words to veto-proof to budget, and dooms the governor to stew over their mischief.
To be fair, though, the Constitution does give the governor some recourse. The line-item veto authority may be narrower than Abbott would like, but it’s not entirely trivial; before Dennis Bonnen saved the constitutional spending cap by announcing that he wasn’t even going to ask the Ways & Means committee to vote on such a ridiculous gimmick, my only comfort was the knowledge that Abbott could ultimately fix the budget and forestall the 2017 shortfall that Dan Patrick was working to guarantee. Abbott can also veto the entire budget, and obviously he would do so if the Lege tried to prank him with a one-line budget: “Item of Appropriation: $209 billion for the state government. See riders for further instructions.”
And the showdown itself has given me the impression that for Governor Abbott, the office’s statutory power is tip of the iceberg. He’s been framing this a fight between himself and Parks: “Unelected bureaucrats at the Legislative Budget Board are seeking to strip me of line-item veto authority in order to grow government and increase spending and debt.” I can think of a couple of legislators who are gullible enough to take that explanation at face value. But I can think of far more who are smart enough to see that even if Parks is a seditious leftist with an unquenchable thirst for power, Abbott is trying to vanquish her by expanding his power–by wresting power from the Lege. Several sources I’ve spoken with this week, former members of the Legislature, have confirmed that this is the obvious implication. One source, actually, chewed me out for even asking such a stupid question.
And yet there’s exactly one legislator—the Speaker–who’s publicly spoken up on behalf of himself, his branch of government, and the hallowed concept that Texans aren’t shy to defend against, say, Barack Obama’s efforts to replace Congress with half-baked executive memos. One: Joe Straus. What does that tell you? It tells me that this governor, at least, shouldn’t waste his time quibbling about the exact scope of the line-item veto authority. I mean, if he gets his way all the future governors should remember to send him a thank-you note. But really. Abbott is arguing that the Lege is constitutionally obligated to give him their milk money, and 180 of the 181 people directly affected haven’t registered a word of disagreement in public. The governor’s office may be a weak one. But Abbott, clearly, has all the power he needs.
